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Page No.# 1/15
GAHC010193612013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6179/2013
1:STAR CEMENT LTD.
GOPINATH BORDOLOI ROAD, VILLAGE CHAMATAPATHAR, DIST.
KAMRUP M,GUWAHATI- 782402.
VERSUS
1:STATE OF ASSAM and ORS.
REP. BY THE COMMISSIIONER AND SECRETARY TO THE GOVT. OF
ASSAM, ENVIRONMENT AND FORESTS DEPARTMENT,DISPUR, GUWAHATI
2:THE SECRETARY
GOVT. OF ASSAM
ENVIRONMENT and FORESTS DEPARTMENT
DISPUR
GUWAHATI.
3:THE PRINCIPAL
CHIEF CONSERVATOR OF FORESTS
WILD LIFE
ASSAM
BASISTHA
GUWAHATI-29
4:THE ADDITIONAL PRINCIPAL
CHIEF CONSERVATOR OF FORESTS IT
OFFICE OF THE PRINCIPAL CONSERVATOR OF FORESTS AND HEAD OF
FORESTS FORCE
ASSAM
REHABARI
GUWAHATI.
5:THE ADDITIONAL PRINCIPAL
CHIEF CONSERVATOR OF FOREST OF ASSAMT
Page No.# 2/15
LOWER ASSAM ZONE
GUWAHATI.
6:THE CHIEF CONSERVATOR OF FORESTS
CENTRAL ASSAM CIRCLE
GUWAHATI.
7:THE DIVISIONAL FOREST OFFICER
KAMRUPEAST
DIVISION
BASISTHA
GUWAHATI-29
8:THE ADDITIONAL PRINCIPAL
CHIEF CONSERVATOR OF FORESTSC
GOVT. OF INDIA
MINISTRY OF ENVIRONMENT AND FORESTS
SHILLONG.
9:UNION OF INDIA
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA
MINISTRY OF ENVIRONMENT AND FORESTS
PARIYAVARAN BHAWAN
CGO COMPLEX
LODHI ROAD
NEW DELHI
110003.
10:SRI RATNESWAR RONGHANG
S/O LATE KANU RAM RONGHANG
R/O VILL- BELGUM
P.O- TOPATALI
DIST- KAMRUP (M)
11:SRI JATINDRA NATH DEKA
S/O- SRI HORENDRA NATH DEKA
R/O- VILL- KHETRI
P.O.AND P.S- KHETRI
PIN- 782403
DIST-KAMRUP(M)
ASSAM
12:SRI S.K. SHARMA
S/O- LATE SHIV DUTTA SHARMA
R/O 30
CHANDAN NAGAR
Page No.# 3/15
SURVEY
BELTOLA ROAD
GUWAHATI-2
Advocate for the Petitioner : DR. ASHOK SARAF
Advocate for the Respondent : GA, ASSAM
Linked Case : WP(C) 6180/2013
1:RAKSHA CEMENTS PVT. LTD.
KAMARKUCHI P.O. TAPESIA 07-2402
DIST. KAMRUP
ASSAM.
VERSUS
1:STATE OF ASSAM and ORS.
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
ENVIRONMENT and FORESTS DEPARTMENT
DISPUR
GUWAHATI.
2:THE SECRETARY
GOVT. OF ASSAM
ENVIRONMENT and FORESTS DEPARTMENT
DISPUR
GUWAHATI.
3:THE PRINCIPAL
CHIEF CONSERVATOR OF FORESTS
WILD LIFE
ASSAM
BASISTHA
GUWAHATI-29
4:THE ADDITIONAL PRINCIPAL
CHIEF CONSERVATOR OF FORESTS IT
OFFICE OF THE PRINCIPAL CONSERVATOR OF FORESTS AND HEAD OF
FORESTS FORCE
ASSAM
REHABARI
Page No.# 4/15
GUWAHATI.
5:THE ADDITIONAL PRINCIPAL
CHIEF CONSERVATOR OF FOREST OF ASSAMT
LOWER ASSAM ZONE
GUWAHATI.
6:THE CHIEF CONSERVATOR OF FORESTS
CENTRAL ASSAM CIRCLE
GUWAHATI.
7:THE DIVISIONAL FOREST OFFICER
KAMRUPEAST
DIVISION
BASISTHA
GUWAHATI-29
8:THE ADDITIONAL PRINCIPAL
CHIEF CONSERVATOR OF FORESTSC
GOVT. OF INDIA
MINISTRY OF ENVIRONMENT AND FORESTS
SHILLONG.
9:UNION OF INDIA
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA
MINISTRY OF ENVIRONMENT AND FORESTS
PARIYAVARAN BHAWAN
CGO COMPLEX
LODHI ROAD
NEW DELHI
110003.
10:SRI AKHIL GOGOI
S/O LATE BOLURAM GOGOI
R/O NIZARAPAR
CHANDMARI
P.S- CHANDMARI
DISTRICT- KAMRUP
ASSAM.
Advocate for the Petitioner : MR.K CHOUDHURY
Advocate for the Respondent : MR.B D GOSWAMI
Linked Case : WP(C) 6320/2013
1:A.G. CEMENT LLP
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A COMPANY INCORPORATED UNDER THE COMAPNIES ACT
1956 AND HAVING ITS REGISTERE OFFICE AT 5TH FLOOR
ROOM NO. 5D
SHINE TOWER
ARYA CHOK
SHARABBHATI
GUWAHATI-781008
ASSAM.
VERSUS
1:THE STATE OF ASSAM AND 8 ORS
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
ENVIRONMENT and FOREST DEPARTMENT
DISPUR
GUWAHATI- 781006
ASSAM.
2:THE SECRRETARY
GOVT. OF ASSAM
ENVIRONMENT and FOREST DEPARTMENT
DISPUR
GUWAHATI- 781006
ASSAM.
3:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST WILD LIFE
ASSAM
BASHISTHA
GUWAHATI- 781029
ASSAM.
4:THE ADDITIONAL PRINCIPAL CHIEF
CONSERVATOR OF FOREST IT
OFFICE OF THE PRINCIPAL CONSERVATOR OF FOREST AND HEAD OF
FORESTS FORCE
ASSAM
REHABARI
GUWAHATI- 781008
ASSAM.
5:THE ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FOREST T
ASSAM LOWER ASSAM ZONE
GUWAHATI.
6:THE CHIEF CONSERVATOR OF FOREST
CENTRAL ASSAM CIRCLE
Page No.# 6/15
GUWAHATI.
7:THE DIVISIONAL FOREST OFFICER
KAMRUP EAST BASISTHA
GUWAHATI- 781029
ASSAM.
8:THE ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FORESTS C
GOVT. OF INDIA
MINISTRY OF ENVIRONMENT and FORESTS
SHILLONG
MEGHALAYA.
9:UNION OF INDIA
REP. BY THE SECRETARY TO THE GOVT. OF INDIA
MINISTRY OF ENVIRONMENT AND FORESTS
PARIYAVARAN BHAWAN
CGO COMPLEX
LODHI ROAD
NEW DELHI- 110003.
10:SRI RATNESWAR RONGHANG
S/O LATE KANU RAM RONGHANG
R/O VILL- BELGUM
P.O- TOPATALI
DIST- KAMRUP (M).
11:SRI JATINDRA NATH DEKA
S/O- SRI HORENDRA NATH DEKA
R/O- VILL- KHETRI
P.O.AND P.S- KHETRI
PIN- 782403
DIST-KAMRUP(M)
ASSAM.
12:SRI S.K. SHARMA
S/O- LATE SHIV DUTTA SHARMA
R/O 30
CHANDAN NAGAR
SURVEY
BELTOLA ROAD
GUWAHATI-28.
Advocate for the Petitioner : MR.D K DAS
Advocate for the Respondent : GA
ASSAM
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BEFORE
HONOURABLE MR. JUSTICE UJJAL BHUYAN
ORDER
Date : 27-09-2019 This order will dispose of all the above three writ petitions.
2. Heard Dr A K Saraf, learned Senior Counsel, assisted by Mr P Baruah, learned counsel for the petitioners in WP(C) Nos. 6179 and 6180 of 2013 and Mr R K Agarwal, learned counsel for the petitioner in WP(C) No. 6320/2013. Also heard Mr D Mazumdar, learned Senior Counsel and Additional Advocate General, Assam, assisted by Mr S Biswas, learned counsel for the State respondents; Mr S C Keyal, learned Assistant Solicitor General of India; Mr A C Borbora, learned Senior Counsel, assisted by Mr M Smith, learned counsel for added respondent Nos. 10, 11 and 12 in WP(C) No. 6179/2013; and Mr V Rajkhowa, learned counsel for respondent No. 10 in WP(C) No. 6180/2013.
3. In all the writ petitions, challenge made is to the closure notices issued by the State respondents in the Environment and Forest Department, Government of Assam, to close down the cement manufacturing industrial units of the petitioners on the ground that those are situated within 10 km radius from the boundary of Amchang Wildlife Sanctuary.
4. In WP(C) No. 6179/2013, impugned notice is dated 26.09.2013, issued by the Secretary to the Government of Assam, Environment and Forest Department addressed to the Divisional Forest Officer, Kamrup (East) Division to take immediate steps for closure of three cement units, which are situated within 10 km radius from Amchang Wildlife Sanctuary and to submit compliance report. The said letter was issued on the basis of letter from the Additional Principal Chief Conservator of Forests (C), Ministry of Environment and Forests, Government of India, Regional Office at Shillong.
5. The said letter dated 26.09.2013 is also under assailment in WP(C) No. 6180/2013.
6. In WP(C) No. 6320/2013, impugned notice is dated 21.10.2013, issued by the Divisional Forest Officer, Kamrup (East) Division addressed to the three petitioners for closure of their respective cement units in the interest of Wildlife Conservation as those are situated within 10 km radius from Amchang Wildlife Sanctuary, i.e., within the eco-sensitive zone, which attracts violation of the guidelines of the Supreme Court.
7. Before proceeding further, it may be mentioned that in WP(C) No. 6179/2013, the initial petitioner was Cement Manufacturing Company Limited. However, the name of the petitioner company was changed Page No.# 8/15 from Cement Manufacturing Company Limited to Star Cement Limited. Accordingly, the name of the petitioner has been changed following order dated 18.09.2018, passed in IA (C) No. 300/2018.
8. Basic contention of the petitioners is that petitioners had established Cement Grinding Plants at Chamatapathar by making huge investments. Petitioners obtained necessary clearances prior to commencement of production. Petitioners were served with letters dated 12.09.2013 from the Secretary to the Government of Assam, Environment and Forest Department, stating that it was reported that petitioners were operating Cement Manufacturing Plants within a radius of 10 kms of Amchang Wildlife Sanctuary; which was within the eco-sensitive zone of the said Wildlife Sanctuary. Thus, setting up of the manufacturing units were in clear violation of the guidelines of the Supreme Court. The basis of the aforesaid communication was a letter dated 22.08.2013, issued by the Additional Principal Chief Conservator of Forests (C), Government of India, Regional Office at Shillong.
9. Petitioners in their reply denied that the cement plants were within 10 km radius of Amchang Wildlife Sanctuary. To remove doubt and confusion, a joint survey was suggested. It was also contended that no eco- sensitive zone was defined and notified in and around Amchang Wildlife Sanctuary. Therefore, there was no restriction or prohibition on setting up or operation of industry within the 10 km radius.
10. Without considering the aforesaid response of the petitioners, impugned closure notices were issued.
11. In WP(C) No. 6179/2013, this Court vide order dated 22.10.2013, passed an interim order directing the respondents not to take any step for closure of the industrial unit of the petitioner. On 30.10.2013, a detailed order was passed whereby the case was admitted for hearing and the interim order passed on 22.10.2013 was directed to be continued. Relevant portion of the order dated 30.10.2013 is extracted hereunder:-
"This petition challenges communication dated 26.09.2013 of the Government of Assam in the Environment and Forest Department directing authorities of the Forest Department to take steps for closure of 3 cement units, including the unit of the petitioner, on the ground that those are situated within 10 Km radius of Amchang Wild Life Sanctuary.
Learned Senior Counsel for the petitioner submits that environmental clearance was granted to establish the industrial unit of the petitioner by the Ministry of Environment and Forests, Government of India on 02.01.2009, as it was found that the proposed site of the unit was located at a distance of 10.8 km from the Amchang Wild Life Sanctuary. It was also noted that the proposed cement plant is a small unit of B category having sufficient air pollution control measures and that it is environment friendly. After obtaining consent to establish and consent to operate the industrial unit from the Pollution Control Board of Assam with adequate and effective pollution control Page No.# 9/15 measures in place, the industrial unit of the petitioner has commenced production w.e.f. 31.01.2013, generating revenue and giving employment opportunity to a large number of people. Learned senior counsel also submits that there is no direction from the Hon'ble Supreme Court for closure of any industrial unit situated within a radius of 10 Km of any wildlife sanctuary. On the contrary, he submits that the approach of the Central Empowered Committee is to regulate existing industrial activities rather than closure or prohibition of such activities. He also submits that though Assam Government has submitted proposal before the Central Government for declaring an area within radius of 1 Km from Amchang Wild Life Sanctuary as Eco Sensitive Zone, no such declaration has been notified till date. Further submission is that when the Secretary to the Government of Assam, Environment and Forest had issued show cause notice to the petitioner on 29.08.2013, petitioner submitted its detailed reply and was awaiting consideration of the same. In such circumstances, issuance of the impugned closure notice is wholly illegal, arbitrary and unjustified, he submits.
Both Mr. Bhagawati and Mr. Upadhyay, learned Central Government Counsel and Stat e Government Counsel respectively seek time to obtain instruction.
Mr. Goswami, learned counsel submits that he would file an intervention application on behalf of Sri Akhil Gogoi. He submits that his client has filed application before the National Green Tribunal seeking closure of the industrial unit of the petitioner. Notice has been issued on such application. He has also placed before the Court a decision of the Apex Court dated 09.08.2012 passed in WP(C) No. 50/98 (Bhopal Gas Peedith Mahila Udyog Sangathan and Ors. Vs Union of India an d Ors) to contend that since the National Green Tribunal is considering the matter, this Court should not entertain the writ petition and the matter should be transmitted to the National Green Tribunal.
A perusal of the aforesaid decision particularly paragraph 38 thereof would show that matters covered by Schedule-1 to the National Green Tribunal Act, 2010 are required to be adjudicated by the Green Tribunal.
A perusal of Schedule-I indicates that 7 acts have been enlisted therein including Environment (Protection) Act, 1986 and Air (Prevention and Control of Pollution) Act, 1981.
Whether the present proceeding wherein challenge has been made amongst others to the impugned closure notice would come within the ambit of Schedule-I to the aforesaid Act would require examination of the Court.
This petition raises issues of considerable public importance. On the one hand is the need to protect the ecology and prevent further environmental degradation, while on the other hand there is Page No.# 10/15 the need and necessity of increased industrial activity and economic growth which cannot be ignored, more particularly in a backward state like Assam with a large unemployed young populace with limited employment opportunities. A balance has to be struck.
Thus, having regard to the above and to the submissions made, I am of the view that the matter would require adjudication.
Issue Rule, returnable 6 (six) weeks.
Mr. Upadhyay accepts notice for respondent Nos. 1 to 7 whereas Mr. Bhagawati accepts notice for respondent Nos. 8 and 9.
Extra copies within 3 (three) days. Mr. Goswami is granted liberty to file necessary application to participate in present proceeding.
List on 18.12.2013.
Interim order passed on 22.10.2013 shall continue."
12. Joint Director (S) in the Ministry of Environment and Forests, Government of India, has filed affidavit. Stand taken is that regional office had requested the State Government of Assam on 22.08.2013 to close down the industrial units as those were within 10 km radius of Amchang Wildlife Sanctuary. As per site visit, the distance of the plants were within 5.8 km (approximately) from Amchang Wildlife Sanctuary and 8 km (approximately) from Pobitora Wildlife Sanctuary. It is contended that such request was made for conservation and protection of wildlife, which was in conformity with Supreme Court guidelines.
13. Respondent Nos. 1 and 2, i.e., State of Assam in the Environment and Forest Department, have filed a common affidavit supporting the closure notices; however stating that closure notices were issued in pursuance of Government of India, Ministry of Environment and Forests' letter dated 22.08.2013. It is stated that proposal for notifying eco-sensitive zone for Amchang Wildlife Sanctuary was already forwarded to the Government of India, but eco-sensitive zone has not yet been notified. A reference has been made to order dated 04.12.2006, passed in WP(C) No. 460/2004, where Supreme Court had directed that in case of a project requiring environmental clearance is located within eco-sensitive zone around a Wildlife Sanctuary or National Park or in the absence of any delineation of such a zone if it is within a distance of 10 kms from the boundary, User Agency/Project Proponent is required to obtain recommendations of the Standing Committee of National Board for Wildlife.
14. Petitioner has filed rejoinder affidavit to both the affidavits. Referring to the order of the Supreme Court, it is contended that there is no direction, interim or final, prohibiting mining activities within 10 kms of the boundaries of National Parks or Wildlife Sanctuaries. In fact, by the order dated 04.12.2006, Supreme Page No.# 11/15 Court had only directed Ministry of Environment and Forests, Government of India, to give a final opportunity to the States/Union Territories to respond to the proposal to notify the areas within 10 kms of the boundaries of National Parks or Wildlife Sanctuaries and also to refer to the Standing Committee of the National Board for Wildlife in the cases in which industrial clearance has already been granted in respect of activities within 10 kms radius zone from the boundaries of Wildlife Sanctuaries and National Parks. It is asserted that by the order dated 04.12.2006 Supreme Court had neither fixed any buffer zone within 10 kms nor directed closure of industries. In this connection, reliance has been placed on judgment of the Supreme Court dated 21.04.2014 in WP(C) No. 435 of 2012 (Goa Foundation -Vs- Union of India).
15. Petitioner has also filed an additional affidavit placing on record notification dated 07.05.2017 of the Ministry of Environment, Forests and Climate Change, Government of India, notifying eco-sensitive zone of Amchang Wildlife Sanctuary giving details of the boundaries.
16. Impleaded respondent Nos. 10, 11 and 12 have filed affidavit. Basic contention of the impleaded respondents is that industrial units of the petitioners are in close proximity of Amchang Wildlife Sanctuary. It is stated that as per letter of Forest Department, Government of Assam, distance of M/s Star Cement from Amchang Wildlife Sanctuary is 5750 metres; M/s Raksha Cement is 368 metres; and M/s A G Cement is 128 metres. It is contended that the industries of the petitioners are highly polluting ones exposing the local villagers to health hazards.
17. Dr Saraf and Mr Agarwal have vehemently argued that such closure notices are wholly illegal and are liable to be set aside. There is no Supreme Court order either prohibiting or closing down industrial units located within 10 kms from the boundaries of Wildlife Sanctuaries. Therefore, the very foundation of the closure notices is untenable. Closure notices cannot now be justified on grounds not mentioned in the notices. Reliance has been placed on notification dated 07.05.2017 of the Ministry of Environment, Forests and Climate Change, Government of India, to contend that only new industries and expansion of existing polluting industries in the eco-sensitive zone have been prohibited. Existing industries are not to be touched or closed. Additionally, Mr Agarwal contends that there are a large number of cement plants and other industries in the area in question but only the petitioners have been targeted. Therefore, closure notices are illegal.
18. Mr Mazumdar, learned Additional Advocate General has referred to the affidavit filed by respondent Nos. 1 and 2 and submits that closure notices were issued on the basis of inputs received from the central authorities.
18.1. Mr S C Keyal, learned Assistant Solicitor General of India, supporting the initiative taken by the Additional Principal Chief Conservator of Forests submits that such steps have been taken for protection of Page No.# 12/15 wildlife and environment.
18.2. Mr A C Borbora, learned Senior Counsel appearing for the impleaded respondents has referred to various provisions of the Air Pollution Act, 1981 and Environment Protection Act, 1986 to contend that closure of the industrial units has become necessary to protect the environment and to preserve wildlife. Impugned notices were preceded by ground level inspection which clearly established that the industrial units of the petitioners have been set up in the vicinity of the wildlife sanctuary. He also expresses doubts about environmental clearance obtained by the petitioners and whether all formalities have been complied with. In the course of his submissions, Mr Borbora has placed reliance on various write ups to drive home the point that conservation of biological diversity is a common concern of mankind and is an integral part of the development process. He has also referred to an order of the Supreme Court dated 15.09.2017 in SLP Nos. 2579-2580/2014, expressing concern over reduction of 10 kms eco sensitive zone to 100 metres.
18.3. Mr Rajkhowa has supported the submissions of Mr Borbora.
19. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record.
20. In Goa Foundation -Vs- Union of India; (2014) 6 SCC 590, Supreme Court was considering mining activities in the State of Goa. In that judgment, Supreme Court examined whether it had by orders passed on 04.08.2006 and 04.12.2006, prohibited mining activities around National Parks or Wildlife Sanctuaries. Order dated 04.08.2006 was passed in the case of T N Godavarman Thirumulpad -Vs- Union of India; (2010) 13 SCC 740, whereas order dated 04.12.2006 was passed in Goa Foundation -Vs- Union of India, (2011) 15 SCC 791. Supreme Court read the order dated 04.12.2006 and found that it had not prohibited any mining activity within 10 kms distance from the boundaries of National Parks or Wildlife Sanctuaries. After extracting the relevant portion of the order dated 04.12.2006, it was clarified that Supreme Court had not passed any order or direction, interim or final, prohibiting mining activities within 10 kms of the boundaries of National Parks or Wildlife Sanctuaries. Relevant portion of the clarificatory order passed in Goa Foundation, i.e., (2014) 6 SCC 590 is extracted hereunder:-
"49. We may now examine whether this Court has by the orders passed on 04.08.2006 and 04.12.2006, prohibited mining activities around National Parks or Wildlife Sanctuaries. When we read the order of this Court passed on 04.08.2006 in T.N. Godavarman Thirumulpad v. Union of India & Ors., we find that the Court while considering the question of grant of Temporary Working Permits for mining activities in National Parks, Sanctuaries and forest areas, directed that Temporary Working Permits shall be granted only where the conditions stipulated in the said order are satisfied. Condition Nos. (ii) and (iii) stipulated in the order dated 04.08.2006 are extracted Page No.# 13/15 hereinbelow:
"19........(ii) The mine is not located inside any National Park/Sanctuary notified under Section 18, 26-A or 35 of the Wildlife (Protection) Act, 1972; (iii) The grant of the T.W.P. would not result in any mining activity within the safety zone around such areas referred to in (ii) above, (as an interim measure, one kilometre safety zone shall be maintained" subject to the orders that may be made in I.A. No.1000 regarding Jamua Ramgarh Sanctuary);"
It would, thus, be clear that this Court was of the opinion that grant of Temporary Working Permits should not result in any mining activities within the safety zones around a National Park or Wildlife Sanctuary and as an interim measure, one kilometer safety zone was to be maintained subject to the orders that may be made in I.A. No.1000 in Jamua Ramgarh Sanctuary. This order dated 04.08.2006 has not been varied subsequently nor any orders made in I.A.No. 1000 regarding Jamua Ramgarh Sanctuary saying that Temporary Working Permits can be granted within one kilometer safety zone beyond the boundaries of a National Park or Wildlife Sanctuary. The result is that the order passed by this Court saying that there will be no mining activity within one kilometer safety zone around National Park or Wildlife Sanctuary has to be enforced and there can be no mining activities within this area of one kilometer from the boundaries of National Parks and Wildlife Sanctuaries in the State of Goa.
50. When, however, we read the order dated 4.12.2006 of this Court in Writ Petition (C) No.460 of 2004 (Goa Foundation v. Union of India), we find that the Court has not prohibited any mining activity within 10 kilometer distance from the boundaries of the National Parks or Wildlife Sanctuaries. The relevant portion of the order dated 04.12.2006 is quoted hereinbelow:
"4. The Ministry is directed to give a final opportunity to all States/Union Territories to respond to its letter dated 27th May, 2005. The State of Goa also is permitted to given appropriate proposal in addition to what is said to have already been sent to the Central Government. The Communication sent to the States/Union Territories shall make it clear that if the proposals are not sent even now within a period of four weeks of receipt of the communication from the Ministry, this Court may have to consider passing orders for implementation of the decision that was taken on 21st January, 2002, namely, notification of the areas within 10 km. of the boundaries of the sanctuaries and national parks as eco- sensitive areas with a view to conserve the forest, wildlife and environment and having regard to the precautionary principles. If the State/Union Territories now fail to respond, Page No.# 14/15 they would do so at their own risk and peril.
5. The MoEF would also refer to the Standing Committee of the National Board for Wildlife, under sections 5 (b) and 5 (c) (ii) of the Wild Life (Protection) Act, the cases where environment clearance has already been granted where activities are within 10 km. zone."
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 21st January, 2002 to notify areas within 10 kms. 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 04.12.2006 of this Court, however, the Ministry of Environment and Forest, Government of India, was directed to give a final opportunity to all States/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 kms. 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 kms. of the boundaries of National Parks or Wildlife Sanctuaries."
21. Ministry of Environment, Forests and Climate Change, Government of India issued a notification dated 07.05.2017 in exercise of the powers conferred by Sections 3 (1), (2) (v) and (xiv), and (3) of the Environment (Protection) Act, 1986, read with Rule 5 (3) of the Environment (Protection) Rules, 1986, notifying an area of Amchang Wildlife Sanctuary as the Amchang Wildlife Sanctuary Eco-sensitive Zone. The eco-sensitive zone is spread over an area of 109.99 square kilometers, with an extent varying from 170 metres to 8.1 km with zero eco-sensitive zone extent on the western side due to presence of cantonment area. Regarding zonal master plan for the eco-sensitive zone, it has been clarified that such zonal master plan shall not impose any restriction on the approved existing land use, infrastructure and activities unless so specified in the notification and the zonal master plan shall factor in improvement of all infrastructure and activities to be more efficient and eco-friendly. The notification further provides that on or after publication of the notification in the official gazette no new polluting industries shall be allowed to be set up within the eco-sensitive zone. Clause- 4 of the notification listed the activities to be prohibited or to be regulated within the eco-sensitive zone. Serial No. 2 of the Table deals with setting up of industries including new oil and gas exploration causing pollution. In respect of Serial No. 2, it is provided that no new industries and expansion of existing polluting industries in the eco-sensitive zone shall be permitted. The notification also provides for constitution of a monitoring committee headed by Deputy Commissioner, Kamrup (Metro) for effective monitoring of the eco-sensitive zone.
Page No.# 15/15
22. Therefore, from the above it is evident that there is no order of the Supreme Court prohibiting any mining activity within 10 kms distance from the boundaries of National Parks or Wildlife Sanctuaries. That apart, as per the notification dated 07.05.2017, Central Government has notified eco-sensitive zone in and around Amchang Wildlife Santuary with the clarification that the approved existing land use, infrastructure and activities shall not be interfered with. There is only prohibition in the establishment of new industries and expansion of existing polluting industries in the eco-sensitive zone. Existing industries, i.e., those set up before the notification dated 07.05.2017 has not been touched.
23. This notification dated 07.05.2017 is not under challenge.
24. It is nobody's case that petitioners have set up their industrial units after issuance of the above notification or have undertaken expansion of their existing units. Rather, as discussed above, the notification has only saved the existing industrial units, of course, to be monitored by the Monitoring Committee.
25. Viewed in the above context, impugned closure notices cannot be sustained in law. Grounds on which the impleaded respondents have justified the closure notices are not the grounds on which the closure notices have been issued. The grounds on which the closure notices have been issued are non-existent. Therefore, impugned closure notices are set aside. Stay orders passed earlier are made absolute.
26. Writ petitions are accordingly, disposed of.
JUDGE Comparing Assistant