16 March 2023 1:51 PM GMT
The Supreme Court on Thursday indicated that it might relax the restrictions in the one-kilometer Eco-Sensitive Zone(ESZ) which has been mandated near protected forests and wildlife sanctuaries.A bench comprising Justices BR Gavai, Vikram Nath and Sanjay Karol was hearing applications filed by the Union Ministry of Environment, Forest, and Climate Change and various State Governments...
The Supreme Court on Thursday indicated that it might relax the restrictions in the one-kilometer Eco-Sensitive Zone(ESZ) which has been mandated near protected forests and wildlife sanctuaries.
A bench comprising Justices BR Gavai, Vikram Nath and Sanjay Karol was hearing applications filed by the Union Ministry of Environment, Forest, and Climate Change and various State Governments seeking relaxations in the 1- KM buffer zone which was mandated by the judgment passed by the Supreme Court on June 3, 2022. As per that judgment, constructions of permanent structures and mining activities are strictly prohibited in the ESZ area.
"Prima facie, we are inclined to allow this modification application", Justice BR Gavai orally observed while concluding the hearing today. However, Justice Gavai added that even if the order is modified, the restrictions on mining in the ESZ area will not be removed.
During yesterday's hearing too, Justice Gavai had said : “Whatever is prohibited, will remain prohibited, and whatever is regulated, will have to be regulated. But there cannot be a complete ban on construction. Otherwise, it will again lead to the man-animal conflict.”
Centre seeks relaxations
Additional Solicitor-General Aishwarya Bhati, appearing for the Union Ministry, told the bench that a "one-size-fits-all" rule of buffer zone uniformly across the country had given rise to practical difficulties. “Our request is site specificity. The prayer is that the order be modified for the three categories, namely, where ESZ notification has been issued, where a draft notification has been promulgated, and where proposals have been received", ASG said. Besides this, the centre has also urged the top court to amend, inter alia, two key conditions - first, a rule requiring ongoing non-prohibited activities to be continued only subject to the sanction of the Principal Chief Conservator of Forest, and second, a rule prohibiting the construction of any new permanent structures ‘for whatsoever purpose’ within the ESZ.
Conflict with Forest Dwellers' rights
The amicus curiae, K Parameshwar also echoed the sentiments of the top law officer, saying, among other things, that the stringency of the rule had led to severe difficulties and an enormous volume of litigation. One issue highlighted by him was the conflict with the scheme under the Forests Rights Act 2006, which confers certain rights to traditional forest dwellers. Sulthan Bathery Municipality in Kerala, a predominantly tribal area was entirely within the buffer zone around a protected forest, the amicus cited. This meant that all new construction activities were prohibited, and for continuing an already ongoing project, residents would have to first seek permission from the competent authority. At the same time, Parameshwar said, “However, there should not be a carte blanche exemption for all notifications. I do not know whether it would be possible to have little or no buffer zone at all.”
Kerala seeks relaxation
Senior Advocate Jaideep Gupta then made submissions on behalf of the State of Kerala, which has filed an application seeking modification of the directions in view of the special circumstances in the State. He pointed out that almost 30% of the State's geographical area has forest cover. Also, the State has high population density. Another peculiarity of the State is that it is dotted with small and medium towns which overlap with forest areas. Human habitation is very common within the immediate vicinity of boundaries of forest areas. These areas have been well developed over the years with several residential and commercial establishments. So a blanket ban on construction activities near the buffer zone will adversely affect the lives and livelihood of the people. He admitted that these facts should have been brought to the attention of the Court before it passed the judgment on June 3, 2022.
"But too many people's lives are involved. There is no scope for resettlement of these people. In some States it may be possible, but this is not a state where resettlement is possible. Because every inch has been taken by human inhabitation", he said. In an earlier hearing, he had illustrated the difficulty by using the example of the Kerala High Court, which is within 200 metres of the Mangalavanam bird sanctuary in the middle of Ernakulam city.
The bench also heard the arguments of Sulthan Bathery Municipality and certain private individuals who sought for relaxation of the restrictions. The States of Uttar Pradesh and Tamil Nadu also sought for modifications of the rule.
The Court had earlier passed orders clarifying that the ESZ rule will not apply to Sanjay Gandhi National Park and Flamingo Thane Creek near Mumbai city. The Court had also exempted Tungareshwar wildlife sanctuary near Mumbai from the ESZ rule. In the June 2022 order as well, the Court had acknowledged that a uniform ESZ rule may not be feasible in all cases and there could be specific instances of sanctuaries situated near metro regions where urban activities have come up over the years. The bench had cited examples like Sanjay Gandhi National Park and Guindy National Park in Mumbai and Chennai respectively.
In Re: T.N. Godavarman Thirumulpad v. Union of India & Ors. | Writ Petition (Civil) No. 202 of 1995