Hospitality Association Of … vs In Defendent Of Environment And … on 14 October, 2020
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Supreme Court of India
Hospitality Association Of … vs In Defendent Of Environment And … on 14 October, 2020
Author: S. Abdul Nazeer
Bench: S. Abdul Nazeer, Sanjiv Khanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.3438-3439 OF 2020
(Arising out of S.L.P. (C) Nos.17313-17314 of 2011)
HOSPITALITY ASSOCIATION OF MUDUMALAI ….. APPELLANT(S)
VERSUS
IN DEFENCE OF ENVIRONMENT AND
ANIMALS AND ORS. ETC. …..RESPONDENT(S)
WITH
Civil Appeal No.3437 of 2020
SLP (C) No. 20154 of 2011
Civil Appeal No.3440 of 2020
SLP (C) No. 21460 of 2011
Civil Appeal Nos.3442-3443 of 2020
SLP (C) Nos. 21463-21464 of 2011
Civil Appeal No.3444 of 2020
SLP (C) No. 21461 of 2011
Civil Appeal No.3445 of 2020
SLP (C) No. 16668 of 2011
Civil Appeal No.3447 of 2020
SLP (C) No. 17160 of 2011
Signature Not Verified
Digitally signed by
Civil Appeal Nos.3448-3449 of 2020
Rachna
Date: 2020.10.14
17:55:29 IST
Reason:
SLP (C) Nos. 17155-17156 of 2011
1
Civil Appeal Nos.3450-51 of 2020
SLP (C) Nos. 17150-17151 of 2011
Civil Appeal No.3446 of 2020
SLP (C) No. 21480 of 2011
Civil Appeal No.3452 of 2020
SLP (C) No. 21467 of 2011
Civil Appeal No.3453 of 2020
SLP (C) No. 21472 of 2011
Civil Appeal No.3454 of 2020
SLP (C) No. 21477 of 2011
Civil Appeal No.3455 of 2020
SLP (C) No. 21478 of 2011
Civil Appeal No.3456 of 2020
SLP (C) No. 21470 of 2011
Civil Appeal No.3457 of 2020
SLP (C) No. 21468 of 2011
Civil Appeal No.3458 of 2020
SLP (C) No. 21469 of 2011
Civil Appeal No.3459 of 2020
SLP (C) No. 24826 of 2011
Civil Appeal No.3460 of 2020
SLP (C) No. 19112 of 2011
Civil Appeal No.3461 of 2020
SLP (C) No. 25010 of 2011
2
Civil Appeal No.3462 of 2020
SLP (C) No. 31581 of 2011
Civil Appeal No.3463 of 2020
SLP (C) No. 35559 of 2013
Civil Appeal No.3464 of 2020
SLP (C) No. 30535 of 2011
Civil Appeal No.3465 of 2020
SLP (C) No. 35644 of 2013
Civil Appeal No.3466 of 2020
SLP (C) No. 30536 of 2011
Civil Appeal No.3467 of 2020
SLP (C) No. 9305 of 2012
Civil Appeal No.3468 of 2020
SLP (C) No(s).12388 of 2020
(arising out of SLP(C)….CC No. 5278 of 2012)
Civil Appeal No.3469 of 2020
SLP (C) No(s).12389 of 2020
(arising out of SLP (C)…CC No. 5312 of 2012)
Civil Appeal No.3476 of 2020
SLP (C) No. 5176 of 2012
Civil Appeal No.3477 of 2020
SLP (C) No. 2666 of 2012
Civil Appeal No.3470 of 2020
SLP (C) No. 7619 of 2012
Civil Appeal No.3471-3472 of 2020
SLP (C) No(s).21390-21391 of 2020
(arising out of SLP(C)….CC No.5161 of 2012)
3
Civil Appeal No.3473 of 2020
SLP (C) No. 37332 of 2013
Civil Appeal Nos.3475 of 2020
SLP (C) No(s).12393 of 2020
(arising out of SLP(C)….Diary No. 16319 of 2017)
Civil Appeal No.3474 of 2020
SLP (C) No(s).12392 of 2020
(arising out of SLP(C)…. CC No.9201 of 2012)
JUDGMENT
S. ABDUL NAZEER, J.
1. Leave granted.
2. The appellants in these appeals have assailed the final
judgment and order dated 07.04.2011 of the High Court of
Judicature at Madras, passed in Writ Petition (PIL) No. 10098 of
2008 along with several other writ petitions including Review
Application No. 131 of 2010 and Writ Petition No. 23939 of 2010
filed by the Hospitality Association of Mudumalai. The High Court
by the impugned judgment has upheld the validity of the Tamil
Nadu Government Notification G.O.(Ms.) No. 125, dated
4
31.08.2010 which had notified an ‘Elephant Corridor’ in the Sigur
Plateau of Nilgiris District and has further directed resort owners
and other private land owners to vacate and hand over the vacant
possession of the lands falling within the notified elephant
corridor to the District Collector, Nilgiris within three months from
the date of the judgment.
3. The appellant in Civil Appeal Nos.3438-3439 of 2020 (arising
out of SLP (C) Nos.17313-17314 of 2011), is the Hospitality
Association of Mudumalai, registered under the Tamil Nadu
Societies Registration Act, 1975, situated in the Nilgiris District of
Tamil Nadu. The members of this association have established
resorts/guest houses in the Nilgiris forest area. The other
appellants are either the owners of the resorts/guest houses or
the owners of the lands in and around the Nilgiris forest area.
Some of them have built dwelling houses on their lands, some of
them have encroached upon government lands and put up
constructions thereon and some of them are cultivating the said
lands.
4. Before referring to the proceedings before the High Court
and this Court, as well as the submissions made by the learned
5
counsel for the parties, it would be helpful to refer to the
background facts and the prevailing ecological context in which
the impugned G.O. was notified.
A. BACKGROUND
5. Despite being a figure of traditional cultural reverence, today
the elephant species is severally threatened in India. The crux of
the problem is one that affects all wildlife in the country: land. As
India’s human population has grown exponentially in the past
several decades, so has its demand for resources. At its essence,
that demand boils down to the requirement for more land – for
agriculture to grow more food and for construction of roads,
dams, mines, railways and housing. This demand for land has led
to the degradation and fragmentation of the country’s forest
cover. The elephant, being a large agrarian animal, may weigh up
to 4-5 tons and requires about 200-300 kgs. of fodder comprising
of various plant species daily. It, therefore, needs large areas,
which it uses by rotation, so that it may not overgraze an area
and in the process destruct it altogether. This allows the natural
vegetation of the habitats a chance to re-generate.
6
6. However, the ever-growing need for land, infrastructure and
energy requirements of our large population have slowly
fragmented the elephant’s natural spaces which are now
surrounded by human habitation, agriculture, mining, roads and
railways. The more forest habitat is fragmented, the farther an
elephant herd has to roam in search of food and water.
Increasingly, elephants have to move farther and farther afield,
even from one forest area to another, often through small patches
of forests called corridors. As forest lands continue to be lost,
these relatively narrow and linear patches of vegetation form vital
natural habitat linkages between larger forest patches. They allow
elephants to move between secure habitats freely, without being
disturbed by humans. Further, elephants are genetically
programmed by nature to never inbreed within their birth family
and thus need to move around between gene pools to reproduce.
These corridors aid this process by helping different elephant
populations to intermingle, which is essential for retaining the
vigour of the species and ensuring its long-term survival. By
7
identifying and nurturing such corridors, deadly confrontations
between humans and elephants can be avoided, in addition to
safeguarding the welfare of the wildlife. Unfortunately, in most
areas, the existing corridors are repeatedly being destroyed which
will block migration routes of the elephants and would result in
the fragmentation of the habitats as well as increased human-
elephant conflict.
7. To prevent such conflict and protect elephants, the
Government of India through the then Ministry of Environment
and Forests launched a centrally sponsored scheme ‘Project
Elephant’ to provide financial and technical support to the wildlife
management efforts by States for their free ranging populations
of wild elephants. The ‘Project Elephant’ document was released
in the year 1993. It admits that elephants are facing serious
threat due to large scale destruction and fragmentation of their
habitat due to increase in human and cattle populations, felling of
natural forest and replacing them with single species, commercial
plantation, excessive grazing, forest fires and shifting cultivation,
destruction or capture for crop raiding, human killings,
8
encroachments and man-made barriers/destructions such as
roads, railway lines, dams, canals, tea gardens, agriculture and
industry etc. The ‘Project Elephant’ was to provide financial and
technical support to major elephant bearing States in the country.
The project aims to ensure long term survival of viable
conservation reliant population of elephants in their natural
habitats by protecting the elephants, their habitats and migration
corridors. Other goals of the ‘Project Elephant’ are addressing
issues of human-animal conflict and providing for welfare of
captive elephants. The main activities under this project include
the following:
1. Ecological restoration of existing natural habitats and
migratory routes of elephants;
2. Development of scientific management planning for
conservation of elephant habitats and viable elephant
populations in India;
3. Promotion of measures for mitigation of human-elephant
conflict in crucial habitats;
9
4. Moderating impact of human and domestic livestock
activities in crucial elephant habitats;
5. Strengthening of measures for protection of wild
elephants from poachers and unnatural causes of death;
6. Research on elephant management related issues;
7. Public conservation education and awareness
programmes about elephants;
8. Eco-development of elephant habitats; and
9. Provision of improved veterinary care for elephants.
8. Specifically in the context of elephant preservation in Tamil
Nadu, on 14.06.2006, the State’s Principal Chief Conservator of
Forests and Chief Wildlife Warden (‘PCCF’) had requested that the
private/patta lands forming the traditional movement corridors of
elephants between the Mudumalai Wildlife Sanctuary and
National Park to other parts and also between Eastern and
Western Ghats be brought under the control of the Forest
Department, by acquiring the lands after paying compensation to
the owners. The PCCF had highlighted the use of these patches of
private forest land, which serve as vital migratory routes, for non-
10
forestry use as a serious threat to free movement of elephants.
The PCCF addressed another letter dated 6.11.2006 to the State
Government, proposing the Survey Nos. of the patta land to be
acquired for the purpose of the elephant corridors. Similarly, the
Ministry of Environment and Forests, Government of India, by its
letter dated 11.08.2006 to the State Government of Tamil Nadu
had noted that 88 elephant corridors had been identified by the
Wildlife Trust of India’s book titled “Right of Passage – Elephant
Corridors of India” and requested that necessary action be taken
for notification and protection of the elephant corridors situated in
Tamil Nadu, as identified in the aforesaid publication.
9. Pursuant to this communication, the Government of Tamil
Nadu issued a Government Order dated 21.08.2007, appointing
an Exploratory Committee with Collector of Nilgiris as the
Chairman and four other members consisting of District Forest
Officer, Nilgiris North Division, Wildlife Warden, Ooty, Officer of
the Revenue Department, Ooty and the concerned Tehsildar. This
Committee was constituted for exploring the possibility of
acquiring the patta lands with the willingness of farmers who
could spare their lands for acquisition for elephant corridors.
11
B. Proceedings before the Madras High Court
10. During this period, an organization called ‘In Defence of
Environment and Animals’, represented by its Managing Trustee
‘Elephant’ G. Rajendran, filed Writ Petition No. 10098 of 2008
before the Madras High Court seeking issuance of a Writ of
Mandamus directing the official respondents therein to keep the
elephant corridors free from encroachment and to prevent any
other disturbances to the free movement of elephants and other
animals. It was the specific case of the petitioner therein that the
elephant corridor was being disturbed by some encroachers and
builders. Due to mushrooming of resorts, elephant corridors were
either closed or becoming narrow. It was further contended that
the Forest Department had not taken any stringent action to evict
the encroachers from the elephant corridor. On 02.02.2009, the
High Court passed an interim direction to the District Collector,
Nilgiris to file a status report showing the steps taken to remove
the encroachers from the lands falling under the elephant
corridor.
11. Certain other writ petitions were filed by the Schedule Tribes
and other Traditional Forest Dwellers contending that they were
12
not encroachers and that they had a right to occupy the land in
question under the Schedule Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006. It was further
contended that on the strength of the order dated 02.02.2009 in
Writ Petition No.10098 of 2008, the District Collector had directed
them to stop the cultivation of these lands and that they were
being prevented from collection of minor forest produce and
grazing their cattle. These writ petitions were clubbed together
for hearing before the Madras High Court.
12. At this stage, Hospitality Association of Mudumalai, the
appellant herein, filed an impleadment application in the said
case. It was contended that this association consisted of residents
of the Masingudi Bokkapuram area and that they had been
providing hospitality services to tourists who visit the area to see
the wildlife and that there was a misguided sense of hostility
towards the people who own and run guest houses in this area
from the authorities and self-proclaimed environmentalists
dwelling outside the area. It was also contended that the
members of the said association had been living in the said area
13
for more than 50-60 years and that there had been virtually no
human-animal conflict in the area since there is little to no
agriculture and the elephants can freely move around throughout
the area.
13. During the course of hearing, the District Forest Officer of
Nilgiris North Division made a presentation before the High Court
to highlight the importance of the forests and corridors in the
region. The District Collector, Nilgiris also appeared before the
High Court and showed certain slides on his computer depicting a
map of the corridor of elephants. He stated that to allow the
elephants to pass through the corridor, the unauthorized
occupants had to be evicted. Similarly, the State’s PCCF also
made submissions before the High Court to highlight the
necessity of preservation of the elephant corridor by acquisition of
patta lands. Considering the rival contentions of the parties, on
30.09.2008, the High Court issued the following directions:
“(i) forest department, which has the knowledge of
movement of elephant in the corridor, may identify
and inform the same;
14
(ii) the State Government may publish the information
regarding the elephant corridor and the area, in
leading newspapers and also by drum beating/tom
tom, calling for objections of locals, if any, in the area
in question;
(iii) after hearing the locals, particularly those who may
be affected, they may finalize the elephant corridor
from which unauthorized occupants are to be evicted;
(iv) to ensure that schedule tribes and other forest
traditional dwellers are not affected, it is required to
identify the other traditional forest dwellers in terms
with Schedule Tribes and other Traditional Forest
Dwellers (Recognition of Forest Tribes) Rules, 2007;
(v) only after the recommendation and recording their
names in the appropriate register, they may proceed
with eviction, by giving notice in the newspaper, by
drum beating/tom tom and by giving individual notice
to the unauthorised occupants.
15
(vi) So far as the acquisition of the land is concerned, if
any private land is required to be acquired, they will
have to follow the procedure under the Land
Acquisition Act. Prima facie, as the tribals and other
forest dwellers cannot be evicted from the
unauthorized lands, their lands need not required to
be acquired, if it is a forest land. Learned counsel for
the parties are requested to give further suggestion
in the matter, in the interest of public and elephants.”
14. Since there was opposition to the map prepared by the
District Collector by the contesting parties, the Court felt it
necessary that a team of experts of the Environment and Forest
Department be constituted to identify the elephant corridor and
submit a report after taking into consideration different books
published with regard to elephant corridors.
15. In pursuance of the directions of the High Court, an Expert
Committee was constituted by the Government. The Expert
Committee visited the elephant corridor area in the Nilgiris twice,
enquired with the field officers and tribals of the area and
16
obtained opinions from experts before submitting its report on
04.11.2009. A map of the elephant corridor in the Sigur Plateau in
Nilgiris region was also filed by the said expert Committee before
the High Court. Noting that the State Government was responsible
for notifying elephant corridors within its territory, the High Court
on 01.12.2009 directed the State Government to choose one of
the maps for the elephant corridor out of either the one identified
by the Expert Committee or the one identified by the Wildlife Trust
of India’s publication “Right of Passage – Elephant Corridors of
India”, which was referred to in the Central Government’s
abovementioned letter dated 11.08.2006. This order also directed
the State Government to file an affidavit disclosing the actions it
intends to take against resort owners and residents of the
elephant corridor. In accordance with the High Court’s directions,
the State Government came forward with a decision that it will
ensure that no illegal construction takes place in the area shown
as ‘elephant corridor’ in the report of the Expert Committee and
that no person will be allowed to put up fresh solar/electrical
fencing within the proposed area of the elephant corridor. Taking
17
into account the materials on record, the High Court passed a
fresh order dated 03.12.2009 as under:
“(i) The State Government will have to decide as to which
Elephant Corridor has to be identified, i.e. corridor
identified by the Central Government in the letter dated
11.08.2006, with the help of the State Forest Department
and NGOs, or the proposed Elephant Corridor as identified
by the Expert Committee in the present cases, preferably
within one month.
(ii) The publication of such map showing the Elephant
Corridor, should be made by the State through the Forest
Department, in two local newspapers, one in English and
another in vernacular Tamil, giving the details of Survey
Numbers of private lands which are falling within the
proposed Elephant Corridor. The persons may be asked to
submit their objections within a time frame, say one
month.
18
(iii) The intimation of such proposed Elephant Corridor along
with a copy of the report of the Expert Committee, should
be also forwarded to each local Panchayats, which fall
within the proposed Elephant Corridor, so that the local
persons can have the knowledge of the corridor of their
own, if they so choose.
(iv) No separate individual hearing is required to be given to
any person, though a mass hearing may be given as
generally given in the “Land Acquisition” cases and on
hearing such objections, the proposed Elephant Corridor
including the map containing the different Survey
Numbers should be finalized and be also published at an
early date, say maximum within six months.
(v) No individual or any Association generally should
intervene in the case. If they have any objection, they
may raise before the authorities concerned.
23. On such finalization, it will be open for the State to
decide:
19
(a) Whether the private lands which are falling within the
Elephant Corridor, do not belong to Schedule Tribe and
other traditional forest dwellers, who have a right under
the provisions of the Schedule Tribes and other
Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006, and whether such lands should be acquired. If
the decision is taken to acquire the lands, they will follow
the regular procedures as laid down under the provisions
of the Land Acquisition Act.
(b) If the State Government, in the meantime, wants to take
over the management of the private forest, it may do so
in terms of Section 3 of the Tamil Nadu Private Forest
(Assumption of Management) Act (LV of 1961), so as to
enable the elephants to pass through the corridor
without any hindrance till the lands are acquired. ”
16. Here, it may be noted that the aforesaid order of 03.12.2009
passed by the High Court was challenged before this Court
through Special Leave Petition (Civil) Nos. 14416–14422 of 2010
which was disposed vide order dated 30.04.2010 in the following
terms:
20
“Permission to file special leave petitions is granted.
Delay condoned.
Heard learned counsel for the petitioner and learned counsel
for respondent no.1.
The learned counsel for the petitioner contends that if
proposed Elephant Corridors established, the petitioner
would be seriously effected as his land falls in that area.
The petitioner would be at liberty to approach the
Committee which is likely to finalize the Elephant Corridors
and also would be at liberty to approach the High Court and
seek intervention proceedings though the division Bench has
already indicated under other proceeding that no
intervention is allowed.
With the above directions, the special leave petitions are
disposed of.”
17. In pursuance of the directions of the High Court, the State
Forest Department issued a public notice dated 07.01.2010,
21
thereby publishing a proposed elephant corridor, as identified by
the Expert Committee, and requiring the persons whose private
lands are falling within the proposed corridor to submit objections.
Public hearings were also held by the authorities concerned and
the objections raised by various persons were rejected.
Thereafter, the State Government issued the impugned G.O.,
thereby confirming the elephant corridor map as published on
07.01.2010 and also specifying the boundaries of the elephant
corridor and the Survey Nos. falling within the said corridor.
18. Several writ petitions were filed before the High Court
challenging the impugned G.O. These were clubbed with the other
pending writ petitions and PIL and came to be decided by the
High Court’s impugned order dated 07.04.2011.
19. The High Court rejected the appellant’s contentions
regarding the propriety of constitution of the Expert Committee
given that the Wildlife (Protection) Act, 1972 (‘Wildlife Act’) does
not envisage the same and rather provides for constitution of
State and National Boards for Wildlife. It was held that the Expert
Committee’s mandate did not impinge upon that of the Boards
22
under the Wildlife Act. The High Court also did not find merit in
the appellant’s contention that the State Government lacked the
power to notify an elephant corridor. For this, the High Court relied
upon Entries 17A ‘Forest’ and 17B ‘Protection of wild animals and
birds’ in the concurrent list and the power of the State
Government to notify Sanctuaries, National Parks, Conservation
Reserves and Community Reserves under Chapter IV of the
Wildlife Act.
20. Before the High Court, the appellant had also contended that
the impugned G.O. sought to create an “artificial corridor” in an
area through which elephants do not traditionally pass. In
rejecting this contention, the High Court held that the material on
record clinchingly showed that the animals were already moving
through the said area. The High Court observed that the appellant
and others have constructed holiday resorts and are carrying on
commercial activities in the area despite only holding permissions
for construction of dwelling houses. The mushrooming of such
resorts, which were bounded by electric fencing and barbed wires,
had severally restricted the movement of elephants and caused
an increase in incidents of human-elephant conflict. Accordingly,
23
the High Court passed the following directions which are under
challenge before us:
“The resort owners and other private land owners are
directed to vacate and hand over the vacant possession of
the lands falling within the notified ‘elephant corridor’ to the
District Collector, Nilgiris within three months from today. In
the meanwhile, the Government of Tamil Nadu is permitted
to go on with the implementation of the project as has been
notified in G.O.M.s. No. 125, dated 31.08.2010, in the best
interest of the wildlife, particularly elephants so as to notify
and improve the elephant corridor.”
21. The High Court also directed the State to strictly adhere with
the provisions of the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006 and in case any
forest dwellers are evicted from the elephant corridor, they be
provided alternate accommodation or compensation as per the
procedure contemplated under law.
22. A Review Application No. 157 of 2011 was filed against the
above decision of the High Court. The same was dismissed by the
24
High Court vide its order dated 16.11.2011 on the ground that the
impugned judgement was a reasoned order which did not suffer
from any error apparent on the face of the record.
C. Proceedings before this Court
23. During the pendency of the present appeals, this Court was
informed that large scale construction was underway in the
elephant corridor in Tamil Nadu. In its order dated 12.07.2018,
this Court had made it clear that no construction is allowed in the
elephant corridor in Tamil Nadu and directed District Collector,
Nilgiris to prepare and present a plan of action on how to identify
the constructions that have been made, when they have been
made and for what purpose the constructions are being utilized.
This plan of action was to be with respect to the elephant
corridors as mentioned in the Report of the Elephant Task Force
titled “Gajah” as well as the elephant corridor as notified by the
impugned G.O.
24. In compliance with this order, the District Collector, Nilgiris
filed a Plan of Acton Report which identified the following
constructions in the elephant corridor areas:
25
Sl. Nature of the construction Total number
No. of
constructions
01. Total No. of Buildings within Resort 309
Complexes (numbering 39)
02. Houses 390
03. Other Common Buildings (Schools, 27
Water Tank, Community Halls, Temple,
Public Toilet etc.)
04. No. of Estates/Plantations 9
05. No. of Cultivation Fields 77
06. Other Constructions 9
Total 821
Specifically in respect of the resorts, the District Collector
submitted that all 39 of them were operating illegally as 27 of
them had obtained approvals only for residential purpose whereas
12 of them had not obtained any approval at all.
25. At the next hearing on 09.08.2018, this Court noted that only
advocates on behalf 12 out of the 39 resorts were present before
the Court and thus deemed that the remaining 27 resorts had
accepted the Collector’s above-mentioned report. Accordingly,
this Court directed that these 27 resorts be closed down/sealed by
the Collector and granted 48 hours to the other 12 resorts to
produce documents showing approvals and title for running of
26
their resorts before the Collector. If the Collector were to find the
documentation incomplete, she was directed to immediately close
down/seal the premises. Further, the non-resort dwellers who
were identified by the Collector’s report to be occupying land in
the corridor area, were granted a period of 2 months to produce
necessary documents for verification before the Collector.
26. Thereafter, the District Collector, Nilgiris filed an Action
Taken Report dated 23.10.2018 stating that 27 resorts had been
sealed as per this Court’s above direction and documents were
received from the other 12 resorts. The Collector submitted that
out of these 12 resorts, only 1 resort owner could show proof of
use of his premises for residential purpose while the remaining 11
resort owners did not have valid documents. Accordingly, these
11 resorts were also sealed by the Collector in accordance with
the above order of this Court. In this Report, the Collector
additionally highlighted that the Forest Department had directed
the sealed resorts to remove solar, electric and barbed wire
fences erected around their premises as the same hinder the free
movement of elephants in the corridor. However, only a few of the
27
resort owners had complied with the Forest Department’s
directive. In this connection, on 24.10.2018, this Court directed
that electric fences and barbed wire, wherever installed by the
resort owners, should be removed immediately. The District
Collector, Nilgiris filed another Action Taken Report dated
29.11.2018 reporting that she had ensured removal of electric
fences and barbed wire from the premises of the aforesaid resorts
in the corridor area.
27. During this time, in addition to the 12 resorts which were
initially represented before this Court, several other owners of
resorts/guest houses as well as the owners of cultivated lands,
dwelling houses and other constructions in and around the
elephant corridor area have sought to be impleaded before us,
being aggrieved by the actions of the District Collector, Nilgiris
and also the impugned High Court decision.
D. Contentions of the Parties
28. Appearing for the appellants, Shri Salman Khurshid, learned
Senior Counsel argues that the appellants’ lands do not fall within
an elephant corridor and that the area notified under the
28
impugned G.O. does not fall within any scientifically recognized
elephant corridor and seeks to cover areas which are not
traversed by elephants. It is further contended that the
identification of elephant corridors is a scientific process and that
the impugned G.O., which was issued in pursuance of the
recommendations of the Expert Committee appointed by the High
Court, was erroneous and untenable in law. The resort owners
claim that they run small resorts which are compatible with the
environment and are essentially for tourists who want to be close
to nature and wildlife. It is also asserted that these resorts help
tourists acquire sensitivity towards animals and the environment,
while preventing any exploitation or damage by their presence.
Some of the other appellants have also contended that their lands
do not fall within the elephant corridor from which the removal of
encroachment was sought.
29. It is further argued that the areas which have been notified
as elephant corridor by the State Government through the
impugned G.O., are in variance with all authoritative studies on
historic elephant corridors in Sigur Plateau from 1972 till date. It is
29
also submitted that there is a variance in acreage between the
recommendations of the Expert Committee formed by the High
Court and the impugned G.O. issued by the State Government. It
is contended that the unilateral addition and deletion of
private/Government lands in the said G.O. is arbitrary and illegal.
The expansion of the corridor areas under the G.O. amounts to
creation of a new elephant corridor which does not presently exist
and the same is unlawful.
30. Learned counsel for some of the other appellants have made
similar submissions. It was argued that the lands of the appellants
do not fall within the elephant corridor. It was also argued that the
Plan of Action Report filed by the District Collector, Nilgiris before
this Court is clearly fallacious and the actions of the District
Collector in pursuance thereof are illegal. Some of the appellants
have further alleged that the District Collector, Nilgiris has
illegally removed fencing from establishments outside the notified
elephant corridor area as well.
31. On the other hand, learned advocate appearing for the
contesting respondents, has sought to justify the impugned
30
judgment of the High Court, so also the Plan of Action Report and
Action Taken Reports filed by the District Collector, Nilgiris.
32. Learned advocate appearing as Amicus Curiae has supported
the submissions of the contesting respondents and the Reports
submitted by the District Collector, Nilgiris.
E. Our Analysis
33. We have carefully considered the submissions of the learned
counsel made at the Bar and perused the materials on record.
34. At the very outset, it must be noted that the Wildlife Trust of
India terms elephants as a “keystone species” because their
nomadic behavior is immensely important to the environment.
Herds of roaming elephants play several important roles in the
ecosystem:
(i) Landscape architects: Elephants create clearings in the
forest as they move about, preventing the overgrowth
of certain plant species and allowing space for the
regeneration of others, which in turn provide
sustenance to other herbivorous animals.
31
(ii) Seed dispersal: Elephants eat plants, fruits and seeds,
releasing the seeds when they defecate in other places
as they travel. This allows for the distribution of various
plant species, which benefits biodiversity.
(iii) Nutrition: Elephant dung provides nourishment to
plants and animals and acts as a breeding ground for
insects.
(iv) Food chain: Apex predators like tigers will sometimes
hunt young elephants. Further, elephant carcasses
provide food for other animals.
(v) The umbrella effect: By preserving a large area for
elephants to roam freely, one provides a suitable
habitat for many other animal and plant species of an
ecosystem.
Elephant corridors allow elephants to continue their nomadic
mode of survival, despite shrinking forest cover, by facilitating
travel between distinct forest habitats. Corridors are narrow and
linear patches of forest which establish and facilitate connectivity
across habitats. In the context of today’s world, where habitat
fragmentation has become increasingly common, these corridors
32
play a crucial role in sustaining wildlife by reducing the impact of
habitat isolations. In their absence, elephants would be unable to
move freely, which would in turn affect many other animal
species and the ecosystem balance of several wild habitats would
be unalterably upset. It would also eventually lead to the local
extinction of elephants, a species which is widely revered in our
country and across the world. To secure wild elephants’ future, it
is essential that we ensure their uninterrupted movement
between different forest habitats. For this, elephant corridors
must be protected.
35. Legal intervention in preservation of these corridors has
been necessitated because wildlife corridors are threatened by
various social, economic and anthropogenic factors, as noted
above. Commercial activities such as running of private resorts
and construction of new buildings with barbed and electric fences
within elephant corridors pose a serious threat of fragmentation
and destruction of habitats. The long-term survival of the species
depends on maintaining viable habitats and connecting corridors
which maintain variance in the species’ gene pool and avoid other
33
risks associated with habitat fragmentation and isolation of
species.
36. Overtime, several environmental legislations including the
Indian Forest Act, 1927 and the Wildlife Act have been enacted to
provide for the protection of forests and wild animals, with a view
to ensuring ecological balance and preserving natural habitats
including such corridors. The object of the Wildlife Act was
interpreted emphatically by this Court in State of Bihar v.
Murad Ali Khan1 in the following terms:
”8. … The policy and object of the Wild Life laws have a long
history and are the result of an increasing awareness of the
compelling need to restore the serious ecological-imbalances
introduced by the depredations inflicted on nature by man.
The state to which the ecological imbalances and the
consequent environmental damage have reached is so
alarming that unless immediate, determined and effective
steps were taken, the damage might become irreversible.
1 1988 (4) SCC 655
34
The preservation of the fauna and flora some species of
which are getting extinct at an alarming rate, has been a
great and urgent necessity for the survival of humanity and
these laws reflect a last-ditch battle for the restoration, in
part at least, a grave situation emerging from a long history
of callous insensitiveness to the enormity of the risks to
mankind that go with the deterioration of environment.
xxx xxx xxx
10. … Environmentalists’ conception of the ecological
balance in nature is based on the fundamental concept that
nature is “a series of complex biotic communities of which a
man is an inter-dependant part” and that it should not be
given to a part to trespass and diminish the whole. The
largest single factor in the depletion of the wealth of animal
life in nature has been the “civilized man” operating directly
through excessive commercial hunting or. more disastrously,
indirectly through invading or destroying natural habitats. ”
37. Specifically in issue before us, is the corridor in the Sigur
Plateau of Tamil Nadu. It connects the Western and the Eastern
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Ghats and sustains elephant populations and their genetic
diversity. The Sigur Plateau has the Nilgiri Hills on its south-
western side and the Moyar River Valley on its north-eastern side.
Depending on the monsoon, the elephants migrate in search of
food and water and during the course of their migration, they
have to cross the Sigur Plateau. This migratory path is considered
to be very crucial as it connects several contiguous forest areas
forming the Nilgiri Biosphere Reserve in the states of Tamil Nadu,
Karnataka and Kerala, the largest protected forest area in India.
38. Conflicting maps of this corridor were presented before the
Madras High Court, which thus directed the State Government to
choose between: (i) the elephant corridors identified in the
Wildlife Trust of India’s book titled “Right of Passage – Elephant
Corridors of India” which were referred to by the Central
Government in its letter dated 11.08.2006 to the State
Government; or (ii) the single elephant corridor identified by the
Expert Committee appointed by the High Court. As per the
aforesaid book titled “Right of Passage”, the following 4 corridors
lie in the Sigur Plateau region: (i) Avarahalla – Sigur, (ii) Kalhatti –
36
Sigur at Glencorin, (iii) Moyar – Avarahalla and (iv) Kalmalai –
Singara and Avarahalla. The Expert Committee examined all the
elephant corridors in the area and identified a single elephant
corridor comprising of various elephant corridors in the Sigur
Plateau region. The State Government, vide the impugned G.O.,
notified this single elephant corridor, along the lines of the
recommendations made by the Expert Committee.
39. The first limb of the appellants’ contentions before us is that
there is no statutory power for creating/recognition of new
corridors by the State Government. We do not find merit in this
argument and, in principle, are in agreement with the findings of
the High Court regarding the power of the State Government to
take measures, including issuance of the impugned G.O., for
protection of wildlife in Tamil Nadu. It is undeniable that the State
Government is empowered to take measures to protect forests
and wildlife falling within its territory in light of Entries 17A
‘Forest’ and 17B ‘Protection of wild animals and birds’ in the
concurrent list and the power of the State Government under the
Wildlife Act to notify Sanctuaries and other protected areas. It is
an admitted position that the land of the appellants has also been
37
notified as private forest in 1991 under the Tamil Nadu
Preservation of Private Forests Act, 1949, which prohibits cutting
of trees in private forests. Our attention has also been drawn to
the decision of this Court in T.N. Godavaraman Thirumulkpad
v. Union of India2 wherein felling of trees in the state of Tamil
Nadu was prohibited in all forests, including forests situated in
privately owned lands. The contesting respondents have argued
that the construction of the appellants’ resorts must have
necessarily run afoul of the above decision of this Court. Without
commenting on the factual accuracy of this assertion, given that
the classification of the appellants’ land as private forest land is
not in dispute here, we find no difficulty in holding that the State
Government was empowered to protect the habitats situated on
the appellants’ land by notifying an elephant corridor thereupon.
40. Furthermore, since the impugned decision of the High Court,
the Ministry of Environment, Forest and Climate Change vide its
Notification S.O. 4498(E) dated 13.12.2019 has declared the
entire area in question and adjoining areas around the Mudumalai
Tiger Reserve as an Eco-Sensitive Zone. Under this Notification,
2 1997 (2) SCC 267
38
the State Government of Tamil Nadu has been expressly directed
to regulate land use generally, as well commercial establishment
of hotels/resorts specifically, in the Eco-Sensitive Zone so
established. As was held by this Court in M.C. Mehta v. Union of
India and Ors.3 the “Precautionary Principle” has been accepted
as a part of the law of our land. Articles 21, 47, 48A and 51A(g) of
the Constitution of India give a clear mandate to the State to
protect and improve the environment and to safeguard the forests
and wild life of the country. It is the duty of every citizen of India
to protect and improve the natural environment including forests
and wild life and to have compassion for living creatures. The
Precautionary Principle makes it mandatory for the State
Government to anticipate, prevent and attack the causes of
environmental degradation. In this light, we have no hesitation in
holding that in order to protect the elephant population in the
Sigur Plateau region, it was necessary and appropriate for the
State Government to limit commercial activity in the areas falling
within the elephant corridor.
3 1997 (3) SCC 715
39
41. The second limb of the appellants’ submissions comprises of
questions about the scientific accuracy of the Expert Committee’s
Report and contentions that the dimensions as well as the
location of the single corridor identified therein are at odds with
authoritative scientific publications. It has been argued by the
appellants that their resorts and other establishments do not fall
within the historic corridors identified in these publications. These
assertions were dealt with by the High Court which held that there
was material on record to show presence of elephants as well as a
past incident of human-elephant conflict, which resulted in the
death of a French tourist, in the region where the appellants’
resorts are located. The High Court also held that any absence of
elephants from the areas surrounding the appellants’ resorts was,
in fact, due to the construction activities of the appellants
whereby access of the elephants has been restricted through
erection of electric fencing. We see no reason to interfere with the
above factual findings of the High Court and also do not find fault
in the State Government’s adoption of the recommendations of
the High Court-appointed Expert Committee, through the
impugned G.O.
40
42. This brings us to the last limb of the submissions of the
appellants, which is comprised of factual objections to the
acreage of the elephant corridor as notified by the impugned G.O.
and the actions taken by the District Collector, Nilgiris in
pursuance thereof. The appellants have contended that there has
been substantial variance between the acreage recommended for
acquisition by the Expert Committee Report and the acreage in
the impugned G.O. It is further alleged that the acreage in the
newspaper advertisement by the State Government inviting
objections to notification of the corridor is also different from the
acreage in the impugned G.O. As all the objections received
pursuant to the said newspaper advertisement were rejected by
the State Government and since the impugned G.O. purported to
adopt the recommendations of the Expert Committee, the
appellants allege that the said variance in acreage is arbitrary
and unreasonable. It has also been alleged that the District
Collector, Nilgiris has acted arbitrarily in sealing their resorts after
rejecting the documents submitted by the appellant resorts
purporting to show approvals and title. Similarly, it has been
41
alleged that the District Collector went beyond the scope of this
Court’s order dated 24.12.2018 wherein immediate removal of
electric fences and barbed wire was directed. It is the appellants’
case that non-electric fences as well as fences beyond the
notified elephant corridor area were removed by the District
Collector. We are of the view that it is just and proper to hold an
inquiry to establish the veracity of the above factual objections of
the appellants.
43. Therefore, we appoint a 3-member Inquiry Committee
consisting of: (i) Hon’ble Mr. Justice K. Venkatraman, Former Judge
of the Madras High Court (Chairman); (ii) Mr. Ajay Desai,
Consultant to World Wide Fund for Nature-India and Member of
the Technical Committee to come up with a National Elephant
Action Plan (NEAP), constituted by the Union Ministry of
Environment, Forest and Climate Change (MOEF&CC); and (iii) Mr.
Praveen Bhargava, Trustee of Wildlife First and Former Member of
National Board for Wildlife to decide the individual objections of
the appellants and any other persons claiming to be aggrieved by
the actions of the District Collector, Nilgiris pursuant to the
impugned G.O. and as recorded before us through her Plan of
42
Action Report and her twin Action Taken Reports, as also the
allegations regarding arbitrary variance in acreage of the
elephant corridor under the impugned G.O. The State Government
is directed to consult the Chairman of the Inquiry Committee and
pay remuneration to him and the other Members of the Inquiry
Committee. Further, we direct the State Government to provide
appropriate secretarial assistance and logistical support to the
Inquiry Committee for holding the inquiry within four weeks from
today.
44. We leave it to the discretion of the Inquiry Committee to
decide the location for its inquiry proceedings. We also authorize
the Inquiry Committee to appoint requisite staff on temporary
basis to assist the Committee in the inquiry and to fix their
salaries. The State Government is directed to pay their salaries.
The State Government and the district level authorities are
directed to provide their full cooperation and produce any and all
files/documents required by the Inquiry Committee to address the
grievances of the appellants and any other persons claiming to be
similarly aggrieved. The appellants and other persons claiming to
be aggrieved by the plan of action/actions of the District Collector,
43
Nilgiris pursuant to the impugned G.O. and the allegations
regarding variance in acreage under the impugned G.O, are
permitted to file objections containing their grievances before the
Inquiry Committee within a period of four months from today. The
Inquiry Committee is directed to consider the objections filed
before it and pass appropriate orders thereon after granting the
parties a reasonable opportunity of being heard. The parties are
also permitted to file documents in support of their respective
contentions before the Inquiry Committee.
45. The present appeals are disposed of in the aforesaid terms,
leaving the parties to bear their own costs. All pending
applications shall stand disposed of.
.……………………..…CJI.
(S. A. BOBDE)
…..……………………..…J.
(S. ABDUL NAZEER)
….…………………………J.
(SANJIV KHANNA)
New Delhi;
October 14, 2020.
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