SHAJAN SEBASTIAN v. ADDITIONAL DISTRICT MAGISTRATE, KOZHIKODE; CHAKKITTAPARA GRAMA PANCHAYATH; FOREST RANGE OFFICER, PERVANNAMUZHI RANGE; DIVISIONAL FOREST OFFICER, KOZHIKODE & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 8[TH] DAY OF JUNE 2023 / 18TH JYAISHTA, 1945 WP(C) NO. 10866 OF 2012** ## **PETITIONER/S:** SHAJAN SEBASTIAN AGED 42 YEARS S/O E.T. DEVASSIA, EETA THOTTATHIL HOUSE, POOZHITHODU P.O., PERUVANNAMUZHI, KOZHIKODE. BY ADVS. SRI.P.SANJAY SRI.GLEN ANTONY SMT.A.PARVATHI MENON SMT.M.VANAJA ## **RESPONDENT/S:** 1 THE ADDITIONAL DISTRICT MAGISTRATE, KOZHIKODE KOZHIKODE-673020. 2 CHAKKITTAPARA GRAMA PANCHAYATH CHAKKITTAPARA, KOZHIKODE, REPRESENTED BY ITS SECRETARY673526. 3 FOREST RANGE OFFICER PERVANNAMUZHI RANGE, KOZHIKODE-673572. 4 DIVISIONAL FOREST OFFICER KOZHIKODE-643001. BY ADVS. GOVERNMENT PLEADER SRI.ANTONY MUKKATH SRI. SAJAN, SPL GOVERNMENT PLEADER SRI.O.V.RADHAKRISHNAN SR. SMT.K.RADHAMANI AMMA SRI.K.RAMACHANDRAN THYKOODAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 10866 OF 2012** **2** ## **JUDGMENT** Challenge in the present writ petition has been laid to notice Ext.P6 issued by the Forest Range Officer dated 22.2.2012. 2. The facts leading to challenge of the stop memo are that the petitioner had been operating a quarry for several years and in that regard had been issued a latest permit from Geologist Ext.P1 dated 2.9.2010. For carrying on the aforementioned activity had obtained a explosive licence valid upto 31.3.2012, Ext.P2. When the licence was to expire on 31.3.2012, submitted an application for renewal as early as on 9.2.2012, Ext.P2(a). Kerala State Pollution Control Board had also granted a consent valid upto 31.7.2014. Panchayath had also issued licence to carry on the activity valid upto 31.3.2012, Ext.P4 much less the possession certificate issued by the Village Officer. 3. Learned counsel appearing on behalf of the petitioner submitted that the Malabar Wildlife sanctuary was notified recently whereas petitioner's quarry had been functioning for years together. There were no complaints from any quarters regarding the disturbance or violation of the provisions of the Wildlife Act. However the Senior Official visited the sanctuary and found that the quarry was within the distance of 100 kilometers **WP(C) NO. 10866 OF 2012** **3** and issued a direction to the petitioner to stop the quarry which was challenged in this Court vide W.P.(C) No.6388 of 2012. In the meantime, the petitioner had made a representation to the DFO, Ext.P9 which was received as per A/D card dated 27.3.2012, Ext.P10. In the aforementioned writ petition respondent took the contention that no order was passed on the representation. However on receipt of Ext.P11, the 4[th] respondent passed an order dated 22.6.2012, Ext.P12 refused to recall stop memo on the premise that the mining activities near wildlife sanctuary in view of the judgment of the Supreme Court, within the radius of 1 km cannot be permitted. It was submitted that the said order is not backed by any demarcation report to establish the distance between the quarry and the sanctuary is within one kilometer. This Court had already interdicted the order despite the respondent did not renew the explosive licence; therefore the petitioner could not carry out the activity of quarry. Despite having all permissions from the other statutory authorities application for renewal of explosive licence duly acknowledged by the respondents could not have been rejected in the manner and mode. 4. On the other hand, learned counsel appearing on behalf of the Forest Department, 4[th] respondent submitted that the Malabar Wildlife Sanctuary was constituted in the year 2009 as **WP(C) NO. 10866 OF 2012** **4** per the Government order dated 5.6.2009. The sanctuary forms a part of the Western Ghats bio-diversity hot spot. It comes under the Nilgiri Biosphere Reserve and also forms a part of the Waynad Elephant Reserve. The steep hills, deep valleys with hillocks, perennial water sources combined with altitudinal variation makes it an ideal habitat for variety of fauna and flora. The heavy noise generated while quarrying affect the wildlife adversely. Unlike human beings, wild animals like sambar deer, spotted deer, giant squirrel birds etc. are highly sensitive to heavy sound which could lead to the damage of many wildlife animals. As per section 29 of the wildlife (protection) Act, 1972 no person is permitted to destroy, exploit or remove any wildlife including forest produce from a sanctuary or destroy or damage or diver the habitat of wild animal by any act whatsoever. In support of the contention relied upon para 44 of the judgment rendered by the Supreme Court in **T.N Godavarman Thirumulpad v. Union of India and others** **(2022 KHC 6613)** . Similar is the contention of the counsel representing the 2[nd] respondent, Panchayath. 5. I have heard the learned counsel for the parties and appraised the paper book. Paragraph 44 of the judgment reads as under as well as paragraph 4 of the counter. 44. We accordingly direct: **WP(C) NO. 10866 OF 2012** **5** (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 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 per 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 **WP(C) NO. 10866 OF 2012** **6** 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 it necessary for maintaining a wider or larger ESZ in respect of any national park or wildlife sanctuary, such body or individual shall approach the CEC. In such a situation the CEC shall be at liberty to examine the need of a wider ESZ in respect of any national park or wildlife sanctuary 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 this Court with its recommendations. (h) 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 this Court on 4th December 2006 in the case of Goa Foundation (supra) and also contained in the Guidelines of 9th February 2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till a final decision in that regard is arrived at. (i) I.A. No. 1412 of 2005 and I.A.No.117831 of 2019 do not relate to the issues involved in I.A. No.1000 of 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 at this stage. (k) The application of the State of 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 of 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 a decision in regard to the draft **WP(C) NO. 10866 OF 2012** **7** proposal for ESZ made by the State of Maharashtra to the extent of 03.89 kilometres and the MoEF&CC shall take final decision on that basis within a period of three months, if said decision has not already been taken. (m) Prayers for impleadment of the applicants in I.A. Nos. 984 of 2003, 1026 of 2004, 1123 of 2004, 1197 of 2004 and 1251 of 2004 are allowed. Necessary amendments may be carried out in these regards. (n) For the reasons already given, however, prayers of the applicants in I.A. Nos.982 of 2003, 1027 of 2004, 1124 of 2004, 1198 of 2004, 1210 of 2004, 1250 of 2004 and 1512 of 2006 are rejected. (o) The CEC shall quantify the compensation to be recovered from each miner indulging in mining activities within the Jamua Ramgarh sanctuary in violation of any statutory provision or order of this Court. Specific recommendations for compensatory afforestation, reclamation, clearing overburden dumping as also compensation in monetary units for degradation of forest resources shall also be made. A further set of recommendations concerning confiscation of earth moving equipments and other machineries lying within or in the periphery of the said sanctuary shall be made by the CEC. Recommendations shall be made within a period of four months before this Court in the form of an application. This Court shall consider passing appropriate order upon going through such application. The exercise concerning such reparation, including quantifying compensation shall be undertaken upon giving the mining operator, State and MoEF&CC opportunity of hearing. (p) 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 this Court in this order, this order shall prevail over any such order which may be contrary to these directions. (q) We have already observed that there are certain overlapping issues involved in this writ petition and the cases of Goa Foundation (Writ Petition (C) No.460 of 2004) and (Writ Petition (C) No.435 of 2012). We request the Hon’ble the Chief Justice of India to consider having the present writ petition i.e. In Re: T.N. Godavarman Thirumulpad v. Union of India & Ors., W.P.(C) No.460 of 2004 (Goa Foundation v. **WP(C) NO. 10866 OF 2012** **8** Union of India) as also W.P. (C) No.435 of 2012 (Goa Foundation v. Union of India & Ors.) be heard together before the same Bench. The registry may place this order before the Hon’ble the Chief Justice of India. ## Paragraph 4 of the counter affidavit: 4. The petitioner in this WP(C) has been operating a quarry for the past several years causing severe damage to the environment especially the Moothattupuzha River and the Malabar Wildlife Sanctuary. The quarry is situated at a distance of hardly 1 Km from the boundary of the Sanctuary The dust generated from the quarry affects the quality of water in Moothattupuzha river and damages the habitat of wildlife in Malabar Wildlife Sanctuary. The heavy noise generated while quarrying affects the wildlife adversely. Unlike human beings, wild animals like sambar deer, spoted deer, giant squirrel birds etc are highly sensitive to heavy sound. So this heavy sound alone can lead to the damage of many wildlife animals. Moothattupuzha river flows through the boundary of the sanctuary. Wild animals depend on this river for drinking water. The adjacent forest area is having steep terrain. The availability of water in this area is scarce. So Moothattupuzha river is the source of water for wild animals. As per Section 29 of the Wildlife [Protection] Act 1972 "No person shall destroy, exploit or remove any wildlife including forest produce from a sanctuary or destroy or damage or divert the habitat of any wild animal by any act whatsoever...... The petitioner by quarrying within 1 K.M from the boundary of this Sanctuary causes damage to and destroys the habitat of wild animals residing in the wildlife sanctuary. The averment that the 3rd Respondent without jurisdiction suddenly issued an order to stop the functioning of the quarry under the assumption that he has jurisdiction in the matter invoking Section 29 of the Wildlife [Protection] Act 1972 is not true. The 3rd Respondent is having jurisdiction to stop the functioning of the quarry since the functioning of the quarry clearly damages and destroys the habitat of wild animals in the Sanctuary in addition to causing damage to the clean environment and also pollution to the pure water of Moothattupuzha river. 6. The said paragraph of the counter has not been rebutted by any rejoinder or reply. It is settled law that the **WP(C) NO. 10866 OF 2012** **9** contents of the counter affidavit if not rebutted, are deemed to be true. Petitioner has not been able to place on record any material to belie the contents that the whole quarry is situated within the kilometer of 1km from the wildlife sanctuary or otherwise thus in view of the ratio of decidendi culled out in the judgment, could not have been issued explosive licence as it would seriously affect the wildlife. Issuance of the licence under the pollution control board, Geologists and other authorities would not be sufficient for carrying out the activity as there has to be adherence to all the provisions applicable, particularly Section 29 of the Wildlife Act, 1971. The same reads thus: [29. Destruction, etc., in a sanctuary prohibited without a permit.—No person shall destroy, exploit or remove any wild life including forest produce from a sanctuary or destroy or damage or divert the habitat of any wild animal by any act whatsoever or divert, stop or enhance the flow of water into or outside the sanctuary, except under and in accordance with a permit granted by the Chief Wild Life Warden, and no such permit shall be granted unless the State Government being satisfied in consultation with the Board that such removal of wild life from the sanctuary or the change in the flow of water into or outside the sanctuary is necessary for the improvement and better management of wild life therein, authorises the issue of such permit: Provided that where the forest produce is removed from a sanctuary the same may be used for meeting the personal bona fide needs of the people living in and around the sanctuary and shall not be used for any commercial purpose. Explanation.—For the purposes of this section, grazing or movement of livestock permitted under clause (d) of section 33 shall not be deemed to be an act prohibited under this section.] No material has been placed on record to belie the averments made in paragraph 4 of the counter affidavit. For the **WP(C) NO. 10866 OF 2012** **10** reason aforementioned, I am of the view that the stop memo issued by the respondent was perfectly legal and justified and do not call for any interference. Writ petition stands dismissed. Stay granted by this Court is vacated. **SD/-** **AMIT RAWAL JUDGE** **WP(C) NO. 10866 OF 2012** **11** PETITIONER'S EXHIBITS: Exhibit P.1 True copy of the latest permit dated 01.02.2012 Exhibit P-2 True copy of the sanction from Explosive Department showing valid upto 31/3/2012 Exhibit P-2(a) True copy of application made before the 1ST respondent Exhibit P-3 True copy of the integrated consent dated 9.8.2011 from the Kerala State Pollution Control Board Exhibit P-4 True copy of the licence from Chakkittapara Grama Panchayath dated 02.12.2011 Exhibit P-4(a) True copy of the acknowledgement for Receipt application made before the Panchayat Exhibit P-5 True copy of the Possession Certificate dated 24.5.2010 issued by the Village Officer, Chembanoda Exhibit P-6 True copy of the order dated 22-02-2012 Exhibit P-7 True copy of the representation dated 02-03-12 Exhibit P-8 True copy of the judgment dated 14-03-2012 in W.P (C) No. 6388/2012 Exhibit P-9 True copy of the representation dated 22.02.2012 **WP(C) NO. 10866 OF 2012** **12** Exhibit P-10 True copy of the registered A/D Card dated 27-032012 Exhibit P-11 True copy of the representation dated 22-05-2012 Exhibit P-12 True copy of the Order No.G3-2712/12 dated 22-062012 of the Divisional Forest Officer, Kozhikode.