IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

    WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940

                        WP(C).No. 41812 of 2017



PETITIONER/S:


                ELDO K. MATHEW,
                AGED 52 YEARS,
                KANIYATTIL HOUSE,
                KUMBALERI P.O.,
                POTHUKETTI,SULTAN BATHERY,
                WAYANAD DISTRICT.

                BY ADV. DR.GEORGE ABRAHAM



RESPONDENT/S:
       1      DEPUTY FOREST CONSERVATOR AND WILD LIFE WARDEN,
              DEPARTMENT OF FOREST AND WILD LIFE DEPT.,
              SULTHAN BATHERY, WAYANAD DISTRICT-673592.

      2         DISTRICT GEOLOGIST,
                DEPARTMENT OF MINING AND GEOLOGY,
                MEENANGADI,WAYANAD DISTRICT-673592.

                BY SRI. SANDESH RAJA K., SPECIAL GOVERNMENT PLEADER
                (FORESTS).




     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD             ON
09.10.2018, THE COURT ON 31.10.2018 DELIVERED THE FOLLOWING:
 W.P.(C) No.41812 of 2017                        2



                                          JUDGMENT

This writ petition is filed by the petitioner seeking to quash Ext.P5 order dated 15.12.2017 passed by the 1st respondent, i.e., the Deputy Forest Conservator and Wild Life Warden, Sulthan Bathery, Wayanad District, declining No Objection Certificate (NOC) to the stock yard sought to be opened and maintained by the petitioner for stocking building stones. Material facts for the disposal of the writ petition are as follows:

2. Petitioner is conducting a Crusher Unit in Wayanad District. The raw material i.e., the granite stones were not readily available, and therefore, petitioner has taken necessary permission for transporting Granite stones from the State of Karnataka. According to the petitioner, permissions were granted by the concerned departments for purchase of granites from the State of Karnataka. The stones have to be stocked in a convenient place so that in accordance with the requirements, the same can be transported to the Crusher Unit. Thereupon, petitioner has entered into Ext.P1 agreement with one T.P. Sivanandan on 08.06.2016, and on the basis of the agreement executed, petitioner made an application for storage of building granite stones in W.P.(C) No.41812 of 2017 3 Form-A before the 2nd respondent i.e., the District Geologist, evident from Ext.P2.

3. Thereafter, petitioner requested the 2nd respondent to conduct a site inspection and on the basis of the site inspection, the Geologist found that the western side of the property under lease is abutting the forest land. According to the petitioner, though it is abutting the forest land, there is a well-demarcated compound wall separating the property from the forest land. Thereupon, 2nd respondent has issued Ext.P3 communication dated 02.08.2017, requesting the 1st respondent to clarify whether he has any objection in granting permission for storing the building stones. The 1st respondent, according to the petitioner, thereupon directed the petitioner to file an affidavit undertaking that he is willing to indemnify the forest department against any losses and risk caused due to the storage of stones. Accordingly, petitioner has submitted Ext.P4 affidavit. Anyhow, after keeping the matter for a few months, 1st respondent has issued Ext.P5, declining the permission sought for by the 2nd respondent. The case put forth by the petitioner is that, based on the directions issued by the Ministry of Environment and Forest, the surroundings of the Forest has to be declared W.P.(C) No.41812 of 2017 4 as Eco-Sensitive Zone. However, the 1st respondent admits that the State of Kerala has not so far notified the Eco-Sensitive Zone. Therefore, the directions issued by the Ministry of Environment and Forest has no application in the instant case. Further, the reasoning that as per the judgment of the Supreme Court, every project within the radius of 10 Kms. has to obtain permission from the National Board of Wild Life cannot also be sustained, since the buffer zone of 10 Kms. is not so far identified by the State of Kerala. Therefore, according to the petitioner, Ext.P5 cannot be sustained under law.

4. A statement is filed by the 1st respondent, refuting the claims and demands raised by the petitioner. Among other contentions, it is stated that, on verifying the facts in the field, 2nd respondent came to know that the proposed site for the mineral sales depot is having a boundary sharing with forest and protected area. As per Ext.P3 letter, the 2nd respondent asked for NOC from the 1st respondent, considering the existing laws and guidelines in place and verifying the facts, 1st respondent has not issued NOC. It is pointed out that, as per Sec.2(ix), (x) & (xvi) of the Kerala Minerals (Prevention of Illegal Mining, Storage and W.P.(C) No.41812 of 2017 5 Transportation) Rules, 2015 [hereinafter referred to as 'the Rules, 2015'], the holder of a dealer's licence will be able to store mineral products including minerals in any raw form such as rock aggregates, chips, rock dust etc. Therefore, issuing a dealer's licence to the petitioner will enable him to store the mineral products in the boundary of Muthanga Wildlife Range, which is a part of Wayanad Wildlife Sanctuary. The Wayanad Wildlife Sanctuary is a Protected Area as per Wild Life (Protection) Act, 1972, and storing of such mineral products in the boundary of Wildlife Sanctuary will add to make pollution with respect to sound, air and water in the forest area.

5. It is further submitted that, National Parks, Sanctuaries and Conservation Reserves are notified under the Wildlife Protection Act, 1972, as dedicated areas, rich in, and representing the unique bio-diversity of a place, and such protected areas are considered very important for conservation of bio-diversity and for ensuring the healthy populations of its floral and faunal components, for the present and future generations alike. Other contentions are also raised relying upon the Ecologically Fragile Zones under Sec.3(v) of the Environment (Protection) Act and Rule 5 of the W.P.(C) No.41812 of 2017 6 Environment (Protection) Rules. Based on this, Eco- Sensitive Zones around National Parks and Sanctuaries are created for the purpose of some kind of "Shock Absorber" for the Protected Areas. Therefore, according to the 1st respondent, the stand adopted in Ext.P5 is fully justified.

6. That apart, it is pointed out that, as per Sec.3 of the Environment (Protection) Act, 1986, the Central Government is empowered to take all measures that are necessary for protecting and improving the quality of the environment and to protect and control environmental pollution. In order to attain the said objective, the Central Government is at liberty to restrict areas in which any industries, operations or process or class of industries, operations or process shall not be carried out or shall be carried out subject to certain safeguards under Sec.3(2)(v) of Act, 1986. Based on the said perspective, guidelines were issued for declaring Eco- Sensitive Zones around protected areas, and therefore, storage of building granite stones near to the Wildlife Sanctuary can well be restricted as it falls within the Eco-Sensitive Zone Regulations.

7. That apart, it is stated that, if NOC is provided to operate the stock yard, this will add to more W.P.(C) No.41812 of 2017 7 of machineries such as, heavy vehicles, Tippers, Tractors, JCB etc. without any control in the vicinity of the Wildlife Sanctuary, which will add the pollution by means of noise, dust etc. Considering all these aspects only, the Forest Department has rejected the NOC sought for. The Forest Department is not having any objection in having such activities beyond 10 Kms. from the boundary of the Wildlife Sanctuary.

8. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition, and stating that no Eco-Sensitive Zone is notified by the State Government from the National Parks and Wildlife Sanctuaries, and therefore, the restriction imposed without any Rules enunciated by the Central or State Government, the 1st respondent is not at liberty to decline NOC on the said ground. The judgments rendered by the apex court in 'Goa Foundation v. Union of India and Others' [2014 KHC 3163] and the Division Bench of this Court in 'State of Kerala and Others v. J & J Minerals Private Limited and Others' [2015 (5) KHC 854 : ILR 2016 (1) Ker. 518 : 2016 (2) KLT SN 76] are relied upon to substantiate the said contentions advanced by the petitioner.

9. I have heard learned counsel for the petitioner, learned Special Government Pleader appearing for the 1st respondent and the learned Government Pleader for the 2 nd respondent. Perused the documents on record and the pleadings put forth by the respective parties.

10. The facts delineated above could make it clear that, petitioner has sought permission from the 2nd respondent to open up a stock yard on the basis of Ext.P1 lease deed executed by the petitioner with one T.P. Sivanandan. Since the property was bordering Muthanga Wildlife Zone coming under the Wayanad Wildlife Sanctuary, a communication was sent by the 2 nd respondent to the 1st respondent, evident from Ext.P3 dated 02.08.2017. According to the petitioner, it was on the basis of the directions issued by the 1 st respondent, petitioner has submitted Ext.P4 affidavit, undertaking to indemnify against any losses and risks in the above matter. However, petitioner has not produced any documents before this Court to establish that Ext.P4 was filed on the basis of any directions issued by the 1 st respondent. That apart, it is an admitted fact that the property in question is bordering a reserved forest.

11. The contention advanced by the petitioner is that, so far the buffer zone is not declared in W.P.(C) No.41812 of 2017 9 accordance with the directives issued in the order of the Supreme Court in 'Goa Foundation v. Union of India and Others' [(2011) 15 SCC 791] and therefore, the 1st respondent is not at liberty to decline NOC on the basis of the buffer zone so directed to be formulated by the respective State Governments. It is also pointed out that the said question was considered by a Division Bench of this Court in 'J & J Minerals Private Limited and Others' (supra). However, therein the question considered was in respect of a mineral water plant situated within the Buffer Zone of Silent Valley Park vis-a-vis the environmental clearance, and held that, industry concerned with mineralized water is not required to obtain environmental clearance certificate, and therefore, notification declaring the area around Silent Valley Park as a Buffer Zone cannot be relied on to interdict operation of industry carrying on production of mineral water.

12. Petitioner has relied upon the judgment of the Karnataka High Court in 'Vijayanagar Educational Trust (M/s.) v. Karnataka State Pollution Control Board, Bangalore' [2002 KHC 3482 : AIR 2002 Kar. 123], wherein the question with respect to establishment of a Medical College located on the banks of 'Kumudavathi river', and W.P.(C) No.41812 of 2017 10 the location being sensitive as river joins a reservoir, was under consideration. There, the Karnataka High Court held that the area was not declared sensitive by publication of notification by State or Central Government, as required under Rule 5 of the Environment (Protection) Rules, 1986 read along with the other provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Environment (Protection) Act, 1986. Therefore, according to the petitioner, the 1st respondent is not having the power to declare a Buffer Zone without a notification being issued in accordance with the provisions of the Environmental Laws pointed out above.

13. Learned counsel for the petitioner has also invited my attention to the classification of industries for consent management under the categories Red, Orange & Green, as per Schedule-VIII of Rules 3(2) and 12 of the Rules, 1986 and has produced before me and pointed out that the stone crusher unit comes under the "Orange" category. Therefore, according to the petitioner, Ext.P5 order passed by the 1st respondent suffers from the vice of arbitrariness and illegality, liable to be interfered with by this Court.

14. On the other hand, learned Special Government Pleader pointed out that, going by the pleadings of the petitioner itself, it is evident that the property in question covered by Ext.P1 lease deed is situated just outside the Wayanad Wildlife Sanctuary, and therefore, even without declaration of 10 Kms. Buffer Zone, it is evident that the petitioner will definitely come under the said distance prescribed by the apex court in 'Goa Foundation case' (supra). That apart, it is pointed out that, in the judgment of the Supreme Court in 'Goa Foundation case' (supra), the Supreme Court has considered the question with respect to non-issuance of notification, vis-a-vis disability to create any prohibition for operation of any industry was considered. Learned Special Government Pleader has invited my attention to paragraph 41 of the said judgment, which read thus:

"41. This Court in exercise of its power under Art.32 of the Constitution can direct the State to prohibit mining activities in an area adjacent to a National Park or a Wildlife Sanctuary for the purpose of protecting the flora, fauna and wildlife habitat of the National Park/Wildlife Sanctuary because these constitute part of the natural environment necessary for healthy life of persons living in the State of Goa. The right to life under Art.21 of the Constitution is a guarantee against the State and for enforcing this fundamental right of persons the State, which alone has a right to grant mining leases of the mines located inside the State, can be directed by the Court by an W.P.(C) No.41812 of 2017 12 appropriate writ or direction not to grant mining leases or not to allow mining that will be violative under Art.21 of the Constitution. In Re: Constitution of Park at NOIDA near Okhla Bird Sanctuary, 2010 KHC 4956: 2011 (1) KHC SN 7: 2010 (13) SCALE 50: 2011 (1) SCC 744, a three-Judge Bench (Forest Bench) of this Court has observed:

"........Environment is one of the facets of the right to life guaranteed under Art.21 of the Constitution. Environment is, therefore, a matter directly under the Constitution and if the Court perceives any project or activity as harmful or injurious to the environment, it would feel obliged to step in......"

Thus, the submissions of learned counsel for the lessees that until a notification is issued under t he Environment (Protection) Act, 1986 and the Rules made thereunder prohibiting mining activities in an area outside the boundaries of a National Park / Wildlife Sanctuary, no mining can be prohibited by this Court is misconceived."

15. Therefore, it is contended that, even without declaration of Buffer Zone, if the Forest authorities are of the opinion that the activities that are proposed can cause serious disadvantage to the flora and fauna and the wildlife, the Forest authorities are duty bound to take into consideration such aspects, and if it is found that, it can cause serious repercussions to the wildlife, then, they are at liberty to decline NOC. Learned Special Government Pleader also pointed out that, in accordance with Article 51A(g) of the Constitution of India, a duty is cast upon every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living W.P.(C) No.41812 of 2017 13 creatures. The provisions of Environment (Protection) Act, as well as the Rules, 1986 are also relied upon to contend and canvass that the stock yard proposed by the petitioner can cause serious havoc to the wildlife of Muthanga Wildlife Zone, a part of Wayanad Wild Life Sanctuary.

16. I have considered the rival submissions made across the Bar and perused the pleadings and documents on record.

17. The contention made above would make it clear that, there is no dispute with respect to the property covered by Ext.P1, having a boundary with the Wayanad Wildlife Sanctuary, i.e., the Muthanga Wildlife Zone. The Wayanad Wildlife Sanctuary is well known for its bio- diversity, flora and fauna and wildlife existence, in abundance. Petitioner is not having a case that the property covered under Ext.P1 is outside the 10 Kms. Buffer Zone, since it is an admitted fact that the property has a boundary with the Wildlife Sanctuary. Petitioner is not entitled even to contend that since the 10 Kms. Buffer Zone is not identified, the 1 st respondent cannot deny NOC to the petitioner. The distance of 10 Kms. outside the various area will come into play only when there is a dispute as to the existence of the W.P.(C) No.41812 of 2017 14 property away from the wildlife border. Here, in this case, no such case is projected by the petitioner. It is also an admitted fact that the stocking yard is for the purpose of stocking building stones brought from Karnataka and remove the same from the yard to the Crusher site, as and when it is required. Therefore, one can clearly visualise the sound and dust that can emanate from the continuous activities that are taking place, which will disturb the wild life and the dust emanates from the said activity will pollute the air and water also, which will materially affect the existence of the flora and fauna as well as the water resources available in the forest area, causing serious damage and irreparable injuries to the wildlife and bio-diversity as such.

18. The importance of Buffer Zone that is put forth by the apex court in 'Goa Foundation case' (supra), is with the intention of protecting the bio-diversity, flora and fauna and the wildlife. Any serious disturbance emanating from an industrial activity can disturb the wildlife and there is every likelihood that animals may move out from the said area, encroaching into the other regions so as to affect the normal human life and activities also. The animals and the environment are W.P.(C) No.41812 of 2017 15 entitled to be protected, within their territorial region, which is an obligation cast upon the State under Article 51A(g) of the Constitution of India. So much so is the obligation under Article 48A encompassing a duty on the State to make endeavour to protect and improve the environment and safeguard forests and wild life of the country. Therefore, irrespective of any notification declaring any eco-sensitive zone, the State is destined to protect the environment and the wild life. Moreover, the citizens are entitled to enjoy the nature in its purest form and such enjoyment is integral part of the fundamental rights guaranteed under Article 21 of the Constitution of India. Therefore, reasonable restrictions imposed on the civil rights of an individual, to protect larger interest of the community guaranteed under Part III of the Constitution of India cannot be said totally irrelevant, arbitrary, illegal or unfair.

19. This cluster of factual and legal circumstances lead me to a safe conclusion that, if permission is granted to undertake the activity, as is sought for by the petitioner, it will materially affect the ecological balance available in the area, and also interferes with the natural environment as it exists today. Added to W.P.(C) No.41812 of 2017 16 these aspects, no documents are produced to sustain the submission that petitioner is entitled to transport the product from Karnataka State. Therefore, the reasons assigned in Ext.P5 cannot be said to be illegal and arbitrary, justifying interference of this Court under Article 226 of the Constitution of India.

Resultantly, the writ petition fails, accordingly it is dismissed.

Sd/-

SHAJI P.CHALY JUDGE W.P.(C) No.41812 of 2017 17 APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1: TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER ALONG WITH SRI. ANILKUMAR ON ONE SIDE AND SRI.T.P.SIVANANDAN ON THE OTHER SIDE.

EXHIBIT P2: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIOENR BEFORE THE SECOND RESPONDENT. EXHIBIT P3: TRUE COPY OF THE COMMUNICATION DATED 2.8.2017.

EXHIBIT P4: TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER DATED 20.10.2017.

EXHIBIT P5: TRUE COPY OF THE COMMUNICATION ISSUED BY THE IST RESPONDENT DATED 15.12.2017.

RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE St/-