SC lifts complete ban on ESZ constructions | Latest News India - Hindustan Times
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SC lifts complete ban on ESZ constructions

By, New Delhi
Apr 27, 2023 12:10 AM IST

A bench led by Justice BR Gavai noted that its 2022 order on uniform ESZs was not workable and that its directive prohibiting all development activities within such zones is “impossible to be implemented”

The Supreme Court on Wednesday modified its June 2022 order that ruled each national park and wildlife sanctuary must have an eco-sensitive zone (ESZ) of minimum 1km, measured from the demarcated boundary of such protected forest, while also lifting a complete ban on development and construction activities within ESZs.

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A bench led by Justice BR Gavai noted that its 2022 order on uniform ESZs was not workable and that its directive prohibiting all development activities within such zones is “impossible to be implemented”.

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“The area to be declared as ESZ cannot be uniform and will be protected area specific. In some cases, it may be 10km on one side and 500m on the other side. In certain cases, it may not be possible to have a uniform minimum area by virtue of interstate boundaries or a sea or a river beyond one side of the protected area... we find that the direction which prescribes a uniform 1km ESZ requires to be modified,” said the bench, which also comprised justices Vikram Nath and Sanjay Karol.

Accepting the Centre’s review plea, the court took note of Rule 5 of the Environment (Protection) Rules, 1986 laying down an extensive procedure for notifying an ESZ and prohibiting or restricting various activities in the specified areas.

“Such notifications cannot be issued unless a close scrutiny at various levels including the scrutiny by an expert committee, consisting of experts from 13 organisations, is carried out,” noted the bench, adding the guidelines issued by the Union ministry of environment, forests and climate change (MoEFCC) in 2011 were “reasonable” and acceptable to the court.

In its order, the bench noted that final notifications have been issued by the Centre in respect of 474 protected areas, while draft notifications issued in respect of 102 protected areas and 73 other proposals are pending. It said that the previous order of the court will not apply to ESZs in respect of which a draft and final notification has been issued by the MoEFCC and in respect of the proposals which have been received by the Ministry. The bench, however, asked the ministry to give wide publicity to the draft notification, adding final notifications on ESZs shall not be given effect for a period of 30 days from the issuance, enabling an aggrieved party to approach the court.

About the prohibition against construction activities within ESZs, the top court held that there are inbuilt safeguards under the ESZ notification for preventing rampant construction and abuse of process which may be detrimental to the development and maintenance of wildlife habitats.

“If such a direction is continued, rather than avoiding man-animal conflict, it will intensify the same. As observed in the said guidelines, the requirement of declaring ESZs is not to hamper day to day activities of the citizens but is meant to protect the precious forests and protected areas from any negative impact, and to refine the environment around the protected areas,” said the bench.

It pointed out that MoEFCC’s February 2011 ESZ guidelines lay down the activities prohibited and those permitted under strict regulation. “The MoEFCC and all the state/Union territory governments shall strictly follow the provisions in the said guidelines dated 9th February 2011 and so also the provisions contained in the ESZs notifications pertaining to the respective protected areas with regard to prohibited activities, regulated activities and permissible activities,” it directed.

The bench also approved the office memorandum of MoEFCC dated May 17, 2022 which prescribed that any development activity in a notified ESZ, or in the case of national parks and sanctuaries for which no ESZ has been finally notified, will require consideration and recommendation of the National Board for Wildlife (NBWL) or its standing committee in addition to the environment clearance under the 1986 Act.

“We further direct that while granting environmental and fForest clearances for project activities in ESZ and other areas outside the protected areas, the Union of India as well as various state/Union territory governments shall strictly follow the provisions contained in the Office Memorandum dated 17th May 2022 issued by MoEFCC,” directed the court.

At the same time, the bench clarified that mining within the national park and wildlife sanctuary and within an area of 1km from the boundary of such protected forest “shall not be permissible”.

In June 2022, the Supreme Court directed all national parks and wildlife sanctuaries falling under protected forests to earmark a minimum distance of one kilometre as ESZ where prohibited activities, including mining and establishment of any new permanent structure, will not be permitted.

In its review plea, the Union government argued millions live in ESZs. It said the court’s directions last year will have ramifications on the lives of local communities living around national parks and sanctuaries, and ecological development work. Several state governments also requested an alteration of the court order.

It pointed out that the ESZ around Nagarjunasagar Srisailam Tiger Reserve in Andhra Pradesh extends from 0 to 26 km and 100 villages are situated within it. The ESZ around Valmiki Wildlife Sanctuary, Valmiki National Park and Valmiki Tiger Reserve in Bihar extends from 0 to 9km and 323 villages are situated within it. The Centre cited similar examples from protected forest areas in Jharkhand, Karnataka, Madhya Pradesh, Maharashtra and Rajasthan where a large number of villages were situated within ESZs.

The Kerala government, on its part, had told the court that forests account for nearly 30% of the state’s area. It cited the state’s population density and added that much of its land was occupied and that the court’s order posed practical difficulties for the state. The 2022 order also impacted the Kerala high court building, which is located within 200 metres of the Mangalavanam Bird Sanctuary.

Experts were sceptical of the order.

“The Supreme Court although right in directing the states to strictly follow the 2011 guidelines, itself gave a contrary observation while relaxing the 1km minimum ESZ given in its previous order. The judgment gave an observation that in certain cases it may not be possible to have a uniform minimum area by virtue of inter-state boundaries or a sea or a river beyond one side of the protected area. In contrary, the 2011 guidelines clearly says that if a PA’s boundary overlaps with interstate border, both the state/UT shall endeavour to reach a mutual consultation and decide the minimum ESZ,” said Debadityo Sinha, Lead- Climate & Ecosystems, Vidhi Centre for Legal Policy.

The Kerala government, however, welcomed the order.

“It is a big relief for the state. We heard all restrictions on permanent structures will go now. We are yet to get details of the verdict. We will try for more relaxations,” said Kerala forest minister AK Saseendran, adding that the government is committed to protect people living in the fringe areas of forests.

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