In a recent judgement dated April 26, a three-judge bench of Justices BR Gavai, Vikram Nath and Sanjay Karol backtracked on its last year’s judgment giving strict guidelines for eco-sensitive zones around National Parks and Wildlife areas which are meant to act as buffers for prohibited activities to protect these sensitive ecosystems. The government came before the court seeking modification in this regard and the same was granted by the court. Whereas in the impugned order of June 3, 2022 the court had said that “national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary”, the same has now been diluted to state that the ESZ will be as per notifications issued by the union ministry.
Government seeks modifications
The clarification sought in the order dated June 3, 2022 was that the Eco-Sensitive Zones (ESZs) which have already been notified (final and draft) by the Ministry of Environment Forests and Climate Change (MoEF) or the proposals for which have been received in the Ministry be exempted from the directions. A modification was also sought that paragraph 56.1 of the order be not made applicable where National Parks and Wildlife Sanctuaries are located along inter-State boundaries and/or common boundaries.
Paragraph 56.1 of the order read as follows:
“56.1. 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 9-2-2011 shall be strictly adhered to. For Jamua Ramgarh Wildlife Sanctuary, it shall be 500 m”
Modification were also sought in paragraph 56.5 which stated that if any activity (which is not a prohibited activity) is being already carried in such ESZ around a national park or sanctuary, it may continue with permission from the concerned Principal Chief Conservator of Forests (PCCF) and such permission may be granted (for any activity not so prohibited as per February 9, 2011 guidelines) if they were in place before the order was passed. The paragraph also said that no new permanent structure can come up in the ESZ.
The judgement dated June 3, 2022 may be read here:
The February 9, 2011 guidelines were framed after consulting the National Board for Wildlife as well as state and UT governments. The government submitted that the paragraph 56.5 in the 2011 order can cause hardships to residents of ESZs. The union government as well as many state governments appearing before the court stated that there cannot be a uniform boundary for a particular National Park or Wildlife Sanctuary. It was further argued that there is no settlement of rights for [persons living in ESZs and in such areas since people are residing, various developmental activities like construction of schools, dispensaries, anganwadis are required to be undertaken. Further, it would mean that persons residing there cannot construct new homes and getting permission from PCCF would be tedious as well.
Background: History of order passed on ESZs / buffer zones
On September 16, 2005 an order was passed in [(2006) 5 SCC 25] which restricted mining activities in buffer zones even with any temporary permit. The order also asked MoEF to tell the court its views on buffer zones after consulting with NBWL.
On August 4, 2006 [(2010) 13 SCC 740] was with regards to banning the mining activities in the National Parks, Sanctuaries and forest areas and laid down pre-conditions for granting temporary work permits.
On December 4, 2006 [2011) 15 SCC 791] the court expressed its anguish towards various state governments for not responding to the letter issued by MoEF asking them to identify suitable areas. This order also referred to a decision dated January 21, 2002 that directed to notify the areas within 10 kilometres of the boundaries of National Parks and Sanctuaries as ESZs. The MoEF letter had made a departure from this directions of “10 km” buffer zone.
In order passed on April 21, 2014 in Goa Foundation v. Union of India and Others [(2014) 6 SCC 590] the court had observed that there shall be no mining activity within one kilometre of the safety zone around National Park or Wildlife Sanctuary and that this has to be enforced. The court had also directed MoEF to issue the notification of ESZs around the National Park and Wildlife Sanctuaries of Goa within 6 months.
In an order dated December 11, 2018, the court noted that the central government had submitted that there were 104 National Parks and 558 Wildlife Sanctuaries making a total of 662 National Parks and Wildlife Sanctuaries in the country and that while proposals were received form states, 21 National Parks and Wildlife Sanctuaries still lacked proposals. The Court therefore expected the MoEF & CC to actively pursue the preparation of the draft Notification and to issue a final Notification at the earliest. The court also expressed anguish that even 12 years later no effective steps were taken by state governments and thus directed that an area of 10 kilometres around these 21 National Parks and Wildlife Sanctuaries be declared as ESZs.
Guidelines
The February 2011 guidelines refer to a meeting of the Indian Board for Wildlife held on January 21, 2002, in which “Wildlife Conservation Strategy-2002” was adopted wherein under point it was envisaged that lands falling within 10 kilometres of the boundaries of National Parks and Sanctuaries should be notified as eco-fragile zones.
The guidelines stated that:
· the purpose of declaring ESZs around National Parks and Sanctuaries is to create some kind of Shock Absorber for the Protected Areas
· the activities in the ESZs would be of a regulatory nature rather than prohibitive nature
· many of the existing Protected Areas have already undergone tremendous development in close vicinity to their boundaries (such as Guindy National Park, Tamil Nadu, Sanjay Gandhi National Park, Maharashtra) therefore that defining the extent of ESZs around Protected Areas will have to be kept flexible and Protected Area specific.
· as a general principle, the width of the ESZs could go up to 10 kilometres around a Protected Area
· in case where sensitive corridors, connectivity and ecologically important patches, crucial for landscape linkage, are even beyond 10 kilometres width, these should be included in ESZs
· first step to create an inventory of land use patterns operating around the protected areas and a Committee could be formed to suggest extent of ESZs, best methods to manage them etc
· where the boundary of a Protected Area abuts the boundary of another State/Union Territory where it does not form part of any Protected Area, it should be the endeavour of both the State/Union Territory Governments to have a mutual consultation and decide upon the width of the ESZs around the Protected Area in question.
· guidelines are indicative in nature and the State/Union Territory Governments may use these as basic framework to develop specific guidelines applicable in the context of their National Parks, Wildlife Sanctuaries, important corridors etc.
The guidelines also listed commercial mining, setting of saw mills, setting of industries causing pollution, Commercial use of firewood, Establishment of major hydroelectric projects, Use of Production of any hazardous substances, Discharge of Effluents and solid waste as prohibited activities.
Court’s observations
The MoEF in an office memo dated May 17, 2022 required that any activity listed in Schedule of the EIA Notification 2006, when conducted in a notified ESZs when conducted within 10 kilometres of such National Park or Sanctuary, requires the consideration and recommendation of the NBWL.
The court held that there are inbuilt safeguards for preventing rampant construction and abuse of process which may be detrimental to the development and maintenance of wildlife habitats and if paragraph 56.5 is left un modified, the PCCF will receive hundreds of permit pleas and it would be left with no other job but to deal with and also even a farmers desiring to conduct farming activities would have to seek permission. “We find that such a direction is impossible to be implemented,” the court said (Para 50). “If the direction as issued is continued, it would certainly hamper the day to day activities of the citizens residing in ESZs. As such, we find that the said direction needs to be modified,” the court added (Para 52).
Moving on to paragraph 56.1 of the impugned order, the court noted that the “area to be declared as ESZ cannot be uniform and will be Protected Area specific. In some cases, it may be 10 kilometres on one side and 500 meters on the other side. In certain cases, it may not be possible to have a uniform minimum area by virtue of inter-state boundaries or a sea or a river beyond one side of the Protected Area.” (Para 55). The court however, emphasised that a detailed procedure as given under Rule 5 of the 1986 Rules has to be followed and once ESZ is notified after such procedure, the same has to be followed.
“There are various factors which will determine the ESZs for a particular Protected Area. The circumstances may differ from one Protected Area to another Protected Area. As such, we find that the direction which prescribes a uniform one kilometre ESZ requires to be modified.” (Para 56)
The court also noted that final notifications have been issued in respect of 474 Protected Areas whereas draft notifications have been issued in respect of 102 Protected Areas and 73 proposals are pending. In the impugned order the court had said that minimum width of the ESZ may be diluted in overwhelming public interest but for that the state/UT government would have to approach the Central Empowered Committee (CEC) and MoEF who would then make recommendations to the court which would then pass orders.
With respect to paragraph 56.1 th3 court held,
“…the directions contained therein would not be applicable to the ESZs in respect of which a draft and final notification has been issued by the MoEF & CC and in respect of the proposals which have been received by the Ministry.” (Para 61)
“We, however, direct the Central Government that wide publicity should be given to the draft notification which is required to be published under the provisions of clause (a) of sub-rule (3) of Rule 5 of the 1986 Rules. We further direct that the final notification to be published under clause (d) of sub-rule (3) of Rule 5 of the 1986 Rules shall not be given effect for a period of 30 days from the date of issuance thereof.” (Para 62)
The court also gave liberty to anyone aggrieved such notification to approach the court directly by filing an application.
“We further clarify that the direction contained in paragraph 56.1 of the order dated 3rd June 2022 (supra) would not be applicable where the National Parks and Sanctuaries are located on inter-State borders and/or share common boundaries.” (Para 64)
Paragraph 56.5 of the impugned order was replaced by the following:
(i) The MoEF & CC and all the State/Union Territory Governments shall strictly follow the provisions in the said Guidelines dated 9th February 2011 and so also the provisions contained in the ESZs notifications pertaining to the respective Protected Areas with regard to prohibited activities, regulated activities and permissible activities;
(ii) We further direct that while granting Environmental and Forest Clearances for project activities in ESZ and other areas outside the Protected Areas, the Union of India as well as various State/Union Territory Governments shall strictly follow the provisions contained in the Office Memorandum dated 17th May 2022 issued by MoEF & CC. (Para 66)
Conclusion
Examining the history of how ESZ came into being, it is clear that the earliest opinion expressed in the present connection, as far back as 2002 was to keep a 10 km radius area as buffer zone. However, state governments delayed proposals to the union ministry and even the Ministry itself tweaked the court’s directions for the 10km buffer (which the court has surprisingly not addressed). Further, suddenly, with respect to Goa, the directions were changed to one km of a buffer zone and now that has been further diluted and the discretion has been left up to a “committee” which will decide how much buffer zone is to be kept for which national park and Sanctuary. The concerns raised by the government seemingly about residents living in the buffer zone areas who might want to reconstruct their houses. However, while addressing this concern, the union government has managed to convince the court to do away with permissions required for other non-permitted activities as well. However, in any case, mining activities remain prohibited in the 1 km buffer area, irrespective.
The complete judgement may be read here:
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