Automatic 10-km ESZ around Kali Tiger Reserve not applicable where a proposal exists; HC orders fresh review of quarrying application

The petitioner sought a quarrying lease for clay over one acre in Sy. No. 243/122, Plot No. 485, Ramnagar (Akrali) Village, Joida Taluk, Uttara Kannada District.

The Deputy Conservator of Forests rejected the request for a No Objection Certificate by endorsement dated 5 January 2023, on the ground that the land was situated 9.5 kilometres from the Kali Tiger Reserve (KTR) and that commercial mining was impermissible within the alleged 10-kilometre “default” Eco-Sensitive Zone (ESZ) around the Reserve.

The respondents defended the endorsement on the basis that commercial mining within 10 kilometres of KTR was prohibited pending final notification of the ESZ.

The petitioner challenged this premise under Articles 226 and 227 of the Constitution, relying on the Supreme Court’s decisions in Goa Foundation v. Union of India and In Re: T.N. Godavarman Thirumulpad v. Union of India, and on the Karnataka High Court’s decision in M/s. Bhushan Enterprises v. State of Karnataka.

1. Whether a uniform 10-kilometre “default ESZ” automatically applied around the boundaries of the Kali Tiger Reserve merely because its final ESZ notification had not yet been issued

2. Whether commercial mining was prohibited on the petitioner’s land, situated 9.5 kilometres from KTR, solely on the basis of the alleged default 10-kilometre ESZ

The Court applied the Ministry of Environment and Forests’ ESZ Guidelines dated 9 February 2011, which provide that the extent and regulatory regime of an ESZ must be flexible and protected-area-specific; the general reference to an ESZ extending “up to 10 kilometres” is not a mandatory or automatic rule.

It relied on Goa Foundation v. Union of India (2014) 6 SCC 590, which clarified that no blanket prohibition on mining within 10 kilometres of every national park or sanctuary had been issued.

The Court also considered In Re: T.N. Godavarman Thirumulpad v. Union of India, (2022) 10 SCC 544, including the direction that a 10-kilometre buffer would operate where no ESZ proposal had been submitted, and the subsequent clarification in Godavarman-II, 2023 SCC OnLine SC 504, that the ESZ regime must be governed by the applicable notifications and proposals.

The Court further followed M/s. Bhushan Enterprises v. State of Karnataka, W.P. No. 15654 of 2020, which rejected the concept of a universally applicable “default ESZ” of 10 kilometres.

Mining within a national park or wildlife sanctuary remains prohibited, but that prohibition does not, by itself, create an automatic 10-kilometre prohibition outside the protected area.

The Court found that the State had submitted a proposal for an ESZ around KTR, and that a draft notification dated 2 November 2016 had proposed an ESZ extending seven kilometres around the Reserve.

The proposal was subsequently considered by the Expert Committee, which recorded that the State had proposed reducing the ESZ and recommended finalisation of the draft notification after examination of the revised proposal.

Therefore, KTR was not a protected area for which no ESZ proposal had been submitted.

The condition triggering the 10-kilometre interim buffer under paragraph 56.8 of Godavarman-I was consequently absent.

The Court further held that the 2011 Guidelines did not establish a rigid 10-kilometre ESZ around every protected area, and that Goa Foundation-II had expressly clarified that the Supreme Court had not prohibited mining activities within 10 kilometres as a general rule.

Since the impugned endorsement rejected the petitioner’s application solely on the basis of the non-existent concept of a default 10-kilometre ESZ, it was founded on an erroneous legal premise.

The endorsement dated 5 January 2023 was therefore set aside.

The respondents were directed to reconsider and examine the petitioner’s application for the quarrying lease afresh, in accordance with law and without relying merely on the alleged default 10-kilometre ESZ.