ESZ Boundaries Of 1 KM Not To Apply To Tungareshwar Sanctuary: Supreme Court
Several large-scale projects in that area which were ongoing in accordance with the Final Notifications were halted by the Forest Department if they fell within the 1 km ESZ boundary.
The Supreme Court has clarified that the ESZ boundaries of 1 km fixed by it vide an earlier order passed in June will not apply to Tungareshwar Sanctuary.
(“CREDAI”), the apex body of real estate developers filed an Interim Application before the Supreme Court in Re: T. N. Godavarman Thirumulpad v Union of India & Ors (IA NO. 1000 of 2003 in Writ Petition (C) No. 202 of 1995) for clarification of the order dated June 3, 2022, passed by the Hon’ble Supreme Court (“June Order”) with respect to the Eco-Sensitive Zone (“ESZ/s”) around Tungareshwar Sanctuary.
On February 9, 2011, the Ministry of Environment, Forest & Climate Change (“MoEF & CC”) framed guidelines to facilitate the States / Union Territories for declaration of ESZs around National Parks and Wildlife Sanctuaries (“Guidelines”). As per the said Guidelines, the purpose behind declaration of ESZs was to regulate rather than prohibit certain activities around National Parks / Sanctuaries so as to minimise the negative impact of such activities on the fragile ecosystem encompassing these protected areas. The MoEF & CC had constituted an Expert Committee for considering the proposals received from the State Governments for ESZs.
In the interregnum, MOEF&CC published a draft notification for Tungareshwar Sanctuary in December 2018 calling for suggestions/objections and thereafter the final notification was issued on September 11, 2019 (“Tungareshwar Final Notification”). The ESZ in the Tungareshwar Final Notification was set as 100m to 4km. Subsequently, as no proposals were received for 21 National Parks/Wildlife Sanctuaries, vide an order dated December 11, 2018, the Hon’ble Supreme Court directed, as an interim measure, that an area of 10 kms around these 21 National Parks / Wildlife Sanctuaries (including the Flamingo Creek) be declared as an ESZ by the MoEF & CC and granted liberty to State Governments to move for modification along with the proposals (“2018 December Order”).
The June Order was passed by the Hon’ble Supreme Court, inter alia, directing that:
the Guidelines are reasonable in suggesting that a 1 km boundary for Category B forests is reasonable, however subject to changes in special circumstances, and
a direction for a mandatory 1 km boundary to be fixed for each protected national park or wildlife sanctuary.
In view of the fact that the Tungareshwar Final Notification was already in force, CREDAI-MCHI filed the application seeking clarification on:
(a) Final ESZ notification in respect of Tungareshwar was already published by Ministry of Environment and Forest & CC on September 11, 2019, and
(b) Whilst, passing the June order this notification was inadvertently not brought to the notice of the Court and thus it remained to be carved out of the June order,
The Interim Application was heard by the specially constituted Green bench comprising Their Lordships the Hon’ble Mr. Justice B R Gavai and the Hon’ble Mr. Justice Vikram Nath on November 30, 2022 and the Hon’ble Court passed an order clarifying that the ESZ boundaries of 1 km fixed by them vide the June Order will not apply to Tungareshwar Sanctuary.
This order has brought a huge respite and relief to the real estate development sector as several large-scale projects in that area which were ongoing in accordance with the Final Notifications were halted by the Forest Department if they fell within the 1 km ESZ boundary.
Earlier the team had procured same relief for the clients in respect of Sanjay Gandhi National Park and Thane Creek Flamingo Sanctuary.
Counsels: Sr. Advocate Mr. Mukul Rohatgi
DSK Legal: Ms. Shivani Khanwilkar (Senior Associate), Ms. Saloni Shah (Senior Associate), Mr. Akhil Anand (Partner) and Mr. Samit Shukla (Partner).
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