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.

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(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

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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

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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 –

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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

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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.

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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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