Full Judgment Text
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos.1627-1628 of 2022
(@ Diary No.19961 of 2020)
Binay Kumar Dalei & Ors.
.... Appellant(s)
Versus
State of Odisha & Ors.
…. Respondent(s)
J U D G M E N T
L. NAGESWARA RAO, J.
1. Rural Organisation for Social Empowerment -
Respondent No.8 herein, filed Original Application No. 02
of 2019 before the National Green Tribunal, Principal
Bench, New Delhi (hereinafter, ‘the NGT’) for a direction to
the opposite parties therein to cancel the stone quarry
leases granted pursuant to an advertisement dated
17.08.2017. Respondent No.8 also sought for a direction
that no further lease shall be granted in the Kuldiha
Wildlife Sanctuary and the eco-sensitive zone lined to it,
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as were notified in the notification dated 09.08.2017. It
was further prayed that an enquiry should be conducted
into the illegal and unlawful advertisement for long term
leases in the wildlife sanctuary. During the pendency of
the Original Application, the NGT vide orders dated
22.01.2019 and 12.03.2019 called for a report from the
Principal Chief Conservator of Forests, Head of Forest
Force (hereinafter ‘PCCF (HoFF)’) after conducting an
inspection of the Eco-Sensitive Zone surrounding the
Kuldiha Wildlife Sanctuary. Based on the report submitted
by the PCCF (HoFF), the NGT by an order dated
16.10.2019 directed the State Government to take steps
for bringing the entire corridor within the ambit of eco-
sensitive zone and prohibit ingress into the eco-sensitive
zone. Pursuant to this order of the NGT, Tehsildar Khaira
directed the stoppage of operations of stone quarries in
the Sarisua Hills. Aggrieved thereby, the Appellants, who
were the lease holders of these stone quarries, filed an
application for impleadment which was rejected by the
NGT on 04.12.2019. On 18.02.2020, the NGT disposed of
the Original Application by directing that no mining
activity shall be permitted within and in the vicinity of
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Simplipal - Hadagarh - Kuldiha – Simplipal elephant
corridor. The Tribunal ordered completion of the process
under Section 36 of the Wildlife (Protection) Act, 1972
(hereinafter, ‘the Act’) for declaration of conservation
reserve in respect of the elephant corridor within a period
of three months. The Appellants have filed this appeal
assailing the correctness of the orders passed by the NGT.
2. By a notification dated 29.01.2001 issued by the
Government of Odisha, Forest and Environment
Department, area comprising of portions of Mayurbhanj,
Balasore, Bhadrak and Keonjhar was declared as an
elephant reserve – Mayubhanj (Similipal-Kuldiha-
Hadgarh) Elephant Reserve, under the Central Scheme
“Project Elephant”. The total area of the elephant
reserve was shown as 3213.81 sq. kms and the core area
was 845 sq. kms of the existing Similipal Sanctuary. With
respect to the taking up of non-forestry activities in
wildlife habitats, the Government of India, Ministry of
Environment and Forests (Wildlife Division) issued a
guideline document on 15.02.2011. It was mentioned
in the said document that environmental clearances for
any project that falls within 10 kms boundary of the
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National Parks and Sanctuaries will be subject to the
recommendations of the Standing Committee of National
Board for Wildlife (hereinafter ‘NBWL’). The user
agency/project proponent has to seek prior permission
from the Standing Committee of the NBWL before
seeking environmental clearance in case the concerned
project is located within the eco-sensitive zone or within
10 kms in absence of delineation of such a zone from the
boundaries of National Parks, Wildlife Sanctuaries or is
an Elephant Reserve/Tiger Reserve and/ or important
corridors of wildlife movement.
3. In order to operate certain stone quarries near
Kuldiha Wildlife Sanctuary, the State of Odisha submitted
a proposal to the Standing Committee of NBWL. In its
th
40 meeting held on 03.01.2017, the Standing
Committee of NBWL considered the proposal of the State
of Odisha involving operation of 97 Nos. of stone
quarries at a distance of 2 kms from the boundary of
Kuldiha Wildlife Sanctuary. After due deliberations, the
Standing Committee agreed to recommend the proposal
subject to the implementation of a Comprehensive
Wildlife Management Plan in the region, for mitigation of
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impact which would be caused by operation of all
quarries and transportation of materials.
4. Subsequently, a Comprehensive Wildlife
Management Plan for mitigation of impact which would
be caused by operation of stone quarries in Khaira Tehsil
near Kuldiha Wildlife Sanctuary, Balasore was prepared
by the Divisional Forest Officer, Wildlife Division,
Balasore and was approved by the Government of
Odisha. It was noted in the said plan that 97 stone
quarries are located immediately south to the Hadgarh
Kuldiha Elephant Corridor which is a part of the
traditional Similipal – Hadgarh - Kuldiha Elephant
Corridor. It was also stated that the corridor between
Hadgarh and Kuldiha is used round the year for
movement of elephant, herbivores and cats. On-site and
off-site environmental affects that can be generated by
quarrying through blasting, excavation, crushing,
screening, stockpiling and transporting of aggregate
were also recognised in the plan. It was mentioned that
the environmental effects of quarrying, primarily
includes the disturbance of land and vegetation, dust,
vibration, noise, traffic, visual effects, impact on cultural
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and historical values, the discharge of contaminants into
the air, water and land. Methods to manage noise
issues, dust and air quality issues, traffic issues, and
water quality issues have also been suggested in the
Comprehensive Wildlife Management Plan.
5. On 09.08.2017, a notification was issued by the
Ministry of Environment and Climate Change,
Government of India in exercise of powers conferred by
sub-section (1) and clauses (v) and (xiv) of Sub-Sections
(2) and (3) of Section 3 of the Act read with Sub-Rule 3 of
Rule 5 of the Environment (Protection) Rules, 1986. By
the said notification, the area with an extent varying
from zero (along with urban areas/NAC areas adjoining
the boundary on Eastern side), 500 metres on South-
Eastern side, 7 kms on Western Side up to Keonjhar
District to 2 kms around Kuldiha Wildlife Sanctuary in the
State of Odisha was notified as Kuldiha Wildlife
Sanctuary eco-sensitive zone. The notification clarified
that the Eco-Sensitive Zone of Kuldiha Wildlife Sanctuary
included the corridor linking Kuldiha wildlife Sanctuary of
Balasore district and Hadgarh Wildlife Sanctuary of
Keonjhar district. According to the notification, all
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activities in the eco-sensitive zone were to be governed
by the provisions of the Act and the Rules made
thereunder.
6. It was only after this notification, that the Tehsildar
Khaira had issued an advertisement on 17.08.2017,
inviting applications from interested persons for long-
term lease of Sarisua Kapilajhari Bandhanata - 97 Sairat
Source (Minor Minerals) for a period of five years from
the year 2017-18 to 2021-22. Environmental clearances
were granted by the District Environmental Impact
Assessment Authority (DEIAA) for the stone quarries on
recommendation of the DEAC, pursuant to which
quarrying operations were started by the Appellants and
other lease holders in March, 2018.
7. In light of the controversy that arose before the
NGT, it is necessary to quote certain relevant portions of
the report submitted by the PCCF (HoFF), Odisha
pursuant to the orders by the NGT. The relevant portion
reads as under: -
"Ill. Frequent movement of elephants is reported
from Kuldiha Wildlife Sanctuary on the foothills of
Sukhuapata hill of Mayurbhanj district up to Kala
reservoir of Kaptipada Range of Baripade. The
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corridor between Hadgarh & Kuldiha is used round
the year by the elephants for its movement. There
is an evident threat to the habitat and the Elephant
corridor due to quarrying because of its onsite and
ofsite environmental effects. The fact of existence
of these quarries around the traditional Similipal
-Hadgarh - Kuldiha - Similipal elephant corridor was
th
place by the State CWLW before the 40 Meeting of
SC-NBWL which, recommended the proposal for
operation of 97 stone quarries with certain pre-
conditions as detailed earlier at Para No. 1. Though,
these 97 quarries form a cluster as requisite no
environment management plan has been
submitted by the Revenue Authorities yet.
IV. Accordingly, as per the recommendation of the
th
40 meeting of SC-NBWL, a comprehensive:
Wildlife Management Plan (CWLMP) to mitigate the
impact to be caused by, operation of all quarries &
transportation of- materials got approved by the
Government of Odisha, F & E Department during
July 2017 with financial outlay of Rs. 677.13 lakh
to be spent over a period of I0 years. Part of the
proposal for taking of Bald hill plantation over 200
ha. at an estimated cost of Rs. 408:40 lakhs was
proposed to be addressed 'through the
CAMPA/other State Funding and rest funds of
677.13 lakh wa1 to be allocated from Environment
cost to be released from all quarries rationally in
proportion to the quantity of production. However,
it is observed that the payment of Environment
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Cost towards implementation of the CWLMP is yet
to be made by the Revenue authorities. "
8. On the basis of the above observations, PCCF
(HoFF) gave the following recommendations: -
"A. Those quarries those that have made ingress
into ESZ boundary must be penalized as per extent
of ingress & destruction particulars. In this regard,
Mining Department and Revenue Department
jointly in each of these observed cases may assess
damage cost /restoration cost, responsible quarries
for the damage and realization of penalty amount
etc. If needed, necessary services of expert
organization like ICFRE, Dehradun /TERI, New Delhi
may be taken in this regard. Till the completion of
the exercise, the operation of these quarries may
be considered to be stoped.
B. District Collector-cum-Chairman, DEIAA, Balasore
may allow further quarry operation in the area only
after obtaining specific clearance by SEIAA, Odisha
as per order dated 11.12.2018 of the Hon'ble NGT
in the Executive Application No. 55/2018 in O.A No.
520/2016, Vikrant Tongad Versus Union of India,
directing that the notification dated 15.01.2016 of
MoEFF& CC will stand suspended till a fresh
notification issued by the MoEFF& CC, New Delhi.
C. There is every likelihood in future of further
higher ingress of quarries in the Eco Sensitive
Zone, considering the close vicinity of these
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quarries to the ESZ. In order to avoid any further
future ingress within the limit of ESZ, DGPS
(Differential Global Positioning System) mapping
should be immediately taken up for all the 97
quarries with permanent pillar posting. The vector
polygon of the quarries may be shared with all
concerned departments. The intactness of all the
ESZ pillars for demarcation of ESZ must be ensured
by the Revenue Department as some of the pillars
during field visit were found missing. The
Environment Management Plan for cluster of the
quarries is yet to be finalized with ensuring its strict
adherence. Further, implementation of
Comprehensive Wildlife Management Plan by
immediate deposit of Environment Cost by the
District Administration needs to be ensured. A
"Monitoring Committee" as recommended by NBWL
& NTCA may be constituted immediately at the
district level to look into the wildlife & environment
issues on bi-monthly basis.
D. As quarry operation is being carried out adjacent
to the identified traditional Similipal - Hadgarh -
Kuldiha - Similipal Elephant Corridor, process
should be initiated with the pending proposal for
declaration of the conservation Reserve in that
area U/S- 36 of the Wildlife (Protection} Act 1972
by the Principal Chief conservator of Forests
(Wildlife) & CWLW, Odisha in order to avoid further
destruction in that corridor apart from other site
specific restoration plan as deemed appropriate to
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mitigate the impact caused due to rampant quarry
operation and maintain ecological balance."
9. Based on this report of the PCCF (HoFF) and being
concerned with the stone quarries operating adjacent to
the elephant corridor, the NGT by an order dated
16.10.2019, directed the State Government to consider
bringing the entire elephant corridor within the ambit of
eco-sensitive zone. A further direction was given by the
NGT for implementation of the recommendations made
by the PCFF (HoFF), Odisha. Out of the 97 stone
quarries, 11 quarries were found to have ingressed into
the eco-sensitive zone. By its judgment dated
18.02.2020, the NGT directed the said 11 quarries to
confine their activities outside the eco-sensitive zone.
The process under Section 36 of the Act for declaration
of the traditional elephant corridor as a conservation
reserve was directed to be completed within three
months. The Original Applications were disposed of with
a direction that no mining activity shall be permitted
within and in the vicinity of Similipal - Hadgarh - Kuldiha -
Similipal Elephant Corridor. The Appellants who are the
lease holders and whose applications for impleadment
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were rejected by the NGT are aggrieved by the direction
of stoppage of mining activity in the vicinity of the
elephant corridor.
10. We have heard Mr. Ramesh P. Bhatt, learned Senior
Counsel for the Appellants, Ms. Aishwarya Bhati, learned
Additional Solicitor General of India appearing for MOEF,
Government of India, Mr. Ashok K. Parija, learned
Advocate General for the State of Odisha, Mr. Ranjit
Kumar and Mr. Manoj Swarup learned Senior Counsel
appearing for Respondent No.8. The main contention of
the Appellants is that their stone quarries are not
amongst the 11 quarries which are said to have
ingressed into the eco-sensitive zone. They contended
that their stone quarries are not within the eco-sensitive
zone and admittedly the stone quarries are situated on
the other side of the hillock. Therefore, there is no
reason as to why the operation of their quarries should
be stopped. The Appellants further contended that the
NGT refused to hear the Appellants before passing an
order which is detrimental to their interests and in
violation of the principles of natural justice.
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11. Mr. Ashok K. Parija, learned Advocate General for
the State of Odisha referred to the guidelines that were
issued by the Ministry of Environment and Forests
(Wildlife Division) for taking up non-forestry activities in
wildlife habitats and submitted that the Standing
Committee of the NBWL approved the proposal of
th
quarrying operations in its 40 meeting. He relied on the
maps to show that the quarries of the Appellants were
well outside the eco-sensitive zone and submitted that
there is constant monitoring of any ingress by the
lessees into the eco-sensitive zone. He argued that
there is a contradiction in the impugned order passed by
the Tribunal. He submitted that vide the said order, 11
quarries which have ingressed into the eco-sensitive
zone were directed to confine their activities outside the
eco-sensitive zone and at the same time, there was also
a direction that no mining activity would take place in
the vicinity of the elephant corridor. The learned
Advocate General agreed that quarrying operations
should be permitted around the eco-sensitive zone,
subject to the implementation of the Comprehensive
Wildlife Management Plan. During the pendency of the
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dispute, an affidavit was filed on behalf of the State of
Odisha in which it has been stated that the process for
declaration of Similipal - Hadgarh - Kuldiha – Similipal
traditional Elephant Corridor as conservation reserve is
under active consideration and a proposal for declaration
of 2781.485 hectares of land as conservation reserve
has already been placed before the Government on
03.02.2022, after completion of all the ground work and
statutory requirements.
12. Mr. Manoj Swarup, learned Senior Counsel
appearing for Respondent No.8 submitted that the
Comprehensive Wildlife Management Plan might be in
place, but it requires to be implemented before
commencement of the mining operations. He stated
that several measures have been suggested in the
Comprehensive Wildlife Management Plan for mitigation
of the impact caused by the quarrying, which have not
been undertaken till date. He argued that the Standing
Committee of NBWL approved the proposal for quarrying
operations, subject to the implementation of
Comprehensive Wildlife Management Plan. According to
Mr. Swarup, no mining operations can take place without
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prior implementation of the Plan. Mr. Ranjit Kumar,
learned Senior Counsel supplemented the arguments
made by Mr. Manoj Swarup. He referred to Section 36A
of the Act and argued that it is incumbent on the State
Government to declare areas adjoining to the National
Parks and Sanctuaries and those areas which link one
protected area with another as a conservation reserve
for protecting landscapes, seascapes, flora and fauna
and their habitat. He placed reliance on Section 36A(2),
according to which the provisions of Sub-Section (2) of
Section 18, Sub-sections (2), (3) and (4) of Section 27,
Section 30, 32 and clauses (b) and (c) of Section 33
shall, as far as may be, apply in relation to a
conservation reserve as they apply relation to a
sanctuary. He relied upon judgments of this Court in
Hospitality Association of Mudumalai v. In Defence
1
of Environment and Animals & Ors. and Goa
2
Foundation v. Union of India which dealt with the
importance of preserving elephant corridors and wildlife
sanctuaries.
1 (2020) 10 SCC 589
2 (2014) 6 SCC 590
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13. Ms. Aishwarya Bhati, learned Additional Solicitor
General appearing of behalf Respondent No. 2 - Ministry
of Environment, Forest & Climate Change (MoEF) drew
the attention of this court to the fact that the impugned
order inadvertently mentions Section 36, however the
relevant provision for declaration of the elephant corridor
as a conservation reserve would be Section 36A of the
Act. She submitted that the MoEF has no objection to the
operation of stone quarries outside the eco-sensitive
zone if the requirement of Section 36A and the
conditions in Comprehensive Wildlife Management Plan
are complied with.
14. The point that arises for consideration of this Court
in this appeal is in a narrow compass. The Appellants
have filed this appeal aggrieved by that part of the order
issued by the NGT by which mining activity in the vicinity
of Similipal - Hadgarh - Kuldiha – Similipal Elephant
Corridor has been ordered to be stopped. According to
the Appellants and the State Government there is no
justification for stopping mining activity in the area
which does not fall within the eco-sensitive zone.
Whereas, the learned Senior Counsel for Respondent
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No.8 contended that no mining activity can be permitted
even in the vicinity of an eco-sensitive zone unless the
Comprehensive Wildlife Management Plan has been
implemented and Section 36A of the Act has been
complied with. The objection on behalf of Respondent
No. 8 is only on the ground that the comprehensive
wildlife management plan has not been implemented
and that Section 36A of the Act has not been complied
with. The learned Advocate General for the State of
Odisha submitted that the mining operations will be
permitted only after implementation of the
Comprehensive Wildlife Management Plan. He stated
that compliance of Section 36A of the Act for declaration
of the elephant corridor as conservation reserve is in the
advanced stage of consideration by the State
Government.
15. The dispute can be resolved by giving a direction to
the State Government to implement the Comprehensive
Wildlife Management Plan and complete the process of
declaration of the traditional elephant corridor as
conservation reserve as provided in Section 36A of the
Act.
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16. Therefore, the State of Odisha is directed to
implement the Comprehensive Wildlife Management Plan
as suggested by the Standing Committee of NBWL
before permitting any mining activity in the eco-sensitive
zone. The State is also directed to complete the process
of declaration of the traditional elephant corridor as
conservation reserve as per Section 36A of the Act
expeditiously. The mining operations of 97 quarries shall
be permitted only thereafter.
17. Mr. Bhatt and Mr. Dash, learned Senior Counsel
requested this Court to direct the Government to
compensate for the losses incurred for period during
which they were not permitted to carry out mining
operations despite holding a valid lease in their favor. We
are afraid that we cannot issue such directions. However,
the Appellants are at liberty to approach the Government
for redressal of their grievances.
18. With the above directions, the Civil Appeals are
disposed of.
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Civil Appeal No. 1529 of 2022
19. This appeal arises out of the same order dated
18.02.2020 passed by the NGT in O.A. No. 02/2019(EZ).
This appeal is disposed of in terms of the judgment in
Civil Appeal Nos. 1627-1628 of 2022.
............................................J.
[ L. NAGESWARA RAO ]
.....................................J.
[ B.R. GAVAI ]
New Delhi,
March 02, 2022.
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