Partly allowed

M/S Bhushan Enterprises v. State of Karnataka

Karnataka HC13 Jan 2021WP/15654/2020

Case brief

AI extract

What is this about?

This judgment quashes administrative orders denying a deemed quarrying lease extension based on the unrecognized concept of a "Default Eco-Sensitive Zone" 10 km from a Wildlife Sanctuary. The Court held the concept legally non-existent without specific notification and directed authorities to reconsider the application under relevant rules within two months.

What did the court decide?

Impugned endorsements/orders denying lease extension on "Default Eco-Sensitive Zone" grounds were quashed; matter remanded to Senior Geologist for independent decision within two months.

M/S Bhushan Enterprises Vs State of Karnataka — Environment and Pollution | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JANUARY, 2021 PRESENT

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THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE

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AND

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THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.15654 OF 2020(GM-MM-S)

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BETWEEN: M/S BHUSHAN ENTERPRISES REPRESENTED BY ITS PARTNER GEORGE ABRAHAM AGED ABOUT 62 YEARS NO. 234, 1^ST STAGE NARAYANA NAGAR DODDAKALLASANDRA POST - 560 062 KANAKAPURA ROAD BENGALURU

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... PETITIONER (BY SHRI. RAVINDRA GAJANAN KOLLE, ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA BENGALURU - 560 001 2 . THE SECRETARY TO GOVERNMENT DEPARTMENT FO COMMERCE AND INDUSTRIES VIKASA SOUDAH BENGALURU BENGALURU - 560 001

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3 . THE DIRECTOR AND COMMISSIONER DEPARTMENT OF MINES AND GEOLOGY KHANIJA BHAVAN RACE COURSE ROAD BENGALURU - 560 001

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4 . THE ADDITIONAL CHIEF SECRETRY DEPARTMENT OF FORESTS ECOLOGY AND ENVIRONMENT GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BENGALURU - 560 001 5 . THE SENIOR GEOLOGIST AND COMPETENT AUTHORITY DEPARTMENT OF MINES AND GEOLOGY S3 AND S3A, ZILLADALITHA BHAVANA 2^ND FLOOR, KUMBARAHALLI, KOLAR KOLAR DISTRICT - 563 103 6 . THE DEPUTY CONSERVATOR OF FOREST O/O THE DCF, KOLAR DIVISION BANGARPET ROAD, KOLAR KOLAR DISTRICT - 563 101 7 . THE CHIEF CONSERVATOR OF FORESTS KARNATAKA FOREST DEPARTMENT ARANYA BHAVAN 18^TH CROSS MALLESHWARAM BENGALURU - 560 003 ... RESPONDENTS (BY SHRI. I.TARANATH POOJARY,AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT TO QUASH OR SET ASIDE THE ENDORSEMENT DATED:18.11.2020 AND FOREST OPINION/NOC DATED:03.11.2020 RESPECTIVELY ISSUED BY R-5 SENIOR GEOLOGIST AND 6^TH RESPONDENT DEPUTY CONSERVATOR OF FOREST PRODUCED AT ANNEXURE-A AND C RESPECTIVELY AND ETC.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THROUGH VIDEO CONFERENCING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:

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ORDER

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Notice for final disposal was issued on the earlier date.

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The petitioner was granted a quarrying lease for ordinary building stone under the provisions of the Karnataka Minor Mineral Concession Rules, 1994 (for short ‘the said Rules’). The lease was for a period of ten years. The petitioner sought for deemed extension of lease in terms of sub-rule (4) of Rule 8-A of the said Rules as amended with effect from 12^th August 2016. The challenge in this writ petition under Article 226 of the Constitution of India is to Annexures-A and C. Annexure-C is the letter addressed by the Deputy Conservator of Forest to the Senior Geologist in which it is stated that the radius of 10 Kms. from the Wildlife Sanctuary shall be considered as a "Default Eco-Sensitive Zone". In terms of the said letter, an endorsement dated 18^th November 2020 at Annexure-A has been issued stating that the site of the lease subject matter of this writ petition is at a distance of 7.40 kms. from the Kamasandra Wildlife Sanctuary (for short 'the said Wildlife Sanctuary') and therefore, it is falling within the "Default Eco-Sensitive Zone" of width of 10 Kms. It is further stated that the deemed extension for the lease will be processed after producing No Objection Certificates from the various departments and after obtaining prior approval of the Standing Committee of the National Board for Wildlife.

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The submission of the learned counsel appearing for the petitioner made on the last date was based on what is held by the Apex Court in Paragraph 50 of the decision in the case of Goa Foundation vs Union of India and others¹ . He would submit that the concept of "Default Eco-sensitive Zone" is not known to law.

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The learned Additional Government Advocate relied upon the order dated 4^th December 2016 in W.P.No.460 of 2004 passed by the Apex Court. He relied on the Official Memorandum dated 8^th August 2019 issued by the Ministry of Environment, Forest and Climate Change and in particular, sub clause (iii) of Clause 4 thereof. He has also relied upon the order dated 11^th December 2018 passed by the Apex Court in the case of T.N. Godavararman Thirumulpad .vs. Union of India and others² . At this stage, the learned Additional Government Advocate relies upon the guidelines for declaration of Eco-Sensitive Zone around the National Parks and Wildlife Sanctuaries. He, therefore, submitted that the area within the radius of 10 Kms. around the said Wildlife Sanctuary is a Eco-Sensitive Zone. He has also produced for the perusal

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1 (2014)6 SCC 590

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2 W.P.(Civil) No.202/1995

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of the Court, a draft notification proposed to be issued by the Ministry of Environment, Forest and Claimate change in respect of the said Wildlife Sanctuary.

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We have carefully considered the submissions. The petitioner is seeking a deemed extension of the lease in accordance with sub-rule (4) read with sub-rule (2) of Rule 8-A of the said Rules. The extension of period of lease under subrule (2) and sub-rule (4) is automatic as a result of deeming fiction subject to compliance of the conditions therein. In both the provisions, there is no condition imposed of obtaining no objection certificates from various Departments after obtaining prior approval of the Standing Committee of the National Board for Wildlife.

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The only ground taken in Annexures-A and C is that the radius of 10 Kms. around the said Wildlife Sanctuary shall be considered as "Default Eco-Sensitive Zone". For supporting the concept of "Default Eco-Sensitive Zone", the learned Additional Government Advocate relied upon the order dated 4^th December 2006 passed by the Apex Court in W.P.No.460 of 2004. In paragraph 50 of its decision in the case of Goa Foundation (supra) , the Apex Court has quoted

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paragraphs 4 and 5 of the said order dated 4^th December 2006 and thereafter, the Apex Court has explained the said order as under:

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" It will be clear from the order dated 4-12-2006 of this Court that this Court has not passed any orders for implementation of the decision taken on 21-1-2002 to notify areas within 10 km of the boundaries of national parks or wildlife sanctuaries as eco-sensitive areas with a view to conserve the forest, wildlife and environment. By the order dated 4-12-2006 of this Court, however, the Ministry of Environment and Forests, Government of India, was directed to give a final opportunity to all State/Union Territories to respond to the proposal and also to refer to the Standing Committee of the National Board for Wildlife the cases in which environment clearance has already been granted in respect of activities within the 10 km zone from the boundaries of the wildlife sanctuaries and national parks. There is, therefore, no direction, interim or final, of this Court prohibiting mining activities within 10 km of the boundaries of national park or wildlife sanctuaries".

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(underline supplied)

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Thus, the Apex Court, in so many words, has clarified

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that there is no direction, interim or final, issued prohibiting mining activities within the radius of 10 Kms. from the boundaries of National Parks or Wildlife Sanctuaries. Therefore, the order dated 4^th December 2006 will not help the respondents.

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Reliance is placed by the learned Additional Government Advocate on the order dated 11^th December 2008

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in T.N. Godavararman Thirumulpad (supra), a copy of which

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is annexed at Annexure-M. The said order relates to only 21 National Parks and Wildlife Sanctuaries which are specifically set out in the said order. The said Wildlife Sanctuary which is the subject matter of this writ petition is not included in the said list.

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The learned Additional Government Advocate relied upon the Office Memorandum dated 8^th August 2019. From the subject of the said Office Memorandum, it is seen that it only contains the procedure for consideration of developmental projects located within 10 Km. of National Park/Wildlife Sanctuary for grant of environmental clearance. In this case, we are not deciding the question of grant of environmental clearance to the petitioner. The only limited issue is whether a deemed extension under sub-rules (2) and (4) of Rule 8-A of the said Rules can be granted.

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The learned Additional Government Advocate also relied upon the guidelines for declaration of Eco-Sensitive Zones around National Parks and Wildlife Sanctuaries. The Guidelines note that in response, some of the State Governments had raised concerns over the applicability of radius of 10 Km. wide Eco-Sensitive Zone from the Protected

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Area Boundary. Thereafter, the Guidelines refer to National Wildlife Action Plan and the decision of National Board for Wildlife etc. Guideline No.4 is in respect of the extent of EcoSensitive Zones. Clause (1) thereof clearly indicates that defining of the extent of Eco-Sensitive Zones around the Protected Areas will have to be kept flexible and Protected Area specific. The width of the Eco-Sensitive Zone and the type of Regulations will differ from Protected Area to Protected Area. It is observed that as a general principle, the width of the Eco-Sensitive Zone could go up to 10 Kms. around a Protected Area. Sub-clause 2 of clause 4 refers to cases where EcoSensitive Zone can be extended beyond 10 Kms. Thus, the guidelines relied upon by the learned Additional Government Advocate itself makes it clear that the same does not provide for a straight jacket formula that in case of every Wildlife Sanctuary, the radius of 10 Kms. around it should be construed as Eco-Sensitive Zone. Thus, the said Guidelines would not help the learned Additional Government Advocate to support the concept of "Default Eco-Sensitive Zone" of 10 Kms.

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On the contrary, the learned Additional

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Government Advocate produces for the perusal of the Court a draft Notification which is yet to be issued by the Central

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Government in respect of the said Wildlife Sanctuary where it is proposed that the area falling within the radius of 3.90 Kms. is proposed to be declared as Eco-Sensitive Zone. As stated earlier, even according to the impugned endorsement, the area subject matter of lease is at a distance of 7.40 Kms.

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Thus, the impugned endorsements/orders at Annexures-A and C are based on a non-existing concept of "Default Eco-Sensitive Zone" of radius of 10 Kms. around every Wildlife Sanctuary. Therefore, only on the basis of the concept of "Default Eco-Sensitive Zone", the prayer for grant of deemed extension made by the petitioner could not have been rejected and the said prayer ought to have been considered within the four corners of law.

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12. Accordingly, we pass the following order:

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i) The impugned endorsements/orders at Annexures-A

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and C are hereby quashed only on the ground that the deemed extension as provided in sub-rule (2) read with sub-rule (4) of Rule 8-A of the said Rules cannot be denied to the petitioner only on the ground that the lease area is in "Default EcoSensitive Zone" forming part of the radius of 10 Kms. around the said Wildlife Sanctuary;

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