Full Judgment Text
WP NO. 13330/2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 12 DAY OF JULY, 2021
PRESENT
THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.13330 OF 2020 (GM-MMS)
BETWEEN:
1. SRI SARDAR AHMED H.A.
S/O LATE ABDUL BASHEER
AGED ABOUT 50 YEARS
R/AT HOOKUNDA VILLAGE
UYYAMBALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT – 562 119
…PETITIONER
(BY SRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI. VINAYAKA.B, ADVOCATE OF HARANAHALLI LAW
PARTNERS LLP(VC))
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF COMMERCE & INDUSTRIES
VIKASA SOUDHA
DR. B.R. AMBEDKAR VEEDHI
BENGALURU – 560 001
REPRESENTED BY ITS
PRINCIPAL SECRETARY
2. STATE LEVEL ENVIRONMENT IMPACT
ASSESSMENT AUTHORITY – KARNATAKA
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TH
ROOM No.706, 7 FLOOR
IV GATE, M.S. BUILDING
BENGALURU – 560 001
REPRESENTED BY ITS
MEMBER SECRETARY
3. UNION OF INDIA
MINISTRY OF ENVIRONMENT
FOREST & CLIMATE CHANGE
PARYAVARANBHAVAN
CGO COMPLEX
LODHI ROAD
NEW DELHI – 100 003
REPRESENTED BY
SECRETARY/DIRECTOR
AMENDED AS PER ORDER DATED 09.02.2021
…RESPONDENTS
(BY SRI. S.S. MAHENDRA, AGA FOR R1(PH)
SRI. D. NAGARAJ, ADVOCATE FOR R2(VC)
SRI. SHIVA KUMAR, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED COMMUNICATION ISSUED BY THE R-2
DTD: 20.03.2020 PRODUCED AS ANNEXURE-A AND GRANT AN
INTERIM ORDER TO STAY THE OPERATION OF THE IMPUGNED
COMMUNICATION ISSUED BY THE R-2 DTD: 20.03.2020
PRODUCED AS ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR FURTHER
DICTATION OF JUDGEMENT, THIS DAY , CHIEF JUSTICE MADE
THE FOLLOWING:
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ORDER
Heard the submissions of the learned Senior Counsel
appearing for the petitioner, the learned Additional Government
Advocate appearing for the first respondent, the learned
counsel appearing for the second respondent and the learned
counsel appearing for the third respondent.
FACTUAL ASPECTS:
2. For the purpose of deciding the controversy
involved in the petition, a brief reference to the factual aspects
will be necessary.
3. The petitioner is claiming to be the owner of a patta
land more particularly described in the petition. He applied
under sub-rule (1) of Rule 32 of Karnataka Minor Mineral
Concession Rules, 1994 (for short "the said Rules of 1994") for
th
grant of a permission for quarrying granite stone. On 14
January 2016, a work order was issued to the petitioner for re-
commencing the stone quarrying operation on the patta land in
accordance with sub-rule (1) of Rule 32 of the said Rules of
1994. The work order was in respect of a land in
Herandyapanahalli Village, Kanakapura Taluk, District
Ramanagara. As noted in the said work order, permissions and
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clearances were granted to the petitioner including
th
Environment Clearance Certificate. On 27 May 2016, the
Commissioner and Director of the Department of Mines and
Geology addressed a letter to the Deputy Director of the
Department of Mines and Geology with a direction to take
action of cancellation of the permission granted to the
nd
petitioner. On 22 June 2016, an order was made by the
Deputy Director, the Department of Mines and Geology
recording that the land subject matter of the petition was
situated within a distance of one kilometer from the boundary
of Bannerghatta National Park (for short "the said National
Park"). It appears that the petitioner filed Writ Petition No.
37789/2016 for challenging the said order. Initially, by the
nd
order dated 22 March 2017, subject to the outcome of the
said writ petition, this Court permitted the petitioner to
th
continue the mining operations for a period of six weeks. On 7
June 2017, the said interim order was extended till further
orders.
4. In the meanwhile, a draft notification was published
th
on 15 June 2016 for the purpose of declaring the Eco
Sensitive Zone of the said National Park. Another draft
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th
notification was published for the same purpose on 30 October
2018.
5. A show cause notice was issued by the Deputy
Director calling upon the petitioner to show cause as to why the
th
work order issued on 14 January, 2016 for carrying out the
quarrying operations should not be cancelled. Written
submissions were filed by the petitioner before the Deputy
nd
Director. An order was made on 2 January 2019 by the
th
Deputy Director canceling the work order dated 14 January
2016 issued to the petitioner on the ground that the site was
within one kilometer from the boundary of the said National
Park. The present petitioner had filed Writ Petition
No.37789/2016 in which there was a challenge to the aforesaid
nd nd
endorsements/orders dated 22 June 2016 and 2 January
2019. The said writ petition, along with two other similar
petitions, were heard and disposed of by a Division Bench of
st
this Court by the judgment and order dated 31 May 2019.
The Division Bench has noted the submissions made by the
th
learned Senior Counsel that as per the notification dated 27
February, 2007 issued by the Ministry of Environment and
Forests and keeping in mind the directions issued by the Apex
Court, environmental clearance is required for non-forest
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activities within a radius of 10 kilometers from a Wild Life
Sanctuary or a National Park. The contention raised by the
present petitioner which is noted in paragraph 15 of the said
judgment is that the final notification relating to Eco Sensitive
Zone of the said National Park is ready and it is not yet issued.
In paragraphs 18 to 20 of the said judgment (Pages 239 and
240), the Division Bench has observed that the petitioners shall
rd
be governed by the notification issued pursuant to 33 ESZ
Expert Committee Meeting declaring Eco Sensitive Zone.
6. In the meanwhile, the second respondent, by a
th
communication dated 15 March 2019, proceeded to withdraw
and revoke the environmental clearance granted to the
th
petitioner vide letter dated 12 January 2016. One of the
allegations made therein was that a false and misleading
information was provided by the petitioner and after
verification, it was noticed that the site in question was at a
distance of less than one kilometer from the boundary of the
th
said National Park. It is this communication dated 15 March
2019 which was subjected to a challenge by the petitioner by
filing Writ Petition No.31898/2019. The petition was disposed
nd
of by the judgment and order dated 22 January 2020. The
th
said communication dated 15 March 2019 was set aside by
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this Court only on the ground of breach of the principles of
natural justice and that the said communication was ordered to
be treated as a show cause notice. Accordingly, a reply was
st
submitted by the petitioner on 31 January 2020. We may
note here that the final notification declaring the Eco Sensitive
th
Zone of the said National Park was issued on 11 March 2020.
As per the said notification, Eco Sensitive Zone was fixed to an
extent of 100 meters to 1.0 kilometer around the boundary of
the said National Park. As far as the village Herandyapannalli is
concerned, Eco sensitive Zone was declared as 100 meters
th
from the boundary of the said National Park. On 15 March
2019, the second respondent passed an order of revocation of
th
the environmental clearance granted to the petitioner on 12
January 2016 on the ground that in the online application dated
th
13 November 2015 made by the petitioner for grant of
environmental clearance, there was concealment of facts and
information with regard to distance of the site from the
boundary of the said National Park and the presence of the said
site within one kilometer from the boundary of the said National
Park. The second ground stated in the said letter is that in
th
view of the order dated 4 August 2006 passed by the Apex
Court in T.N. Godavarman Thirumulpad Vs. Union of India
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1
and others in Writ Petition No.202/1995 and the Judgment
st
dated 21 April 2014 in the case of Goa Foundation vs.
2
Union of India and others , as the site was within one
kilometer of the boundary of the said National Park, the
petitioner was not entitled to carry on the quarrying activity.
It is noted in the same communication that the quarrying place
is located between 516 meters and 682 meters from the
boundary of National Pak. It is also noted that this position
was not disputed.
nd
7. During the pendency of the petition, the 2
respondent, along with the statement of objections, produced
th
the Office Memorandum dated 8 August 2019 issued by the
Ministry of Environment, Forests and Climate Change,
Government of India. The subject of the said Office
Memorandum is the procedure for consideration of
development projects located within 10 kilometers of a National
Park/Wild Life Sanctuary seeking environmental clearance
under the provisions of the Environmental Impact Assessment
(EIA)) Notification, 2006. Clause (4) thereof was relied upon
by the second respondent which provided that mining of
1
(2010) 13 SCC 740
2
(2014) 6 SCC 590
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minerals within the Eco Sensitive Zone or one kilometer from
the boundaries of National Parks and Sanctuaries, whichever is
higher, is prohibited in accordance with the aforesaid orders of
th st
the Apex Court dated 4 August 2006 and 21 April 2014. For
challenging the said office memorandum, the Court permitted
the petitioner to amend the petition. In the amended petition,
th
there are two challenges. First is to the letter/order dated 20
March 2020 (Annexure-A) of the cancellation of Environmental
Clearance issued by the second respondent and the second is
th
to the office memorandum dated 8 August 2019 (Annexure –
R1).
SUBMISSIONS OF THE PARTIES:
8. The learned Senior Counsel appearing on behalf of
the petitioner has taken us through the aforesaid orders of the
th
Apex Court dated 4 August 2006 in the case T.N.
Godavarman Thirumulpad Vs, UOI (supra) and the
st
Judgment dated 21 April 2014 in the case of Goa Foundation
Vs. UOI (supra). He submitted that after considering the
th
orders dated 4 August 2006, the Apex Court came to the
conclusion that the prohibition has been imposed on the mining
activities within an area of one kilometer of the boundaries of
National Parks and Wild Life Sanctuaries only in the State of
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Goa. He has also invited our attention to paragraphs 52 and
53 of the said decision in the case of Goa Foundation Vs.UOI
(supra) and submitted that now, in terms of the decision of
th
the Apex Court, the Central Government has on 11 March
2020 exercised the power under sub-section (1) and clauses
(v) and (xiv) of sub-section (2) and sub-section (3) of Section 3
of the Environment (Protection) of Act, 1986 (for short "the
said Act of 1986") and sub-rule (3) of Rule 5 of the
Environmental (Protection) Rules, 1986 (for short “the said
Rules of 1986”) by which, the Eco Sensitive Zone of the said
National Park has been declared and therefore, prohibition of
mining activities will apply only in the areas falling within the
notified Eco-Sensitive Zone of the said National Park. He
submitted that admittedly, the site subject matter of this
petition falls within the boundary of Herandyapanahalli Village,
Kanakapura Taluk, Ramanagara District, which is located
outside the Eco Sensitive Zone. He pointed out that in the said
village, Eco Sensitive Zone extends only to an area falling
within 100 meters from the boundary of the said National Park.
He stated that admittedly, the land subject matter of this
petition falls outside the distance of 100 meters from the
boundary of the said National Park. He would, therefore,
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submit that now there is no prohibition on carrying on the
quarrying activity on the land subject matter of this petition.
He also pointed out the documents on record and contended
th
that the finding recorded in the communication dated 27
March 2013 (Annexure-E) regarding concealment of facts and
furnishing misleading information is without any basis and in
fact, there was no such misrepresentation or concealment at
all.
9. The learned counsel appearing for the third
respondent firstly relied upon the impugned Office
th
Memorandum dated 8 August 2019 and submitted that the
said Office Memorandum is issued in terms of the aforesaid
th st
orders of the Apex Court dated 4 August 2006 and 21 April
2014. He also invited our attention to EIA notification which
describes the boundaries of Eco-Sensitive Zone around the said
National Park and in particular, the boundary on the west side
of the said National Park. He would, therefore, submit that
notwithstanding the said notification declaring the Eco Sensitive
Zone of the said National Park, there cannot be any mining
activity within a distance of one kilometer from the boundary of
the said National Park.
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10. The learned counsel appearing for the second
respondent relied upon the same aforesaid orders of the Apex
Court and submitted that there has to be one kilometer safety
zone from the boundary of the National Parks. He also
submitted that if the entire judgment of the Apex Court in the
case of Goa Foundation vs. Union of India (supra) is seen,
the direction which is mentioned as regards the National Parks
in Goa will also apply to the National Parks in other States, as
well. He would, therefore, submit that the order of revocation
of the environmental clearance cannot be faulted with. The
learned counsel stated that the said order is an appealable
order.
CONSIDERATION OF SUBMISSIONS:
11. Firstly, we will deal with the legal position which
emerges from various orders passed by the Apex Court in the
case of T.N.Godavarman Thirumulpad vs. Union of India
and others (supra) and Goa Foundation vs. Union of India
and others (supra). The final judgment in Goa Foundation
dated 21st April 2014 (supra) refers to all earlier orders as well
as orders passed in the case of T.N.Godavarman (supra). A
perusal of the final judgment shows that the issue involved in
the case before the Apex Court was in relation to the mining in
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the State of Goa. The decision refers to the report of a
Commission headed by Justice Shah. In paragraph 49, it refers
th
to the order dated 4 August, 2006 in the case of
th
T.N.Godavarman as well as order dated 4 December, 2006
in the case of Goa Foundation on which reliance is placed by
the respondents. It is necessary to quote paragraph 49 of the
said decision which reads thus:
"49. We may now examine whether this Court
has by the orders passed on 4.8.2006 and
4.12.2006, prohibited mining activities around
national Parks or Wildlife sanctuaries. When we
read the order of this Court passed on 4.8.2006 in
T.N. Godavarman Thirumulpad v. Union of India,
we find that the Court while considering the
question of grant of temporary working permits for
mining activities in national parks, sanctuaries and
forest areas, directed that temporary working
permits shall be granted only where the conditions
stipulated in the said order are satisfied.
Conditions (ii) and (iii) stipulated in the order
dated 4.8.2006 are extracted herein below:
"19. … (ii) The mine is not located inside any
national park/sanctuary notified under Sections
18, 26-A or 35 of the Wild Life (Protection) Act,
1972;
(iii) The grant of the TWP would not result in
any mining activity within the safety zone around
such areas referred to in (ii) above, (as an interim
measure, one kilometre safety zone shall be
maintained subject to the orders that may be
made in IA No.1000 regarding Jamua Ramgarh
Sanctuary);"
It would, thus, be clear that this Court was of the
opinion that grant of temporary working permits
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should not result in any mining activities within the
safety zones around a national park or wildlife
sanctuary and as an interim measure, one
kilometre safety zone was to be maintained
subject to the orders that may be made in IA
No.1000 in Jamua Ramgarh Sanctuary. This order
dated 4.8.2006 has not been varied subsequently
nor any orders made in IA No. 1000 regarding
Jamua Ramgarh Sanctuary saying that temporary
working permits can be granted within one
kilometre safety zone beyond the boundaries of a
national park or wildlife sanctuary. The result is
that the order passed by this Court saying that
there will be no mining activity within one
kilometre safety zone around national park or
wildlife sanctuary has to be enforced and there can
be no mining activities within this area of one
kilometre from the boundaries of national parks
and wildlife sanctuaries in the State of Goa".
(underline supplied)
Hence, after considering both the aforesaid orders, the Court in
its final judgment in the case of Goa Foundation held that
there can be no mining activities within the area of one
kilometre from the boundaries of the national parks and wildlife
sanctuaries in the State of Goa. Paragraph 49 quoted above
cannot be read in isolation. The Apex Court also considered the
provisions of the said Rules of 1986. Paragraph 52 of the said
decision is material which reads thus:
"52. Sub-rule (1) of Rule 5 lists the number of
factors, which the Central Government has to take
into consideration while prohibiting or restricting the
carrying on of processes and operations in different
areas. Sub-rule (2) of Rule 5 provides that before
prohibiting the processes and operations in the area
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the Central Government has to follow the procedure
laid down in sub- rule (3). The procedure in sub-rule
(3) of Rule 5 of the Environment (Protection) Rules,
1986 includes giving notice of the intention of the
Central Government to prohibit the carrying on of
processes and operations in the reserved area, giving
brief description of the area, the operations and
processes in that area relating to which the
notification pertains and also specifying the reasons
for the imposition of the prohibition on carrying on of
the processes or operations in that area, and an
opportunity to persons interested in filing an
objection against the imposition of such prohibition
on carrying on of processes or operations by the
Central Government. These procedural checks have
been made in Rule 5 because a notification issued by
the Central Government prohibiting an operation or a
process will have serious consequences on the rights
of different persons. For example, persons who are
carrying on the process or operation and those who
are directly or indirectly employed in the process or
the operation may be affected by the proposed
prohibition of the process or the operation in the
entire area. Therefore until the Central Government
takes into account various factors mentioned in sub-
rule (1), follows the procedure laid down in sub-rule
(3) and issues a notification under Rule 5 prohibiting
mining operations in a certain area, there can be no
prohibition under law to carry on mining activity
beyond 1 km of the boundaries of national parks or
wildlife sanctuaries".
(underline supplied)
Even the above observation is in the context of the State of
Goa. Moreover, the restriction was imposed only till a
notification under Rule 5 of the said Rules of 1986 was issued
by the Central Government. That is very clear on a conjoint
reading of paragraphs 49 and 52. The view which we are
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taking is reinforced by what is observed in paragraph 53,
which reads thus:
"53. In fact, we find that the process of issuing a
notification under Rule 5 of the Environment
(Protection) Rules, 1986 prohibiting mining activities
in eco-sensitive zones around the national parks or
wildlife sanctuaries in the State of Goa has now been
initiated. The Government of Goa vide Letter dated 2-
5-2013 submitted the following six proposals for
declaration of eco-sensitive zones around protected
areas in the State of Goa to the Ministry: (i) Cotigao
Wildlife Sanctuary; (ii) Netravali Wildlife Sanctuary;
(iii)Bhagwan Mahaveer Wildlife Sanctuary and
Bhagwan Mahaveer National Park; (iv) Madei Wildlife
Sanctuary; (v) Bondla Wildlife Sanctuary; and (vi) Dr
Salim Ali Bird Sanctuary. These six proposals were
referred to a committee constituted under the
chairmanship of Dr Rajesh Gopal, Additional Director
General of Forests and Member-Secretary of National
Tiger Conservation Authority, with specified terms of
reference and the Committee gave its findings and
the Ministry of Environment and Forests, Government
of India by the Office Memorandum dated 24-10-2013
have accepted the findings of the Committee and
rejected the proposals of the Government of Goa. It is
also stated in the Office Memorandum dated 24-10-
2013 of the Ministry of Environment and Forests,
Government of India that a draft notification defining
eco-sensitive zones around each protected area is
being issued for stakeholder consultations. This
notification will have to be issued under sub-rule (3)
of Rule 5 of the Environment (Protection) Rules,
1986, and after objections are received, the Central
Government will have to consider the same and
thereafter take the decision regarding imposition of
prohibition of mining activities in the eco-sensitive
areas within the period stipulated in sub-rule 3(b) of
Rule 5 of the Environment (Protection) Rules, 1986.
At this stage, we can only direct the Ministry of
Environment and Forests to follow the procedure and
issue the notification of eco-sensitive zones under
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Rule 5 of the Environment (Protection) Rules, 1986
within six months".
(underlines supplied)
12. Paragraphs 87 and 88 of the operative portion are
also material. In paragraph 87.3, it is directed till the order
th
dated 4 December 2006 is not modified, there can be no
mining activities within one kilometre from the boundaries of
the national parks and sanctuaries in the State of Goa.
13. Now, we come to the provision of Rule 5 of the said
Rules of 1986. For the sake of convenience, we are quoting
Rule 5 which reads thus:
" 5. Prohibition and restriction on the location of
industries and the carrying on processes and
operations in different areas - (1) The Central
government may take into consideration the
following factors while prohibiting or restricting the
location of industries and carrying on of processes
and operations in different areas:-
(i) Standards for quality of environment in its
various aspects laid down for an area.
(ii) The maximum allowable limits of
concentration of various environmental pollutants
(including noise) for an area.
(iii) The likely emission or discharge of
environmental pollutants from an industry, process
or operation proposed to be prohibited or restricted.
(iv) The topographic and climatic features of an
area.
(v) The biological diversity of the area which, in
the opinion of the Central Government needs to be
preserved.
(vi) Environmentally compatible land use.
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(vii) Net adverse environmental impact likely to
be caused by an industry, process or operation
proposed to be prohibited or restricted.
(viii) Proximity to a protected area under the
Ancient Monuments and Archaeological Sites and
Remains Act, 1958 or a sanctuary, National Park,
game reserve or closed area notified as such under
the Wild Life (Protection) Act, 1972 or places
protected under any treaty, agreement or convention
with any other country or countries or in pursuance
of any decision made in any international conference,
association or other body.
(ix) Proximity to human settlements.
(x) Any other factors as may be considered by
the Central Government to be relevant to the
protection of the environment in an area.
(2) While prohibiting or restricting the location
of industries and carrying on of processes and
operations in an area, the Central Government shall
follow the procedure hereinafter laid down.
(3) (a) Whenever it appears to the Central
Government that it is expedient to impose prohibition
or restrictions on the location of an industry or the
carrying on of processes and operations in an area, it
may, by notification in the Official Gazette and in
such other manner as the Central Government may
deem necessary from time to time, give notice of its
intention to do so.
(b) Every notification under clause (a) shall give
a brief description of the area, the industries,
operations, processes in that area about which such
notification pertains and also specify the reasons for
the imposition of prohibition or restrictions on the
locations of the industries and carrying on of
processes or operations in that area.
(c) Any person interested in filing an objection
against the imposition of prohibition or restrictions
on carrying on of processes or operations as notified
under clause (a) may do so in writing to the Central
Government within sixty days from the date of
publication of the notification in the Official Gazette.
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(d) The Central Government shall, within a
period of one hundred and twenty days from the
date of publication of the notification in the Official
Gazette, consider all the objections received against
such notification and may [within [seven hundred
and twenty five days] [, and in respect of the States
of Assam, Meghalaya, Arunachal Pradesh, Mizoram,
Manipur, Nagaland, Tripura, Sikkim and Jammu and
Kashmir in exceptional circumstance and for
sufficient reasons within a further period of tone
hundred and eighty days,] from such day of
publication,] impose prohibition or restrictions on
location of such industries and the carrying on of any
process or operation in an area:
[Provided that for the purpose of this clause,
the validity of notification or rule or order expiring in
the Financial Year 2020-2021 shall stand extended
th
upto 30 June, 2021 on account of COVID-19
pandemic.]
[(4) Notwithstanding anything contained in sub-
rule (3), whenever it appears to the Central
Government that it is in public interest to do so, it
may dispense with the requirement of notice under
clause (a) of sub-rule (3).]"
(underlines supplied)
Hence under sub-rule (1) of Rule 5 there are exhaustive
provisions empowering the Central Government to prohibit or
restrict the location of industries and carrying on of processes
and operations in different areas after taking into consideration
the factors in sub-rule (1) of Rule 5. For imposing such
prohibition or restrictions, the procedure provided in sub-rule
(3) of Rule 5 has to be followed. This is how the Central
Government got the power to lay down Eco-sensitive Zones of
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a National Park and prohibit activities in Eco-sensitive zones. We
may note here that the orders which are relied on by the
respondents in the case of T.N.Godavarman (supra) and Goa
Foundation (supra) were issued by the Apex Court when the
exercise of powers under Rule 5 of the said Rules of imposing
restriction was not made.
14. Now as far as the said national park, which is the
subject matter of this petition is concerned, a notification has
th
been issued on 11 March 2020 by the Central Government in
accordance with clause (b) of sub-rule (3) of Rule 5 imposing
prohibition or restrictions on location of industries and carrying
of the processes and operations in its Eco-sensitive Zone. We
may note here that a PIL incorporating a challenge to the
th
notification dated 11 March, 2020 is pending before this
Court. However, there is no restraint order in the said PIL
prohibiting the implementation of the said notification. Clause
th
(1) of the notification dated 11 March, 2020 reads thus:
" 1. Extent and boundaries of Eco-sensitive
Zone. - (1) The Eco-sensitive Zone shall be to an
extent of 100 meters to 1.0 kilometer around the
boundary of the Bannerghatta National Park and the
area of the Eco-sensitive Zone is 168.84 square
kilometres.
(2) The boundary description of Bannerghatta
National Park and its Eco-sensitive Zone is appended
as Annexure-I.
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(3) The maps of the Bannerghatta National Park
demarcating Eco-sensitive Zone along with boundary
details and latitudes and longitudes are appended as
Annexure-IIA, Annexure-IIB, Annexure-IIC,
Annexure-IID and Annexure-IIE.
(4) List of geo-coordinates of the boundary of
Bannerghatta National Park and Eco-sensitive Zone
are given in Table A and Table B of Annexure-III .
(5) The list of villages falling in the Eco-sensitive
Zone along with their geo co-ordinates at prominent
points is appended as Annexure-IV".
(underlines supplied)
We may note here that Annexure-IV contains list of villages
falling in the Eco-sensitive Zones along with their geo co-
ordinates at prominent points. Table-A of Annexure-IV gives
the list of villages located within the outer boundary of
Bannerghatta National Park. Under Table-B of Annexure-IV,
there is a list of villages coming under the Eco-sensitive Zone of
the said National Park along with geo co-ordinates. Under
Table-B, there are eight columns. The first column is of map
nd rd
id; the 2 column is of village name; the 3 is of Eco-sensitive
th
Zone width from Bannerghatta National Park boundary; the 4
th th
and 5 are of names of Taluks and Districts; the 6 is of extent
in terms of hectares and last two columns are of latitude and
longitude. Item no.61 is in respect of the village
Herandyappanahalli with which we are concerned. In case of
this village, in column 3, the width of Eco-sensitive Zone from
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the said boundary of the said National Park is stated to be 100
metres. There are many villages under column 3 wherein the
width of Eco-sensitive Zone is of one kilometre.
15. As stated in sub-clause (ii) of Clause (1) of the said
notification, the boundary description of Bannerghatta National
Park and its Eco-sensitive Zone is appended as Annexure-I.
The learned counsel appearing for this respondent has drawn
our attention to the boundary description of the Eco-sensitive
zone around the said National Park against the direction
'West'.
" From the above pointline runs northwards
maintaining a parallel distance of 100 meters from
the extreme points along the Bannerghatta National
Park boundary through Guddeveranahosahalli and
Salbanni villages. Further, the line runs maintaining a
parallel distance of 1.0 Kilometer from the extreme
points along the Bannerghatta National Park boundary
through Anekadaburu village and then the line runs
maintaining a parallel distance of 100 meters from
the extreme points along the Bannerghatta National
Park boundary through Hosadurga, Bommasandra,
Bijahalli, Tippuru and Herandyappanahalli villages.
Then the line proceeds maintaining a parallel distance
of 1.0 Kilometer from the extreme points along the
Bannerghatta National Park boundary through
Kengalanatta Gollahalli, Kebbre, Hanchaguli, and
Kalasuru villages. Further, the line runs maintaining a
parallel distance of 100 meters from the extreme
points along the Bannerghatta National Park boundary
though Doddaguli village. From this point the line
runs maintaining a parallel distance of 1.0 Kilometre
from the extreme points along the Bannerghatta
National Park boundary through Arkere and
Dodkaballi villages. Then the line runs maintaining a
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parallel distance of 100 meters from the extreme
points along the Bannerghatta National Park boundary
through Garalapura village. Then the line runs
maintaining a parallel distance of 1.0 Kilometer from
the extreme points along the Bannerghatta National
Park boundary through Kebbehalli, Narayanapura,
Bekuppe, Kerelalusandra, Chakanhalli, Mavathur,
Bacholhallidoddi, Maniyambal, Devarahalli,
Linganapura, Bhimasandra, Doddamaralavadi,
Elachavadi, Katharinatha, Kallanakuppe, Kolalagundi,
Tattekere, Bilaganaguppe, Goduru, Attiguppe,
GullahattiKaval, Jakkasandra, Gottigehalli,
Vaddarapalya, Tatguppe, Taralu, Gulakamale villages.
Then the line runs maintaining a parallel distance of
100 meters from the extreme points along the
Bannerghatta National Park boundary through
Buthanahalli and Bilwaradahalli villages and reaches
the starting point".
(underline supplied)
If the said description is read with the width of the Eco-
sensitive Zone mentioned at item no.61 in Table-B of
Annexure-IV, it is apparent that as far as the said village is
concerned, the parallel distance mentioned is 100 metres from
the Bannerghatta National Park boundary. In case of some
other villages, it is one kilometre. The width of Eco-sensitive
Zone of Bannerghatta National Park differs from village to
village as is clear from Table-B of Annexure-IV.
16. Emphasis was laid by the third respondent on clause
(4) of the said notification and in particular the entries against
sl.no.1 in the table. We reproduce the said part for ready
reference:
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"4. List of activities prohibited or to be
regulated within Eco-sensitive Zone. - All
activities in the Eco-sensitive Zone shall be governed
by the provisions of the Environment Act and the
rules made there under including the Coastal
Regulation Zone, 2011 and the Environmental Impact
Assessment Notification, 2006 and other applicable
laws including the Forest (Conservation) Act, 1980
(69 of 1980), the Indian Forest Act, 1927 (16 of
1927), the Wildlife (Protection) Act 1972 (53 of
1972), and amendments made thereto and be
regulated in the manner specified in the Table below,
namely:-
Sl. No. Activity Description
(1) (2) (3)
A. Prohibited Activities
1. Commercial mining,
stone quarrying and
crushing units.
(a) All new and existing mining
(minor and major minerals),
stone quarrying and crushing
units shall be prohibited with
immediate effect except for
meeting the domestic needs of
bona fide local residents including
digging of earth for construction
or repair of houses and for
manufacture of country tiles or
bricks for housing and for
personal consumption;
(b) The mining operations shall be
carried out in accordance with the
order of the Hon'ble Supreme
th
Court dated the 4 August, 2006
in the matter of T.N. Godavarman
Thirumulpad Vs. UOI in W.P.(C)
No.202 of 1995 and dated the
st
21 April, 2014 in the matter of
Goa Foundation Vs. UOI in
W.P.(C) No.435 of 2012.
(underlines supplied)
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Therefore item no.1 under clause (4) lays down that
commercial mining, stone quarrying and crushing units is a
prohibited activity in the Eco-sensitive Zone. Clause (a)
incorporates an exception by providing that stone quarrying
and crushing units can be permitted for meeting the domestic
needs of bona fide local residents including digging of earth for
construction or repair of houses and for manufacture of country
tiles or bricks for housing and for personal consumption.
However, the said exception in clause(a) is again subject to
clause (b) which imposes a condition that the excepted activity
as provided in clause(a) will be subject to the orders of the
Apex Court mentioned therein of imposing prohibition on
mining activities within the distance of one kilometre from the
boundary of a National Park. In a given case, the width of Eco-
sensitive Zone may exceed even one kilometre. In such a
case, the activities such as stone quarrying for meeting the
domestic needs of bona fide local residents, etc. which are
permissible by way of exception carved out by clause (a) will
have to be restricted in terms of what is provided under
clause(b). In a given case, if the width of the Eco-sensitive
Zone exceeds one kilometre, the bona fide activities which are
permitted under clause (b) can be carried out not within one
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kilometre but beyond one kilometre from the boundary of the
concerned National Park. The ban on commercial mining and
crushing units is in areas falling in the the Eco-sensitive Zone.
For example, in the case of the said village, the width of Eco-
sensitive Zone is of 100 metres. Therefore, within the width
of 100 metres, the ban of mining, quarrying and crushing will
apply absolutely as the exception carved out by clause (a) will
not apply in view of clause (b). If the entire notification is
read, it does not purport to impose any restriction or
prohibition on an area which is not falling in the Eco-sensitive
Zone of the said National Park. Therefore, if an area falling in
the said village at Sl.No.61 in Annexure-IV is not within the
width of Eco-sensitive Zone of 100 metres from the boundary
th
of Bannerghatta National Park, the notification dated 11
March, 2020 does not prohibit or restrict the quarrying
operations in the area falling outside 100 metres of Eco-
sensitive Zone of the said village.
th
17. Now we come to the Office Memorandum dated 8
August, 2019. Clause (4) of the said Memorandum reads thus:
" 4. In light of the aforesaid Orders passed by
the Hon'ble Supreme Court, the issues related to the
prior clearance from SCNBWL for the notified ESZs
and the remaining areas have been examined in
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detail. In this regard, it has been decided by the
Competent Authority in the Ministry to adopt a
following procedure for consideration of
developmental projects located within 10 km of
National Park/Wildlife Sanctuary seeking
environmental clearance under the provisions of the
EIA Notification, 2006, in supersession of the earlier
O.M.s dated 27.2.2007 and 2.12.2009:
i. 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 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 of 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.
ii. Proposals involving developmental
activity/project located outside the stipulated
boundary limit of notified ESZ and located within
10km 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 concerned.
iii. 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.
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In such cases, the project proponent shall submit the
application simultaneously for grant of Terms of
Reference/environmental clearance as well as wildlife
clearance.
iv. Proposals involving mining of minerals
within the ESZ (or) one kilometer 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 4.08.2006 in the matter
of T.N. Godavarman Thirumulpad Vs. UOI in W.P.(C)
No.202 of 1995 and dated 21.4.2014 in the matter of
Goa Foundation Vs. UOI in W.P.(C) No.435 of 2012".
Reliance is placed on sub-clause (iv) of clause (4) which in turn
th
refers to the orders of the Apex Court dated 4 August, 2006 in
st
the case of T.N.Godavarman and the order dated 21 April,
2014 in the matter of Goa Foundation. However, the office
memorandum completely ignores the provision of Rule 5 of the
said Rules of 1986 enables the Central Government to lay down
the width of Eco-sensitive Zone around the national parks and
sanctuaries and prohibit activity of quarrying or mining as well
as other activities such as stone crushing within the Eco-
sensitive Zones. The decision of Goa Foundation (supra)
st
dated 21 April, 2014 itself records that the restriction or
prohibition of mining within one kilometre from the boundary of
national parks will apply to the State of Goa. In any case, in
case of Bannerghatta National Park, what will prevail is the
th
notification dated 11 March 2020 issued in exercise of power
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under Rule 5 of the said Rules of 1986 by the Government of
India. Therefore sub-clause (iv) of clause (4) of Office
th
Memorandum dated 8 August 2019 cannot be read to mean
that even if in a particular village, the notified Eco-sensitive
Zone is having width of less than one kilometre, the prohibition
on quarrying operations will continue even in that area forming
a part of one kilometre distance from the boundary of a
national park even though the area is outside the notified Eco-
sensitive Zone. To that extent, sub-clause (iv) of clause (4) of
th
the Office Memorandum dated 8 August, 2019 will have no
application to the facts of the case.
18. An argument was canvassed across the Bar
regarding availability of an efficacious remedy against the
th
Communication dated 20 March, 2020 (Annexure A). We
must note here that after the petition was amended, there is a
th
challenge incorporated to the Office Memorandum dated 8
August, 2019 and therefore, the challenge has not remained
th
confined to the Order/Communication dated 20 March, 2020.
Therefore statutory remedy provided for challenging the
th
communication dated 20 March, 2020, cannot be said to be an
efficacious remedy.
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WP NO. 13330/2020
th
19. The Order/Communication dated 20 March, 2020
th
completely ignores the legal effect of the Notification dated 11
March, 2020 declaring Eco-sensitive Zone of Bannerghatta
National Park. There is one more ground on which
Environmental Clearance was revoked. The said ground is of
suppression of material facts. We may note here that the
th
Environmental Clearance was granted on 12 January, 2016.
th
In the proceedings of 155 meeting of State Expert Appraisal
th
Committee (SEAC) held on 10 December, 2015, it is
specifically noted that the site of proposed quarrying by the
petitioner is within the distance of one kilometre from
Bannerghatta National Park. In fact, its specific distance of the
site from the boundary of the said National Park has been
noted in the proceedings. Therefore, we do not find that the
ground of concealment of facts and giving misleading
nd
information was available to the 2 respondent for revoking
the Environmental Clearance. Hence, the challenge to the
th
Order/Communication dated 20 March, 2020 will have to be
upheld.
20. The petitioner is claiming a right of quarrying under
Rule 32 of the Karnataka Minor Mineral Concession Rules,
1994. Under sub-rule (1) of Rule 32, it is provided no person
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in possession of patta lands in Karnataka State shall undertake
quarrying operations in his land for minor minerals except with
a quarrying license granted under Chapter V of the said Rules.
Therefore the petitioner will have to make an application under
sub-rule (1) of Rule 32 of the said Rules for grant of a
quarrying license. If the Environmental Clearance granted on
th
12 January, 2016 is still valid, obviously it will not be
necessary for the petitioner to obtain the clearance. If it has
already expired, the petitioner will have to apply for its
renewal. If an application is made under sub-rule (1) of Rule
32, the same will have to be decided by the concerned
authority in accordance with law.
21. We make it clear that we have examined a limited
question whether there is any prohibition on carrying on
quarrying operations on the land subject matter of this petition
in the context of the fact that the same is not covered by Eco-
sensitive Zone notified under the aforesaid Notification dated
th
11 March, 2020. We also make it clear that, we have made no
adjudication on the question whether the petitioner will be
entitled to a quarrying license under sub-rule (1) of Rule 32 of
the said Rules of 1994.
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22. Hence we dispose of the petition by passing the
following order:
th
(i) The impugned Order/Communication dated 20
March, 2020 (Annexure-A) is hereby set aside. We hold that
considering the location of the land subject matter of this
petition, sub-clause (iv) of clause (4) of Office Memorandum
th
dated 8 August, 2019 (Annexure-AG) will have no application;
(ii) It will be always open for the petitioner to make an
application for grant of a quarrying license under sub-rule (1)
of Rule 32 of the said Rules of 1994. If such an application is
made, the concerned authority which is competent to decide
the application shall decide the same as expeditiously as
possible in the light of what we have held in this judgment and
order.
(iii) The petition is allowed on the above grounds.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
KGR/ SNB
List No.: 1 Sl No.: 18