P.R. VIJAYAKUMAR v. Director of Mining and Geology Department, Government of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` THURSDAY, THE 22[ND] DAY OF DECEMBER 2022 / 1ST POUSHA, 1944 ``` ## **`WP(C) NO. 38718 OF 2022`** ## **`PETITIONER`** ## **`P.R. VIJAYAKUMAR`** ``` AGED 58 YEARS PATTATH HOUSE, AMALA NAGAR P. O, THRISSUR DISTRICT-680545 BY ADVS. ``` ``` PHILIP J.VETTICKATTU SAJITHA GEORGE P.M.JAYALAKSHMI ``` ## **`RESPONDENTS:`** - **`1 THE DIRECTOR OF MINING AND GEOLOGY DEPARTMENT GOVERNMENT OF KERALA, KESAVADAȘAPURAM, PATTOM P.O., THIRUVANANTHAPURAM, PIN 695 001.`** - **`2 THE MINISTRY OF ENVIRONMENT FOREST & CLIMATE CHANGE, INDIRA PARYAVARAN BHAWAN, JORBAGH ROAD, NEW DELHI - 110 003, REPRESENTED BY ITS SECRETARY.`** - **`3 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.`** - **`4 STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA KERALA),`** - **`4TH FLOOR, KSRTC BUS TERMINAL COMPLEX, TRIVANDRUM - 695011,REPRESENTED BY ITS MEMBER SECRETARY.`** - **`5 THE CHIEF WILD LIFE WARDEN, FOREST HEAD QUARTERS, VAZHUTHACAUD, FORD THIRUVANANTHAPURAM-695014.`** - **`6 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.`** - **`7 THE DIVISIONAL FOREST OFFICER, THRISSUR DIVISION, AYYANTHOLE, THRISSUR-680003`** - **`THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON`** - **`22.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** ``` WP(C) NO.38718 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 22[nd] day of December, 2022 The petitioner is a grantee of Letter of Intent with respect to an extent of 0.9907 Hectares of land in Re-Survey No.53/2 of Venganellur Village, Thalappilly Taluk in Thrissur District, for conducting quarrying operations. 2. The petitioners is aggrieved by condition No.3(3) imposed in the Environmental Clearance granted to him which requires that as the petitioner’s quarry site is located within 10 Km. distance from Peechi-Vazhani Wild Life Sanctuary, as per OM dated 08.08.2019 of MoEF & CC, clearance from the Standing Committee of the National Board for Wildlife is mandatory for starting quarry and that the petitioner-project proponent shall obtain a clearance from the Standing Committee of the National Board for Wildlife (SCNBWL) before starting any activity at site. ``` WP(C) NO.38718 OF 2022 ``` ``` 3 ``` 3. The Central Government has issued Ext.P4 draft notification prescribing Eco Sensitive Areas of Peechi-Vazhani Wildlife Sanctuary. The petitioner would urge that approval of the National Board for Wildlife is required only for construction of commercial tourist lodges, hotels, zoos and safari parks inside a sanctuary. The National Green Tribunal in _**Amit Kumar v. Union of India and others**_ (Miscellaneous Application No.684/2015) passed an order dated 18.08.2015 holding that distance of 1 Km. from the boundaries of National Park and Wildlife Sanctuaries could be a relevant consideration as recorded in the judgment of the Hon'be Apex Court in the case of Goa Foundation (II) case. The petitioner would urge that in view of the said observation made by the National Green Tribunal, there can be no prohibition under law to carry on mining activity beyond 1 Km. of the boundaries of National Parks or Wildlife Sanctuaries. 4. The petitioner would further submit that the Ministry of Environment and Forests issued Ext.P3 OM dated 08.08.2019 ``` WP(C) NO.38718 OF 2022 ``` ``` 4 ``` prescribing procedure for consideration of developmental projects located within 10 Km. of National Park / Wildlife Sanctuary seeking Environmental Clearance. Clause 4 (iv) of Ext.P3 provided that proposals involving mining of minerals within the ESZ or 1 Km from the boundaries of National Parks and Sanctuaries whichever is prohibited by the Hon'be Apex Court, clearance from SCNBWL is mandatory. According to the petitioners, no clearance from the SCNBWL is required for carrying out mining beyond 1 Km distance. 5. The petitioner was however informed that the proposed quarry area is within 10 Km. distance from PeechiVazhani Wildlife Sanctuary and therefore clearance from Wildlife Warden is required. The petitioner informed the Administrator that the Peechi-Vazhani Wildlife Sanctuary is the closest protected area/wildlife sanctuary from the proposed quarry which is situated at a distance of 4.8 Km. 6. Ext.P2 is the copy of the Environmental Clearance issued by the State Environment Impact Assessment ``` WP(C) NO.38718 OF 2022 ``` ``` 5 ``` Authority. General Condition No.3(3) in Ext.P2 stipulated that as the project proponent's quarry site is located within 10 Km distance from Peechi-Vazhani Wildlife Sanctuary, as per OM dated 08.08.2019, clearance from SCNBWL is mandatory for starting a quarry and the project proponent shall obtain clearance from SCNBWL before starting any activity at site. 7. The respondents entered appearance and resisted the writ petitions. On behalf of the respondents, it is submitted that OM dated 08.08.2019 has been issued by the Director, Government of India, MoEF & CC (IA Division) laying down procedure for consideration of developmental projects located within 10 Km. of National Park / Wildlife Sanctuary seeking Environmental Clearance under the provisions of the Environmental Impact Assessment (EIA) Notification, 2006. 8. In Ext.P3, it has been made clear that proposals involving developmental activity/project located within the notified Eco-Sensitive Zones (ESZ) shall be regulated and governed by the concerned ESZ notification. However, for the ``` WP(C) NO.38718 OF 2022 ``` ``` 6 ``` developmental project/activity located within the notified ESZ and covered under the schedule of the EIA Notification 2006, prior clearance from Standing Committee of the National Board for Wildlife (SCNBWL) is mandatory. In such cases, the project proponent shall submit the application simultaneously for grant of Terms of Reference as well as wildlife clearance. 9. For proposals involving developmental activity/project located outside the stipulated boundary limit of notified ESZ and located within 10 Km. of National Park/Wildlife Sanctuary, prior clearance from Standing Committee of the National Board for Wildlife (SCNBWL) may not be applicable. However, such proposals from environmental angle including impact of developmental activity/project on the wildlife habitat, if any, would be examined by the sector specific Expert Appraisal Committee and appropriate conservation measures in the form of recommendations shall be made. These recommendations shall be explicitly mentioned in the environmental clearance letter and shall be ensured by the member secretary ``` WP(C) NO.38718 OF 2022 ``` ``` 7 ``` concerned. For proposals involving developmental activity/project located within 10 Km. of National Park/Wildlife Sanctuary wherein final ESZ notification is not notified or ESZ notification is in draft stage, prior clearance from Standing Committee of the National Board for Wildlife (SCNBWL) is mandatory. In such cases, the project proponent shall submit the application simultaneously for grant of Terms of Reference/Environmental Clearance as well as Wildlife Clearance. Proposals involving mining of minerals within the ESZ (or) one kilometre from the boundaries of National Parks and Sanctuaries whichever is higher, is prohibited in accordance with the order of the Hon'ble Supreme Court dated 04.08.2006 in the matter of **T.N. Godavarman Thirumulpad v. Union of India** in W.P.(C) No.202 of 1995 and dated 21.04.2014 in the matter of Goa Foundation v. Union of India in W.P.(C) No.435 of 2012. It is relying on the mandatory directions contained in the OM dated 08.08.2019 that the petitioner was required to obtain Wildlife Clearance. 10. The petitioner is obliged to obtain clearance from the SCNBWL for operating quarry. The Central Government is empowered to impose restrictions in the nature of one imposed as per the Office Memorandum referred above. Prior clearance from SCNBWL is required for projects and development activities within 10 Km. from National Parks. The writ petition filed by the petitioner is therefore without any merit and is liable to be dismissed, urged the respondents. 11. I have heard the learned counsel for the petitioner, the learned Special Government Pleader (Forests) representing the 5[th] respondent, the learned DSGI and the learned Standing Counsel for SEIAA. 12. After perusing the writ petition and hearing the counsel appearing on either side, I find that the Hon'be Apex Court in _**T.N. Godavarman Thirumulpad v. Union of India**_ [2022 (3) KLT 739 (SC)] has considered the issue. The Hon'be Apex Court in _**T.N. Godavarman Thirumulpad**_ (supra) gave the following directions: ``` WP(C) NO.38718 OF 2022 ``` ``` 9 ``` “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 9th 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 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. ``` WP(C) NO.38718 OF 2022 ``` ``` 10 ``` (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 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. ``` WP(C) NO.38718 OF 2022 ``` ``` 11 ``` (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 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. ``` WP(C) NO.38718 OF 2022 ``` ``` 12 ``` (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 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.” ``` WP(C) NO.38718 OF 2022 ``` ``` 13 ``` 13. 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. 14. 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 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 9[th] February, 2011 shall be implemented. 15. 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 ``` WP(C) NO.38718 OF 2022 ``` ``` 14 ``` 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. 16. In the case of the proposed project of the petitioner, the project site is 4.8 Km. away from the boundary of the Peechi-Vazhani Wildlife Sanctuary. The ESZ Zone proposed for the Peechi-Vazhani Wildlife Sanctuary is only to an extent of 4.5 Km on the northern boundary of the Peechi-Vazhani Wildlife Sanctuary. The Hon’ble Apex Court has held in _**In Re: T.N. Godavarman Thirumulpad v. Union of India**_ (supra) that if wider buffer zone is proposed for a particular Wildlife Sanctuary, the ESZ covering the area beyond one Kilometer as proposed shall be maintained. The project of the petitioner is beyond one Kilometre and even beyond 2 Kms proposed ESZ Zone. In view of the directions given by the Hon'be Apex Court and following the judgment of this Court in W.P.(C) ``` WP(C) NO.38718 OF 2022 ``` ``` 15 ``` No.19710/2022, the writ petition is allowed to the extent of quashing General Condition No.3(3) of Ext.P2. There will be a direction to the respondents to consider the application for grant of mining lease to the petitioner without insisting for clearance from SCNBWL. sd/- **N.NAGARESH JUDGE** hmh ``` WP(C) NO.38718 OF 2022 ``` ``` 16 ``` ## **`APPENDIX OF WP(C) 38718/2022`** ## **`PETITIONER EXHIBITS`** **`Exhibit P1 TRUE COPY OF THE LETTER OF INTENT DATED 11/06/2019, ISSUED BY THE SENIOR GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, THRISSUR Exhibit P2 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 20/07/2022 ISSUED BY THE 4TH RESPONDENT Exhibit P3 TRUE COPY OF OFFICE MEMORANDUM DT.8-82019 ISSUED BY THE 2ND RESPONDENT Exhibit P4 TRUE COPY OF THE DRAFT NOTIFICATION BEARING NO.4271(E) DATED 25/11/2020 ISSUED BY THE COMPETENT AUTHORITY Exhibit P5 TRUE COPY OF THE RELEVANT PAGES OF THE APPLICATION FOR NOC SUBMITTED BY THE PETITIONER THROUGH ONLINE Exhibit P6 THE TRUE COPY OF THE JUDGEMENT PASSED BY THIS HON'BLE COURT IN SIMILAR CASE BEARING WP` Ⓒ** **`NO. 12829/2022 DATED 19/08/2022 Exhibit P7 TRUE COPY OF THE JUDGEMENT PASSED BY THIS HON'BLE COURT IN SIMILAR CASE BEARING WPC NO19710/2022 DATED 27/07/2022 Exhibit P8 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN SIMILAR CASE BEARING WP` Ⓒ** **`NO. 33160/2022 DATED 19-102022`**