Binay Kumar Dalei vs The State Of Odisha on 2 March, 2022


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Supreme Court of India

Binay Kumar Dalei vs The State Of Odisha on 2 March, 2022

Author: L. Nageswara Rao

Bench: L. Nageswara Rao, B.R. Gavai

                                           Non-Reportable



        IN THE SUPREME COURT OF INDIA
         CIVIL APPELLATE JURISDICTION


        Civil Appeal Nos.1627-1628 of 2022
             (@ Diary No.19961 of 2020)


Binay Kumar Dalei & Ors.
                                      .... Appellant(s)

                         Versus

State of Odisha & Ors.
                                      …. Respondent(s)

                   JUDGMENT

L. NAGESWARA RAO, J.

1. Rural Organisation for Social Empowerment –

Respondent No.8 herein, filed Original Application No. 02

of 2019 before the National Green Tribunal, Principal

Bench, New Delhi (hereinafter, ‘the NGT’) for a direction to

the opposite parties therein to cancel the stone quarry

leases granted pursuant to an advertisement dated

17.08.2017. Respondent No.8 also sought for a direction

that no further lease shall be granted in the Kuldiha

Wildlife Sanctuary and the eco-sensitive zone lined to it,

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as were notified in the notification dated 09.08.2017. It

was further prayed that an enquiry should be conducted

into the illegal and unlawful advertisement for long term

leases in the wildlife sanctuary. During the pendency of

the Original Application, the NGT vide orders dated

22.01.2019 and 12.03.2019 called for a report from the

Principal Chief Conservator of Forests, Head of Forest

Force (hereinafter ‘PCCF (HoFF)’) after conducting an

inspection of the Eco-Sensitive Zone surrounding the

Kuldiha Wildlife Sanctuary. Based on the report submitted

by the PCCF (HoFF), the NGT by an order dated

16.10.2019 directed the State Government to take steps

for bringing the entire corridor within the ambit of eco-

sensitive zone and prohibit ingress into the eco-sensitive

zone. Pursuant to this order of the NGT, Tehsildar Khaira

directed the stoppage of operations of stone quarries in

the Sarisua Hills. Aggrieved thereby, the Appellants, who

were the lease holders of these stone quarries, filed an

application for impleadment which was rejected by the

NGT on 04.12.2019. On 18.02.2020, the NGT disposed of

the Original Application by directing that no mining

activity shall be permitted within and in the vicinity of

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Simplipal – Hadagarh – Kuldiha – Simplipal elephant

corridor. The Tribunal ordered completion of the process

under Section 36 of the Wildlife (Protection) Act, 1972

(hereinafter, ‘the Act’) for declaration of conservation

reserve in respect of the elephant corridor within a period

of three months. The Appellants have filed this appeal

assailing the correctness of the orders passed by the NGT.

2. By a notification dated 29.01.2001 issued by the

Government of Odisha, Forest and Environment

Department, area comprising of portions of Mayurbhanj,

Balasore, Bhadrak and Keonjhar was declared as an

elephant reserve – Mayubhanj (Similipal-Kuldiha-

Hadgarh) Elephant Reserve, under the Central Scheme

“Project Elephant”. The total area of the elephant

reserve was shown as 3213.81 sq. kms and the core area

was 845 sq. kms of the existing Similipal Sanctuary. With

respect to the taking up of non-forestry activities in

wildlife habitats, the Government of India, Ministry of

Environment and Forests (Wildlife Division) issued a

guideline document on 15.02.2011. It was mentioned

in the said document that environmental clearances for

any project that falls within 10 kms boundary of the

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National Parks and Sanctuaries will be subject to the

recommendations of the Standing Committee of National

Board for Wildlife (hereinafter ‘NBWL’). The user

agency/project proponent has to seek prior permission

from the Standing Committee of the NBWL before

seeking environmental clearance in case the concerned

project is located within the eco-sensitive zone or within

10 kms in absence of delineation of such a zone from the

boundaries of National Parks, Wildlife Sanctuaries or is

an Elephant Reserve/Tiger Reserve and/ or important

corridors of wildlife movement.

3. In order to operate certain stone quarries near

Kuldiha Wildlife Sanctuary, the State of Odisha submitted

a proposal to the Standing Committee of NBWL. In its

40th meeting held on 03.01.2017, the Standing

Committee of NBWL considered the proposal of the State

of Odisha involving operation of 97 Nos. of stone

quarries at a distance of 2 kms from the boundary of

Kuldiha Wildlife Sanctuary. After due deliberations, the

Standing Committee agreed to recommend the proposal

subject to the implementation of a Comprehensive

Wildlife Management Plan in the region, for mitigation of

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impact which would be caused by operation of all

quarries and transportation of materials.

4. Subsequently, a Comprehensive Wildlife

Management Plan for mitigation of impact which would

be caused by operation of stone quarries in Khaira Tehsil

near Kuldiha Wildlife Sanctuary, Balasore was prepared

by the Divisional Forest Officer, Wildlife Division,

Balasore and was approved by the Government of

Odisha. It was noted in the said plan that 97 stone

quarries are located immediately south to the Hadgarh

Kuldiha Elephant Corridor which is a part of the

traditional Similipal – Hadgarh – Kuldiha Elephant

Corridor. It was also stated that the corridor between

Hadgarh and Kuldiha is used round the year for

movement of elephant, herbivores and cats. On-site and

off-site environmental affects that can be generated by

quarrying through blasting, excavation, crushing,

screening, stockpiling and transporting of aggregate

were also recognised in the plan. It was mentioned that

the environmental effects of quarrying, primarily

includes the disturbance of land and vegetation, dust,

vibration, noise, traffic, visual effects, impact on cultural

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and historical values, the discharge of contaminants into

the air, water and land. Methods to manage noise

issues, dust and air quality issues, traffic issues, and

water quality issues have also been suggested in the

Comprehensive Wildlife Management Plan.

5. On 09.08.2017, a notification was issued by the

Ministry of Environment and Climate Change,

Government of India in exercise of powers conferred by

sub-section (1) and clauses (v) and (xiv) of Sub-Sections

(2) and (3) of Section 3 of the Act read with Sub-Rule 3 of

Rule 5 of the Environment (Protection) Rules, 1986. By

the said notification, the area with an extent varying

from zero (along with urban areas/NAC areas adjoining

the boundary on Eastern side), 500 metres on South-

Eastern side, 7 kms on Western Side up to Keonjhar

District to 2 kms around Kuldiha Wildlife Sanctuary in the

State of Odisha was notified as Kuldiha Wildlife

Sanctuary eco-sensitive zone. The notification clarified

that the Eco-Sensitive Zone of Kuldiha Wildlife Sanctuary

included the corridor linking Kuldiha wildlife Sanctuary of

Balasore district and Hadgarh Wildlife Sanctuary of

Keonjhar district. According to the notification, all

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activities in the eco-sensitive zone were to be governed

by the provisions of the Act and the Rules made

thereunder.

6. It was only after this notification, that the Tehsildar

Khaira had issued an advertisement on 17.08.2017,

inviting applications from interested persons for long-

term lease of Sarisua Kapilajhari Bandhanata – 97 Sairat

Source (Minor Minerals) for a period of five years from

the year 2017-18 to 2021-22. Environmental clearances

were granted by the District Environmental Impact

Assessment Authority (DEIAA) for the stone quarries on

recommendation of the DEAC, pursuant to which

quarrying operations were started by the Appellants and

other lease holders in March, 2018.

7. In light of the controversy that arose before the

NGT, it is necessary to quote certain relevant portions of

the report submitted by the PCCF (HoFF), Odisha

pursuant to the orders by the NGT. The relevant portion

reads as under: –

“Ill. Frequent movement of elephants is reported
from Kuldiha Wildlife Sanctuary on the foothills of
Sukhuapata hill of Mayurbhanj district up to Kala
reservoir of Kaptipada Range of Baripade. The

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corridor between Hadgarh & Kuldiha is used round
the year by the elephants for its movement. There
is an evident threat to the habitat and the Elephant
corridor due to quarrying because of its onsite and
ofsite environmental effects. The fact of existence
of these quarries around the traditional Similipal

-Hadgarh – Kuldiha – Similipal elephant corridor was
place by the State CWLW before the 40 th Meeting of
SC-NBWL which, recommended the proposal for
operation of 97 stone quarries with certain pre-

conditions as detailed earlier at Para No. 1. Though,
these 97 quarries form a cluster as requisite no
environment management plan has been
submitted by the Revenue Authorities yet.

IV. Accordingly, as per the recommendation of the
40th meeting of SC-NBWL, a comprehensive:
Wildlife Management Plan (CWLMP) to mitigate the
impact to be caused by, operation of all quarries &
transportation of- materials got approved by the
Government of Odisha, F & E Department during
July 2017 with financial outlay of Rs. 677.13 lakh
to be spent over a period of I0 years. Part of the
proposal for taking of Bald hill plantation over 200
ha. at an estimated cost of Rs. 408:40 lakhs was
proposed to be addressed ‘through the
CAMPA/other State Funding and rest funds of
677.13 lakh wa1 to be allocated from Environment
cost to be released from all quarries rationally in
proportion to the quantity of production. However,
it is observed that the payment of Environment

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Cost towards implementation of the CWLMP is yet
to be made by the Revenue authorities. ”

8. On the basis of the above observations, PCCF

(HoFF) gave the following recommendations: –

“A. Those quarries those that have made ingress
into ESZ boundary must be penalized as per extent
of ingress & destruction particulars. In this regard,
Mining Department and Revenue Department
jointly in each of these observed cases may assess
damage cost /restoration cost, responsible quarries
for the damage and realization of penalty amount
etc. If needed, necessary services of expert
organization like ICFRE, Dehradun /TERI, New Delhi
may be taken in this regard. Till the completion of
the exercise, the operation of these quarries may
be considered to be stoped.

B. District Collector-cum-Chairman, DEIAA, Balasore
may allow further quarry operation in the area only
after obtaining specific clearance by SEIAA, Odisha
as per order dated 11.12.2018 of the Hon’ble NGT
in the Executive Application No. 55/2018 in O.A No.
520/2016, Vikrant Tongad Versus Union of India,
directing that the notification dated 15.01.2016 of
MoEFF& CC will stand suspended till a fresh
notification issued by the MoEFF& CC, New Delhi.

C. There is every likelihood in future of further
higher ingress of quarries in the Eco Sensitive
Zone, considering the close vicinity of these
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quarries to the ESZ. In order to avoid any further
future ingress within the limit of ESZ, DGPS
(Differential Global Positioning System) mapping
should be immediately taken up for all the 97
quarries with permanent pillar posting. The vector
polygon of the quarries may be shared with all
concerned departments. The intactness of all the
ESZ pillars for demarcation of ESZ must be ensured
by the Revenue Department as some of the pillars
during field visit were found missing. The
Environment Management Plan for cluster of the
quarries is yet to be finalized with ensuring its strict
adherence. Further, implementation of
Comprehensive Wildlife Management Plan by
immediate deposit of Environment Cost by the
District Administration needs to be ensured. A
“Monitoring Committee” as recommended by NBWL
& NTCA may be constituted immediately at the
district level to look into the wildlife & environment
issues on bi-monthly basis.

D. As quarry operation is being carried out adjacent
to the identified traditional Similipal – Hadgarh –
Kuldiha – Similipal Elephant Corridor, process
should be initiated with the pending proposal for
declaration of the conservation Reserve in that
area U/S- 36 of the Wildlife (Protection} Act 1972
by the Principal Chief conservator of Forests
(Wildlife) & CWLW, Odisha in order to avoid further
destruction in that corridor apart from other site
specific restoration plan as deemed appropriate to

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mitigate the impact caused due to rampant quarry
operation and maintain ecological balance.”

9. Based on this report of the PCCF (HoFF) and being

concerned with the stone quarries operating adjacent to

the elephant corridor, the NGT by an order dated

16.10.2019, directed the State Government to consider

bringing the entire elephant corridor within the ambit of

eco-sensitive zone. A further direction was given by the

NGT for implementation of the recommendations made

by the PCFF (HoFF), Odisha. Out of the 97 stone

quarries, 11 quarries were found to have ingressed into

the eco-sensitive zone. By its judgment dated

18.02.2020, the NGT directed the said 11 quarries to

confine their activities outside the eco-sensitive zone.

The process under Section 36 of the Act for declaration

of the traditional elephant corridor as a conservation

reserve was directed to be completed within three

months. The Original Applications were disposed of with

a direction that no mining activity shall be permitted

within and in the vicinity of Similipal – Hadgarh – Kuldiha –

Similipal Elephant Corridor. The Appellants who are the

lease holders and whose applications for impleadment

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were rejected by the NGT are aggrieved by the direction

of stoppage of mining activity in the vicinity of the

elephant corridor.

10. We have heard Mr. Ramesh P. Bhatt, learned Senior

Counsel for the Appellants, Ms. Aishwarya Bhati, learned

Additional Solicitor General of India appearing for MOEF,

Government of India, Mr. Ashok K. Parija, learned

Advocate General for the State of Odisha, Mr. Ranjit

Kumar and Mr. Manoj Swarup learned Senior Counsel

appearing for Respondent No.8. The main contention of

the Appellants is that their stone quarries are not

amongst the 11 quarries which are said to have

ingressed into the eco-sensitive zone. They contended

that their stone quarries are not within the eco-sensitive

zone and admittedly the stone quarries are situated on

the other side of the hillock. Therefore, there is no

reason as to why the operation of their quarries should

be stopped. The Appellants further contended that the

NGT refused to hear the Appellants before passing an

order which is detrimental to their interests and in

violation of the principles of natural justice.

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11. Mr. Ashok K. Parija, learned Advocate General for

the State of Odisha referred to the guidelines that were

issued by the Ministry of Environment and Forests

(Wildlife Division) for taking up non-forestry activities in

wildlife habitats and submitted that the Standing

Committee of the NBWL approved the proposal of

quarrying operations in its 40th meeting. He relied on the

maps to show that the quarries of the Appellants were

well outside the eco-sensitive zone and submitted that

there is constant monitoring of any ingress by the

lessees into the eco-sensitive zone. He argued that

there is a contradiction in the impugned order passed by

the Tribunal. He submitted that vide the said order, 11

quarries which have ingressed into the eco-sensitive

zone were directed to confine their activities outside the

eco-sensitive zone and at the same time, there was also

a direction that no mining activity would take place in

the vicinity of the elephant corridor. The learned

Advocate General agreed that quarrying operations

should be permitted around the eco-sensitive zone,

subject to the implementation of the Comprehensive

Wildlife Management Plan. During the pendency of the

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dispute, an affidavit was filed on behalf of the State of

Odisha in which it has been stated that the process for

declaration of Similipal – Hadgarh – Kuldiha – Similipal

traditional Elephant Corridor as conservation reserve is

under active consideration and a proposal for declaration

of 2781.485 hectares of land as conservation reserve

has already been placed before the Government on

03.02.2022, after completion of all the ground work and

statutory requirements.

12. Mr. Manoj Swarup, learned Senior Counsel

appearing for Respondent No.8 submitted that the

Comprehensive Wildlife Management Plan might be in

place, but it requires to be implemented before

commencement of the mining operations. He stated

that several measures have been suggested in the

Comprehensive Wildlife Management Plan for mitigation

of the impact caused by the quarrying, which have not

been undertaken till date. He argued that the Standing

Committee of NBWL approved the proposal for quarrying

operations, subject to the implementation of

Comprehensive Wildlife Management Plan. According to

Mr. Swarup, no mining operations can take place without

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prior implementation of the Plan. Mr. Ranjit Kumar,

learned Senior Counsel supplemented the arguments

made by Mr. Manoj Swarup. He referred to Section 36A

of the Act and argued that it is incumbent on the State

Government to declare areas adjoining to the National

Parks and Sanctuaries and those areas which link one

protected area with another as a conservation reserve

for protecting landscapes, seascapes, flora and fauna

and their habitat. He placed reliance on Section 36A(2),

according to which the provisions of Sub-Section (2) of

Section 18, Sub-sections (2), (3) and (4) of Section 27,

Section 30, 32 and clauses (b) and (c) of Section 33

shall, as far as may be, apply in relation to a

conservation reserve as they apply relation to a

sanctuary. He relied upon judgments of this Court in

Hospitality Association of Mudumalai v. In Defence

of Environment and Animals & Ors.1 and Goa

Foundation v. Union of India2 which dealt with the

importance of preserving elephant corridors and wildlife

sanctuaries.

1 (2020) 10 SCC 589
2 (2014) 6 SCC 590
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13. Ms. Aishwarya Bhati, learned Additional Solicitor

General appearing of behalf Respondent No. 2 – Ministry

of Environment, Forest & Climate Change (MoEF) drew

the attention of this court to the fact that the impugned

order inadvertently mentions Section 36, however the

relevant provision for declaration of the elephant corridor

as a conservation reserve would be Section 36A of the

Act. She submitted that the MoEF has no objection to the

operation of stone quarries outside the eco-sensitive

zone if the requirement of Section 36A and the

conditions in Comprehensive Wildlife Management Plan

are complied with.

14. The point that arises for consideration of this Court

in this appeal is in a narrow compass. The Appellants

have filed this appeal aggrieved by that part of the order

issued by the NGT by which mining activity in the vicinity

of Similipal – Hadgarh – Kuldiha – Similipal Elephant

Corridor has been ordered to be stopped. According to

the Appellants and the State Government there is no

justification for stopping mining activity in the area

which does not fall within the eco-sensitive zone.

Whereas, the learned Senior Counsel for Respondent

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No.8 contended that no mining activity can be permitted

even in the vicinity of an eco-sensitive zone unless the

Comprehensive Wildlife Management Plan has been

implemented and Section 36A of the Act has been

complied with. The objection on behalf of Respondent

No. 8 is only on the ground that the comprehensive

wildlife management plan has not been implemented

and that Section 36A of the Act has not been complied

with. The learned Advocate General for the State of

Odisha submitted that the mining operations will be

permitted only after implementation of the

Comprehensive Wildlife Management Plan. He stated

that compliance of Section 36A of the Act for declaration

of the elephant corridor as conservation reserve is in the

advanced stage of consideration by the State

Government.

15. The dispute can be resolved by giving a direction to

the State Government to implement the Comprehensive

Wildlife Management Plan and complete the process of

declaration of the traditional elephant corridor as

conservation reserve as provided in Section 36A of the

Act.

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16. Therefore, the State of Odisha is directed to

implement the Comprehensive Wildlife Management Plan

as suggested by the Standing Committee of NBWL

before permitting any mining activity in the eco-sensitive

zone. The State is also directed to complete the process

of declaration of the traditional elephant corridor as

conservation reserve as per Section 36A of the Act

expeditiously. The mining operations of 97 quarries shall

be permitted only thereafter.

17. Mr. Bhatt and Mr. Dash, learned Senior Counsel

requested this Court to direct the Government to

compensate for the losses incurred for period during

which they were not permitted to carry out mining

operations despite holding a valid lease in their favor. We

are afraid that we cannot issue such directions. However,

the Appellants are at liberty to approach the Government

for redressal of their grievances.

18. With the above directions, the Civil Appeals are

disposed of.

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Civil Appeal No. 1529 of 2022

19. This appeal arises out of the same order dated

18.02.2020 passed by the NGT in O.A. No. 02/2019(EZ).

This appeal is disposed of in terms of the judgment in

Civil Appeal Nos. 1627-1628 of 2022.

……………………………………..J.

[ L. NAGESWARA RAO ]

……………………………….J.

[ B.R. GAVAI ]

New Delhi,
March 02, 2022.

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