Summary
The Union sought modification of the order of 3 June 2022 which had mandated a minimum one-kilometre Eco-Sensitive Zone around every National Park and Wildlife Sanctuary, required the PCCF's permission for continuing existing activities within it, and banned all new permanent structures. A three-Judge Bench allowed the application, holding that ESZs must be Protected-Area specific and notified under Rule 5 of the Environment (Protection) Rules, 1986 and the Guidelines of 9 February 2011, that the uniform one-kilometre and no-construction directions would cripple millions of villagers living in ESZs and were unworkable, and that the prohibited, regulated and permitted lists in the Guidelines and ESZ notifications must instead be strictly followed; the ban on mining within one kilometre of a Protected Area was extended across India.
Issues
- Whether the direction in paragraph 56.1 of the order dated 3 June 2022 requiring a minimum one-kilometre ESZ around every Protected Area should apply where final or draft ESZ notifications have been issued or proposals received, or where Protected Areas lie on inter-State boundaries.
- Whether the direction in paragraph 56.5 requiring PCCF permission for continuing existing activities within the ESZ and prohibiting all new permanent structures should be modified in view of the hardship to residents and the inbuilt statutory safeguards.
- Whether the ban on mining within one kilometre of National Parks and Wildlife Sanctuaries, earlier confined to Goa, should apply throughout India.
Provisions considered
- Rule 5 (read with Section 3 of the Environment (Protection) Act, 1986), Environment (Protection) Rules, 1986Prescribes the detailed procedure, including draft notification, 60 days for objections and consideration before final notification, for restricting activities in an area; once an ESZ notification issues after this procedure and expert scrutiny, the ESZ must be as notified, so a uniform court-imposed minimum width is inappropriate. (¶¶ 29, 30, 31, 43, 44, 45, 55, 56, 57, 59, 62)
- Paragraphs 4 and 6 and Annexure I (prohibited, regulated and permitted activities), Guidelines of the Ministry of Environment and Forests dated 9 February 2011 for declaration of Eco-Sensitive ZonesThe Guidelines, already held reasonable in the 2022 order, require ESZs to be flexible, site-specific and regulatory rather than prohibitive, and list activities as prohibited, regulated or permitted; the Court directed their strict compliance in place of the earlier blanket directions. (¶¶ 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 51, 53, 66)
- Sections 18 to 25A and Section 5C(1), Wild Life (Protection) Act, 1972Rights of residents inside Protected Areas are settled and they are rehabilitated under these provisions, but no such settlement exists for residents of ESZs, who continue their daily avocations; this distinction underlies the need to regulate rather than prohibit activities in ESZs. (¶¶ 10, 34, 52)
- NBWL or Standing Committee recommendation for scheduled activities in ESZs, Office Memorandum of MoEF & CC dated 17 May 2022 read with the EIA Notification 2006Treated as an inbuilt safeguard against rampant construction; the Union and States were directed to follow it strictly when granting environmental and forest clearances in ESZs and other areas outside Protected Areas. (¶¶ 50, 66)
Held
- The Court's earlier orders never fixed a minimum ESZ width; the area to be declared an ESZ cannot be uniform and must be Protected-Area specific, since it may be ten kilometres on one side and 500 metres on another, or constrained by inter-State boundaries, seas or rivers. The direction in paragraph 56.1 of the order of 3 June 2022 therefore does not apply to ESZs for which draft or final notifications have been issued or proposals received, nor to Protected Areas on inter-State borders or sharing common boundaries. (¶¶ 55, 57, 58, 61, 64)
- Requiring PCCF permission for every continuing activity and banning all new permanent structures in ESZs would prevent hundreds of villages from rebuilding homes, schools, dispensaries, roads and eco-development structures, leave the PCCF with no other work, and intensify rather than avoid man-animal conflict; the direction is impossible to implement and is replaced by strict adherence to the 2011 Guidelines and the specific ESZ notifications. (¶¶ 46, 47, 48, 49, 50, 51, 52, 66)
- ESZ notifications issued after the procedure under Rule 5 of the 1986 Rules and scrutiny by an expert committee drawn from thirteen institutions govern the extent of the ESZ; the direction in paragraph 56.6 requiring States to approach the CEC and MoEF & CC to dilute the one-kilometre width is accordingly modified. (¶¶ 43, 44, 45, 55, 58, 59)
- The Central Government must give wide publicity to draft ESZ notifications under Rule 5(3)(a); a final notification under Rule 5(3)(d) shall not take effect for 30 days from issue, and any person aggrieved by it may approach the Supreme Court directly in these proceedings. (¶¶ 56, 62, 63)
- It has been the Court's consistent view that mining within one kilometre of a Protected Area is hazardous to wildlife; the prohibition earlier limited to Goa is made applicable across India, so that mining within a National Park or Wildlife Sanctuary and within one kilometre of its boundary is not permissible. (¶¶ 60, 65)
Result
I.A. No. 131377 of 2022 allowed; paragraphs 56.1, 56.4, 56.5 and 56.6 of the order dated 3 June 2022 modified: no uniform one-kilometre ESZ where notifications or proposals exist or on inter-State boundaries; mining banned within one kilometre of all National Parks and Wildlife Sanctuaries; the 2011 Guidelines, ESZ notifications and the Office Memorandum of 17 May 2022 to be strictly followed; draft notifications to be widely publicised and final notifications deferred 30 days, with liberty to approach the Court. Other I.As disposed of accordingly. No costs.