Public Interest Litigation to declare Sawantwadi-Dodamarg in the Western Ghats an Eco Sensitive Area
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS APPELLATE CIVIL JURISIDCTION
WRIT PETITION (PIL) NO. OF 2011
In the matter of Article 226 of the Constitution of India
And
In the matter of declaration of the Sawantwadi-Dodamarg Corridor in Sindhudurg District of Maharashtra as an Ecologically Sensitive Area under the Environment Protection Act 1986, and the Rules framed thereunder.
Awaaz Foundation, a public charitable )
trust, formed and registered under the )
Bombay Public Trust, 1950 and having its )
Registered office at 74, New Silver Home, )
New Kantwadi Road, )
Bandra (W), )
Mumbai 400 050. ) ….Petitioner
Versus
1. Union of India, through the )
Ministry of Environment & Forests, )
Paryavaran Bhavan, CGO Complex, )
Lodhi Road, New Delhi – 110 003. )
2. State of Maharashtra, through )
Secretary, Environment Department, )
and Secretary, Revenue and Forest )
Department, both at Mantralaya, )
Mumbai 400 032 )
3. The Principal Chief Conservator of )
Forests (Wildlife), Maharashtra )
State, Nagpur )
4. The Collector, )
Sindhudurg District, Sindhudurg ) ……. Respondents
TO,
THE HON’BLE CHIEF JUSTICE AND
OTHER HON’BLE PUISNE JUDGES
OF THIS HON’BLE COURT
THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHEWETH:
A brief overview of the Region (Sindhudurg District and the Sawantwadi-Dodamarg Corridor)
Need for declaring Ecologically Sensitive Areas
Criteria for declaration of a region as an Ecologically Sensitive Area
10.As stated hereinabove, by an Office Memorandum dated April 6, 1999, the Government of India-Ministry of Environment and Forests constituted the Sen Committee to determine parameters for designating an area as an ESA and to make recommendations to the Government.
11.In light of the above mandate the Sen Committee identified 13 principal parameters of ecological sensitivity falling into three broad categories of ecological significance. The first of the three categories was species related, and defined the characteristics of species which are or may become threatened with extinction. The second category related to ecosystems some of which are essential for the survival of the first category while the rest are critical for maintaining the range and pace of evolution. The third category of ecological sensitivity included geo-morphological conditions which are known to have substantial effect on ecosystems at large. In addition to these primary criteria the Sen Committee also identified seven auxiliary criteria, which though less compelling than the primary criteria, nevertheless merited consideration in the view of the Sen Committee.
12.Without delving into the Sen Committee Report in detail, the Petitioners state that it is relevant to note certain criteria set out therein , and the same have been summarised briefly hereunder:
(i) Endemism-it refers to any species which is exclusively confined to a particular geographical area and occurs nowhere else in the world. Endemic species of plants and animals in the region represent a valuable biological endowment of the area and a loss of endemic species is irreparable. The area of occurrence of an endemic species needs to be protected in its entirety.
(ii) Rarity-a species with a small world population, i.e which although not at present endangered or vulnerable, is at risk.. The survival of a rare species depends upon the habitat remaining undisturbed, as any such disturbance may lead to the species becoming endangered. The entire area where such rare species are found needs to be protected.
(iii) Endangered Species-where a species faces a high risk of extinction in the wild in the near future, due to excessive exploitation, habitat destruction or any other kind of disturbance and unless such factors are urgently checked and reversed, the species will become extinct. In such circumstances it is crucial to protect the entire area which contains such endangered species.
(iv) Wildlife Corridors- Corridors connecting two or more patches of wildlife habitats. They serve various ecological functions such as providing migration route between areas where animals physically cross one another, facilitating habitat supplementation, maintaining a network of protected areas of protected landscapes to allow gene flow between sub-populations etc. Corridors such as the Sawantwadi-Dodamarg Corridor which is the subject matter of the present Petition, must be protected at all costs.
(v) Specialised Ecosystems-a specialised ecosystem possesses a unique combination of ecological features which are conducive to the emergence and perpetuation of a highly intricate and interdependent assemblage of biota. The eco-systems are locations of active and abundant diversification of species and are extremely fragile and must be accorded protection from any disturbance.
(vi) Areas with Intrinsically Low Resilience-ecosystems where any human interference may lead to an imbalance, loss of biodiversity and even extinction of certain species. Such areas must be protected.
(vii) Sacred Groves-Forest areas or patches of natural vegetation were preserved over generations on religious grounds and no human interference was allowed in these areas. Due to the protection accorded, over time these areas because naturalized and gave rise to considerable biological diversity and created a rich ecosystem. It is very necessary that such areas be protected to preserve their rich biodiversity.
(viii) Frontier Forests-these are remnants of primeval natural forests that have remained on the whole relatively undisturbed and are large enough to maintain biological diversity with varying types of species. As these forests are the only remnants of the natural forest ecosystems, they provide conditions for undisturbed organic evolution and speciation, and such forests are irreplaceable. Therefore their loss will endanger their unique ecological and evolutionary processes.
(ix) Origins of Rivers- A mountain, hill or spring from where a water stream originates is the origin of a river and is often a medium of support of various life forms ranging from bacteria to simple forms of plants and animal life, including fish, amphibians, birds and mammals. Disruption of a river system can have ecological consequences which can be so vast that they cannot be predicted. The whole area including channels, fissures and other features intrinsic to re-charging of a water source, has to be protected.
13.The Petitioner states and submits that the Sawantwadi-Dodamarg Corridor is one such ESA which satisfies the aforesaid criteria as well as auxiliary criteria like being an Upper Catchment Area and High Rainfall Area, and merits protection. The diverse flora and fauna and the rich biodiversity of the said Corridor, as well as the urgent need for its protection, are dealt with more particularly hereinbelow.
The Sawantwadi-Dodamarg Corridor Qualifies As an Ecologically Sensitive Area
14.The aforesaid criteria set out in the Sen Committee Report are duly satisfied in respect of the said Corridor. The said Corridor is replete with rare species of animals, birds, plants, and trees and the same must be duly accorded protection by declaring it as an ESA. Hereto annexed and marked Exhibit ‘D’ is a table showing the manner in which the said Corridor complies with the various criteria set down in the Sen Committee Report.
15.In the year 2010 a Rapid Biodiversity Assessment was carried out in respect of Village Asaniye, which is one of the villages in the said Corridor by the Applied Environmental Research Foundation (AERF), Pune. As there was a proposal to issue mining licences in the said area, on the invitation of the villagers a detailed survey was carried out of the various plant and animal species in the said area. The Assessment Report expressly sets out the International Union for Conservation of Nature (“IUCN”) Status in respect of the wildlife in the said area, and it is pertinent to note that a significant number of species of wildlife were categorised as "Vulnerable", "Endangered" and "Near threatened". The Report ends with the conclusion inter alia that the said area is an Ecologically Sensitive Area and a last refuge of biodiversity in the Sahyadris, that if mining is allowed in the area, an important wildlife corridor will be destroyed, wildlife will enter human habitation and this in turn will increase man-animal conflicts. The Petitioner craves leave to refer to and rely upon the Rapid Biodiversity Assessment Report of Village Asaniye which forms a part of the said Corridor, when produced.
16.The said Report further showed that there were approximately 303 species of plants, shrubs and trees in the said Corridor, several of which were of crucial medicinal value. Consequently, the Petitioner states that if mining activity and indiscriminate felling of trees is permitted in the said Corridor, as is being done in the manner more particularly set out hereinafter, then these crucial trees, plants and herbs will be completely destroyed and lost forever.
17.The Forest Department has also issued a detailed list of the various trees, shrubs, climbers, medicinal plants as well as wild animals and birds that are found in the Sawantwadi region, a copy whereof is hereto annexed and marked as Exhibit ‘E’. The said list shows that there are approximately 240 types of plants in the said Corridor as well as 18 species of wildlife (some of which such as the Bengal Tiger being in serious danger of extinction) and 13 species of birds. Also Annexed and marked Exhibit ‘F’ is a copy of the map showing the areas where wildlife is present in the Sawantwadi region.
18.The strong presence of wildlife, including certain animals which are nearing extinction, is evident from a Reply to an RTI Application issued by the Office of the Range Forest Officer – Dodamarg on June 22, 2010, which sets out a list of wildlife found in the region as well as the details of attacks due to wild elephants and other wildlife conflict with humans since 2005. It is significant to note that there are a large number of tiger attacks in the said list, thereby clearly showing that the region has a sizeable tiger population, and on that ground alone the said region must be declared as an ESA. Hereto annexed and marked as Exhibit ‘G’ is a copy of the aforesaid Reply issued by the Range Forest Officer – Dodamarg on June 22, 2010 and Exhibit ‘H’ is a map showing the cases where cattle have been killed by wild animals in the Sawantwadi region.
19.The Petitioner submits that is very clear that if the region is continued to be exploited in the manner more particularly set out hereinafter, the ecosystem will be completely destroyed and the few tigers that are left in the region will be either forced to migrate elsewhere or will die out. As stated hereinabove, if for no other reason, the said Corridor ought to be declared as an ESA solely for the purpose of protecting the fragile tiger population in our country, which is nearing extinction.
Need for the Sawantwadi-Dodamarg Corridor to Be Declared As an ESA0
20.The entire Western Ghats region, and more particularly the said Corridor, is environmentally sensitive and ecologically significant. However, there is little enforcement of environmental protection laws in the region. On the contrary permissions are being granted for mining leases and for indiscriminate felling of trees in a manner that will quickly deplete the rich biodiversity of the region and will result in the same being heavily exploited.
21.There is a pressing need for declaration of the said Corridor as an ESA, and the same is inter alia evident from the following:
(a) As set out hereinabove the said Corridor contains rich biodiversity and diverse flora and fauna, some of which are in danger of becoming extinct.
(b) The said Corridor has a strong tiger population, and it is manifestly necessary and proper and in the interest of preserving the aforesaid tiger population that the said area be declared an ESA. The rapid exploitation of the area is depleting the ecosystem and the habitat of the Tigers and forcing the tiger population as well as leopards and elephants to venture out of their habitat and come into conflict with humans. The invariable consequence of such human interaction is that the tiger, elephant or leopard is harmed or killed by the villagers or humans and cattle are attacked and crops are damaged.
(c) At present there are no clearly defined strategy for protecting the said Corridor, and by the time recommendations are received by the State Government, if at all, and steps are taken, severe degradation and depletion of the natural reserves in the said Corridor will have occurred.
(d) The said Corridor is a natural ecosystem which acts as a life support system for the local residents as well as for the adjacent coastal belts. The implications of deforestation and land degradation are already evident and if these ecologically sensitive systems are disrupted further, the economic losses due to unsustainable development will be immense and the restoration thereof will become financially unviable.
(e) Pertinently, the villagers in the said Corridor are in favour of the declaration of the said Corridor as an ESA, as they feel that the same would protect the fragile ecosystem and would preserve the flora and fauna therein. Towards this end submissions have been made by 22 villages to have the said area declared as an ESA, especially in light of the danger to the tiger population. Hereto annexed and marked as Exhibit ‘I’ is a copy of a letter addressed by the Sarpanch of Village Asaniye to the Prime Minister of India on February 5, 2010 seeking the PMO’s intervention for declaring the area as an Ecologically Sensitive Area. The Petitioner craves leave to refer to and rely upon the copies of the representations made by 22 villages in respect of declaring the said Corridor as an ESA, when produced.
(f) In response to the Sarpanch’s letter to the Prime Minister, a joint inspection of Village Asaniye was taken up by the Department of Geology and Mining, Government of Maharashtra and the Ministry of Mines, Government of India during which it was observed that the area visited was covered thickly and densely with lush green trees and plants with some medicinal and rare plants also being located in the area. It was also noted that the area contained a major water fall as well as small water falls, ponds and rivulets, and that tigers, leopards, black bear, elephants, wild buffaloes as well as a variety of birds were found in that area which needed to be protected. Hereto annexed and marked Exhibit ‘J’ is a copy of the Field Observations and Note of Joint Inspection prepared by the Directorate of Geology and Mining, Government of Maharashtra.
(g) The ecosystem in the said Corridor is inherently fragile due to its special nature and small size. These highly specialised and fragile ecosystems have an intrinsically low resilience to environmental disturbance from a variety of human activities. The rapid exploitation will cause severe damage to the highly sensitive ecosystem resulting in rapid deterioration of the flora and fauna in the region.
(h) In a detailed Report on the "CURRENT ECOLOGICAL STATUS AND IDENTIFICATION OF POTENTIAL ECOLOGICALLY SENSITIVE AREAS IN THE NORTHERN WESTERN GHATS" submitted by the Institute of Environment Education and Research, (hereinafter referred to as the “IEER Report”), the Institute has expressly recorded that corridors such as the Sawantwadi-Dodamarg Corridor are of immense value, and must be protected at all costs. Hereto annexed and marked as Exhibit ‘K’ is a copy of the said IEER Report published in October 2010.
(i) In the said IEER Report (at page 108 thereof) it was further concluded that such corridors are of great importance to the local people, as once they are disrupted predators and herbivores are forced into the agricultural lands and human settlements. This in turn leads to serious human-wildlife conflicts which have catastrophic effects, most often for the wildlife concerned.
Consequences of not declaring the Sawantwadi-Dodamarg Corridor as an ESA
22.The Petitioner states and submits that inter alia for the aforesaid reasons it is crucial that the said Corridor be declared as an ESA. If the same is not done, the consequences will be catastrophic as the rich biodiversity in the region, which is already depleted, will be completely destroyed.
Mining Activity
23.In recent months several mining leases have been issued for carrying out mining activity in this fragile Sawantwadi-Dodamarg Corridor. The said mining leases have been given without any application of mind as to the fragile nature of the ecosystem in the said Corridor. From time to time various authorities had recorded their objection to the mining leases being granted on the ground that the said region was replete with wildlife and were an important conservation zone, but nonetheless the said licences have been issued by the Ministry of Mines, Government of India, in complete disregard of the aforesaid recommendations of the various authorities. The Petitioner craves leave to refer to rely upon the various Proposals in respect of the mining leases, and the recommendations in that regard, as and when produced.
24.As recently as on March 19, 2010 the Principal Chief Conservator of Forests (Wildlife), Maharashtra Respondent No.3 abovenamed, was pleased to issue an opinion recommending that new mining activities in the ecologically fragile area of Sawantwadi would be a severely regressive step with wide environmental ramifications and would spell doom for flora and fauna conservation efforts. In the said Opinion the Respondent No.3 categorically records that “the project would result in an irremediable and permanent mutilation of wildlife habitat". In the said Opinion it was further recorded that tigers had been observed in the area and there were cases of tiger and elephant attacks. It was further noted that on account of the increase in mining activity, these animals were now no longer being found in the vicinity of the mining areas. The aforesaid clearly shows that while the said Corridor is replete with wild animals, flora and fauna, the mining activities are severely hampering the presence of wildlife. Hereto annexed and marked as Exhibit ‘L’ is a copy of the aforesaid Opinion of the Respondent No.3 dated March 19, 2010.
25.The IEER Report (at page 45 thereof) has expressly concluded that major mining concessions that have been granted will have a serious impact on local biodiversity, no steps for mitigation of the damage caused to biodiversity is being taken and most abandoned mined areas are left for years and are covered by weeds which cannot support any plant life aside from the most general species. It was concluded that the mined areas lead to severe impediments for many species to move between patches of the forest and further completely destroyed the flora and fauna in the region.
Indiscriminate Felling of Trees
26.The Petitioner states and submits that if the Corridor is not declared as an ESA, the rapid development and exploitation thereof will continue unabated. In such an event there will be severe damage caused to the ecosystem and indiscriminate felling of trees and destruction of shrubs, bushes, plants etc.
27.In the preceding two years more than 18 lakh trees have been destroyed/felled in Sindhudurg District. The aforesaid information was obtained from the Tree Authority, Dodamarg, in reply to an RTI Application filed by one Mr. Sandeep Sawant. In fact there have been approximately 18 lakh trees felled in the last two years in the Dodamarg Forest Circle alone, which is part of the said Corridor. Hereto annexed and marked as Exhibit ‘M’ is a copy of the aforesaid reply to the said RTI Application, along with its English translation.
28.Recently a proposal was made to the Principal Chief Conservator of Forests, Maharashtra for diversion of private forest land in Village Kesari in Sawantwadi, for the purpose of mining of iron ore and other related activities. The said proposal was rightly rejected by the Principal Chief Conservator of Forests on account of the fact that the project required the removal of approximately 75,410 trees. In the said rejection it was expressly noted that the project area is in a fragile ecosystem where mining and large-scale concentrated tree felling would be "highly damaging to the terrain” and that it would adversely affect wildlife conservation. Hereto annexed and marked as Exhibit ‘N’ is a copy of the Principal Chief Conservator of Forests’ rejection of the proposal for diversion of private forest land. Despite strong opposition from the Forest Department, however open cast iron ore mining has commenced in the village of Kalne and the same has destroyed vast areas of forest, disrupted movement of wildlife and affected water sources. The Petitioner submits that if one mining project required destruction of approximated 75,000 trees, the 32 proposed mining leases would result in over 2 crore trees being destroyed, thus leading to complete destruction of some of the best forests in the Western Ghats region.
29.It is pertinent to note that the Hon’ble Supreme Court has expressly recognized the need to protect forest areas such as the said Corridor and to prevent any exploitation and degradation thereof. In the landmark case of T.N. Godavaraman Thirumalpad vs. Union of India the Hon’ble Supreme Court had been pleased to direct that all forest land in the record of the Government, irrespective of ownership, would be deemed to be forests and must be protected. Hereto annexed and marked as Exhibit ‘O’ is a copy of the aforesaid order passed by the Hon’ble Supreme Court.
30.The Government of Maharashtra had in its initiative to boost tourism industry in the State, proposed a New Package Scehme of Incentives for Tourism Projects. Under the said Scheme, the entire Sindhudurg District was to be developed as a “Special Tourism Area identified by the State Government”. Pursuant to the declaration of Sindhudurg District as a Tourism District, the State Government has passed a Resolution dated 26th April 2010 to ensure that no chemical or hazardous industry would be permitted in the said District, in order to give more emphasis to protection of environment along with tourism development. The Petitioner craves leave to refer to and rely upon the Resolutions passed by the State Government for declaration of Tourist Areas along with Annexures thereto which list out the Industries to be permitted therein as well as Industries which may be permitted case-wise (mining does not figure in either of the lists).
31.The Minister in Charge of MOEF, Mr. Jairam Ramesh also addressed a letter dated 18th October 2010 to Mr. Ashok Chavan, the then Chief Minister of Maharashtra State, enclosing a news item which had appeared in the Times of India of 10th October 2010, expressing the greatest concern regarding the news reported in the news item and requesting the Hon’ble Chief Minister to review the 49 mining leases approved by the State Government. The Hon’ble Minister thereafter once again vide his letter dated 29th November 2010 requested Mr. Prithviraj Chavan, the present Chief Minister to review the mining leases. Hereto annexed and marked Exhibits ‘P’ and ‘P1’ are the letters dated 18th October 2010 and 29th November 2010, respectively.
32.The Petitioner has time and again expressed her concern about the bauxite and iron ore mining licenses being granted in Sindhudurg. The Petitioner was therefore invited for a meeting which was held in the office of the Environment Secretary, Government of Maharashtra Ms. Valsa Nair Singh, on 24th January 2011. At the said meeting the Petitioner was informed that there were 54 operational mines in Sindhudurg (though the Petitioner is aware only of 5), that the Ministry of Mines was the proper authority to take action or to monitor the said mines and that the State Government was unable to recommend ESA status for the said Corridor to the Government of India since there was delay on the part of the Collector, Sindhudurg (Respondent No.4 abovenamed) in forwarding the Gram Sabha Resolutions from 22 villages requesting declaration of their area as ESA. The Petitioner has immediately on the next day, addressed a letter to the Environment Secretary, setting down what transpired in the meeting and requesting the Hon’ble Secretary to urge the Respondent No.4 to immediately forward the Gram Sabha Resolutions so that they could be acted upon for protection of the Sindhudurg area from environmental degradation and devastation of the traditional livelihood of the villagers. Hereto annexed and marked Exhibit ‘Q’ is the email of the Petitioner dated 25th January 2011 to the Environment Secretary.
33.The Environment Secretary replied to the said letter, acknowledging the need for keeping the eco-sensitive area of Sindhudurg as pristine as it is and promising to bring the issue of regarding the area as ESA to the notice of the Additional Chief Secretary (Forests) for further action. Hereto annexed and marked Exhibit ‘R’ is a copy of the reply dated 9th February 2011 of the Environment Secretary.
34.The Petitioner also addressed 2 letters to the Hon’ble Minister Mr. Jairam Ramesh, on 17th January 2011 and 21st February 2011, informing the Hon’ble Minister that the Sawantwadi-Dodamarg Corridor fulfils all the criteria laid down in the Sen Committee Report for issue of a notification as an ESA. The Petitioner further requested that the MOEF take immediate steps to protect the said Corridor, which is a biodiversity hotspot and a precious natural heritage, from irreparable damage by notifying the said Corridor as an ESA. Hereto annexed and marked Exhibit ‘S’ and ‘T’ are copies of the Petitioner’s letters dated 17th January 2011 and 21st February 2011, respectively.
35.No response has been received to the aforesaid representations, till date.
Declaration Of Such Exotic And Fragile Ecosystems As ESAsHas Been Successfully Done In The Past
36.By a Notification dated July 25, 2000, objections were invited in respect of notifying of Mahableshwar-Panchgani hill-station in Maharashtra as an ESA. After complying with the requisite procedures, by a further Notification dated January 17, 2001 Mahableshwar-Panchgani was declared as an ESA. The said Notification covers an area of 237.28 square kilometres and provides that a Zonal Master Plan would be prepared to demarcate all the existing forests, green areas, horticultural areas and other environmentally sensitive areas, and no change of land use from green uses would be permitted. Further, regulations were made in respect of industrial units, quarrying and mining and felling of trees. Adequate provisions were also made to encourage development, protection of the hill slopes, tourism, discharge of effluents etc. Hereto annexed and marked as Exhibit ‘U’ is a copy of the Notification declaring Mahableshwar-Panchgani as an ESA.
37.In 2003, Matheran, another hill station in Maharashtra, was declared as an ESA. The said Notification covers an area of 214.73 square kilometres with a 200 m buffer zone. Hereto annexed and marked as Exhibit ‘V’ is a copy of the Notification declaring Matheran as an ESA. Exhibit ‘V1’ is a list of the Flora and Fauna found in Matheran area, which is very meagre compared to the list of Flora and Fauna found in the said Corridor as set out in Exhibit ‘E’ hereto. The Preliminary Notification for declaring Matheran as ESA was issued at the instance of the Supreme Court, passed in an Interlocutory Application made in the matter of T.N. Godavaraman Thirumalpad Vs Union of India.
38.In light of the foregoing, the Petitioner states and submits as under:
(a) First and foremost it is clear that the MOEF has the power and authority to declare ecologically sensitive regions such as the Sawantwadi-Dodamarg Corridor as ESAs, by issuance of appropriate Notifications in that regard.
(b) The declaration of a region as an ESA does not preclude any further development or usage of the resources found there, but merely regulates the same so as to ensure protection and preservation of the ecosystem and the flora and fauna thereat.
(c) Notifications declaring areas as Ecologically Sensitive Areas have been issued in the past in respect of areas which exceeded 200 square kilometres. In the present case the Petitioner is seeking reliefs only in respect of any area admeasuring approximately 35 square kilometres, i.e. the Sawantwadi-Dodamarg Corridor, which notwithstanding its small size is replete with biodiversity and flora and fauna far exceeding, that which is found in Mahableshwar-Panchgani and Matheran, where no wildlife is found unlike in the case of the said Corridor.
(d) Hence, there is no reason for the Respondent No.1 to delay or refrain from declaring the Sawantwadi-Dodamarg Corridor as an ESA.
Legal Provisions Governing Declaration Of A Region As An Ecologically Sensitive Area
39.Article 48-A of the Constitution of India enjoins upon the State an obligation to take steps for protection of the environment and protection and preservation of wildlife and forests. The said obligation, being a Directive Principle, is enforceable through the fundamental rights of the citizens of India, as held by the Hon’ble Supreme Court. Hence, this Hon’ble Court ought to give effect to the said obligation by directing Respondent Nos. 1 and 2 to take appropriate steps to declare the Sawantwadi-Dodamarg Corridor, shown iun the Plan annexed at Exhibit ‘A’ hereto, as an Ecologically Sensitive Area, and thereby protect the rich flora and fauna therein.
40.Section 3(1) and section 3(2)(v) of the Environment Protection Act, 1986 expressly empower the Central Government to adopt all such measures as it deems necessary to protect and improve the quality of the environment and prevent environmental pollution/degradation. It further allows for restriction of areas in which industries, operations or processes or class of industries, operations or processes can be regulated/prohibited.
41.Further, Rule 5(1) of the Environment Protection Rules, 1986 specifies certain criteria such as topographic and climatic features, biodiversity, environmentally compatible land-use, maximum allowable limits of concentration of pollutants, proximity to protected areas, etc. that can be considered while prohibiting or restricting certain operations in different areas. Rule 5(3) further confers power upon the Central Government to issue such a Notification and the Central Government has exercised this power to declare certain regions as ESAs, as is evident from the Notifications in respect of Mahableshwar-Panchgani and Matheran.
42.Section 5C(1) of the Wildlife (Protection) Act, 1992 states that it shall be the duty of the National Board for Wildlife to promote the conservation and development of Wildlife and forests by such measures as it thinks fit. The National Wildlife Action Plan (NWAP) 2002 -2016 indicates that “Areas outside the protected area network are often vital ecological corridor links and must be protected to prevent isolation of fragments of biodiversity which will not survive in the long run. Land and water use politics will need to accept imperative of strictly protecting ecologically fragile habitats and regulating use elsewhere.” The NWAP also indicates that “All identified areas around Protected Areas and wildlife corridors to be declared as ecologically fragile under the Environment Protection Act, 1986,” where Protected Areas are National Parks and Wildlife Sanctuaries. Hereto annexed and marked Exhibit ‘W’ is a copy of the relevant extract from the National Wildlife Action Plan (NWAP) 2002-2016. The Petitioner states that the said NWAP is in the nature of Guidelines, which ought to be complied with as if they were statutory provisions. The Petitioners craves leave to refer to and rely upon the entire National Wild life Action Plan (NWAP) 2002-2016, as and when produced.
43.The MOEF has also framed guidelines for declaration of Eco-Sensitive Zones which are identified areas around National Parks and Wildlife Sanctuaries as well as Wildlife Corridors. The MOEF thus while framing guidelines to facilitate States/Union Territories to declare Eco-Sensitive Zones, has recognised the fact that Wildlife Corridors are also to be treated in the same fashion as Protected Areas around which Eco-Sensitive Zones may be declared. The Petitioner craves leave to and refer to and rely upon the Guidelines for Declaration of Eco-Sensitive Zone, when produced.
44.Further, it is submitted that this Hon’ble Court has in the past exercised its discretionary power to assist in the protection and preservation of Ecologically Sensitive Areas, most notably in the case of Mahableshwar-Panchgani, as evident from the order dated October 19, 2006 passed by a Division Bench of this Hon’ble Court. The Petitioner craves leave to refer to and rely upon the said order dated October 19, 2006 as and when produced.
SUMMARY OF SUBMISSIONS
45.In light of the aforegoing, the Petitioner states and submits as follows:
(A) The Sawantwadi-Dodamarg Corridor is replete with rich biodiversity and flora and fauna, a significant part of which is rare and exotic and only found in the said region. Further, the wildlife found in the said Corridor is of an exotic nature, viz. Animals falling within the list annexed as Scehdule I to the Indian Wildlife Protection Act.
(B) The Sen Committee Report provides the criteria that ought to be fulfilled in order for a particular region to be declared as an Ecologically Sensitive Area.
(C) The Sawantwadi-Dodamarg Corridor is replete with rich biodiversity. Furthermore, several species of plants and animals found in the region are endemic to the said region alone, and some of them are on the endangered list, particularly the rapidly depleting tiger population. The said Corridor forms an integral part of the Sahyadri Konkan Wildlife Corridor, it is an area with intrinsically low resilience, there are sacred groves within the said Corridor and Dabhil and Kalane rivers originate in the area. The said Corridor also has very high rainfall and Terekhol river has its catchment area there. Consequently the Petitioner states and submits that the said Corridor duly satisfies the requirements set out in the Sen Committee Report for being declared as an ESA.
(D) Further, the said ecosystem is fragile and will be unable to sustain the large-scale exploitation being undertaken therein. There is therefore an urgent need for the said Corridor to be declared as an ESA fortwith for the several reasons set out hereinabove.
(E) If the said Corridor is not declared as an ESA forthwith, (rather than waiting for any recommendations that might or might not be made by the WGEEP), the aforesaid indiscriminate mining and felling of trees will continue unabated, and eventually it may be too late to protect and preserve the fragile ecosystem in the said Corridor.
(F) The Central Government has in the past exercised power to take necessary steps for declaring Mahableshwar-Panchgani and Matheran as ESAs. As stated hereinabove the Sawantwadi-Dodamarg Corridor has, a much larger array of biodiversity, flora and fauna, and hence the said protection ought to be afforded to the said Corridor.
(G) This Hon’ble Court has the power to direct the Central Government/MOEF to take necessary steps for declaring the Sawantwadi-Dodamarg Corridor as an ESA, in accordance with Article 48-A of the Constitution of India as well as the provisions of the Environment Protection Act, 1986 and the Rules framed thereunder. Such protection and assistance to the ESAs has been given by the Hon’ble Supreme Court and this Hon’ble Court on several occasions, most notably in the case of Mahableshwar-Panchgani, as aforestated.
46.The Petitioner has not filed any other Petition either before this Hon’ble Court or before the Hon’ble Supreme Court of India with regard to the subject matter of this Petition.
47.The Petitioner has no other alternative or equally efficacious remedy available and the reliefs prayed for in the present Petition, if granted, would be complete.
48.The Petitioner has its office in Mumbai, and the Sawantwadi-Dodamarg Corridor which forms the subject matter of the present Petition is situated in Sindhudurg District in Maharashtra. Hence this Hon’ble Court has jurisdiction to entertain the present Petition.
49.The present Petition is filed in the public interest and no personal interests of the Petitioner are involved.
50.The Petition is declared and verified by Ms. Sumaira Abdulali who is the Managing Trustee of the Petitioner and is fully conversant with the facts of the case and able to depose to the same.
51.The Petitioner will rely upon documents, a list whereof is annexed hereto.
52.The Petitioner has paid a fixed Court fee of Rs. 250/-.
The Petitioner therefore prays :
a) For a declaration that Respondent Nos.1 and 2 have an obligation to protect and improve the environment and to safeguard the forests and wildlife of the country under Articles 48-A and 21 of the Constitution of India, and consequently have the power to declare the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, as an Ecologically Sensitive Area.
b) For a declaration that the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, satisfies the parameters/criteria as set out in the Sen Committee Report, being Exhibit ‘B’ hereto, for declaration as an Ecologically Sensitive Area.
c) For a writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or direction directing the Respondent Nos. 1 and 2 to give effect to and enforce the National Wildlife Action Plan (NWAP) 2002-2016, being Exhibit ‘W’ hereto, and Article 48-A of the Constitution of India by forthwith declaring the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, as an Ecologically Sensitive Area.
d) For a writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or direction:
i. directing the Respondent Nos. 1 and 2 to forthwith take all necessary steps, for issuing the Notification to declare the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, as an Ecologically Sensitive Area.
ii. directing the Respondents herein to restrain any mining activity and/or felling of trees and/or other harmful activity in the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, till such time as appropriate Regulations are framed by way of the aforesaid Notification declaring the said Corridor as an Ecologically Sensitive Area.
e) Pending the hearing and final disposal of this Petition, for an appropriate order or direction:
i. directing the Respondent Nos. 1 and 2 to forthwith take all necessary steps, for issuing the Notification to declare the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, as an Ecologically Sensitive Area.
ii. directing the Respondents herein to restrain any mining activity and/or felling of trees and/or other harmful activity in the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, till such time as appropriate Regulations are framed by way of the aforesaid Notification declaring the said Corridor as an Ecologically Sensitive Area.
f) For ad-interim reliefs in terms of prayer clause (e) above;
g) For costs of this Petition;
h) For such further and other reliefs as this Hon’ble Court may deem fit and proper in the nature and circumstances of the present case.
For Awaaz Foundation
Managing Trustee
Petitioner
Advocates for the Petitioner
VERIFICATION
I, Sumaira Abdulali, Managing Trustee of the Petitioner having my address at 74, New Silver House, New Kantawadi Road, Bandra (West), Mumbai 400 050, do hereby solemnly declare and state that whatever is stated in paras 1 to 43, 46, 49, 50, 52 of the above Petition, is true to my own knowledge and whatever is stated in the remaining paras 44, 45, 47, 48, 51 of the Petition are based on information and belief and I believe the same to be true.
Solemnly declared at Mumbai )
this day of April 2011 ) Before me,
Advocates for the Petitioner
[DS\Mn3\ESA Declaration PIL-final)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS APPELLATE CIVIL JURISIDCTION
WRIT PETITION (PIL) NO. OF 2011
In the matter of Article 226 of the Constitution of India
And
In the matter of declaration of the Sawantwadi-Dodamarg Corridor in Sindhudurg District of Maharashtra as an Ecologically Sensitive Area under the Environment Protection Act 1986, and the Rules framed thereunder.
Awaaz Foundation, a public charitable )
trust, formed and registered under the )
Bombay Public Trust, 1950 and having its )
Registered office at 74, New Silver Home, )
New Kantwadi Road, )
Bandra (W), )
Mumbai 400 050. ) ….Petitioner
Versus
1. Union of India, through the )
Ministry of Environment & Forests, )
Paryavaran Bhavan, CGO Complex, )
Lodhi Road, New Delhi – 110 003. )
2. State of Maharashtra, through )
Secretary, Environment Department, )
and Secretary, Revenue and Forest )
Department, both at Mantralaya, )
Mumbai 400 032 )
3. The Principal Chief Conservator of )
Forests (Wildlife), Maharashtra )
State, Nagpur )
4. The Collector, )
Sindhudurg District, Sindhudurg ) ……. Respondents
TO,
THE HON’BLE CHIEF JUSTICE AND
OTHER HON’BLE PUISNE JUDGES
OF THIS HON’BLE COURT
THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHEWETH:
- The Petitioner is a Non-Governmental Organisation registered under the Bombay Public Trust Act, 1950 and actively engaged in protecting the environment, and has filed several Public Interest Litigations and obtained reliefs from this Hon’ble Court, most notably in respect of illegal felling of trees, sand-mining and noise pollution.
- Respondent No. 1 is the Union of India acting through the Ministry of Environment & Forests (“MOEF”), which has the authority to declare a region as an Ecologically Sensitive Area. . Respondent No. 2 is the State of Maharashtra acting through the Secretary, Environment Department and Secretary, Revenue & Forest Department. Respondent No. 3 is the Chief Conservator of Forests, Nagpur and Respondent No.4 is the Collector of Sindhudurg District.
- The present Petition has been filed interalia seeking an appropriate writ, order or direction from this Hon’ble Court to the Respondents, and particularly the Central Government, to take all necessary steps to declare the Sawantwadi-Dodamarg Corridor in Sindhudurg District in Maharashtra as an Ecologically Sensitive Area on account of its significant bio-diversity reserves, and the apprehended rapid degradation thereof, as was done in the cases of Mahableshwar-Panchgani and Matheran.
A brief overview of the Region (Sindhudurg District and the Sawantwadi-Dodamarg Corridor)
- Sindhudurg is a District in southern Maharashtra bordered on the north by Ratnagiri District, on the south by the State of Goa, on the west by the Arabian Sea and on the east, across the crest of the Western Ghats or Sahyadris, is Kolhapur District. The District of Sindhudurg ad-measures approximately 5,207 square kilometres and has a population of approximately 8,68,852 citizens. Around 74% of the holdings in the District are held by small and marginal farmers and the region is a biodiversity hotspot.
- The Sawantwadi-Dodamarg Corridor, (hereinafter referred to as the “said Corridor"), lies in the southernmost part of Sindhudurg District and covers part of the Western Ghats. It is a narrow strip admeasuring approximately 35 kilometres in length, comprising about 30 villages. The said region forms an integral part of the Sahyadri-Konkan wildlife corridor which connects the Koyna and Radhanagari Wild Life Sanctuaries and Chandoli National Park in Maharashtra with the Wild Life Sanctuaries and National Parks in Goa and Karnataka. A wildlife corridor connects wildlife populations separated by human activities i.e. from one forested patch to another and the Sawantwadi - Dodamarg Corridor in particular facilitates movement of wild animals such as the Asiatic Elephant and the critically endangered Tiger. Hereto annexed and marked as Exhibit ‘A’ is a Map of Sindhudurg District, with the said Corridor marked out thereon, and Exhibit ‘A1’ is a tabular description of certain vital statistics pertaining to the region.
Need for declaring Ecologically Sensitive Areas
- The need for declaring certain special ecologically important sites as Ecologically Sensitive Areas (ESAs) was felt more than 2 decades ago. In or about the year 1999 a Committee chaired by Dr. Pronab Sen, Adviser (Perspective Planning), Planning Commission (hereinafter referred to as the "Sen Committee”), and comprising of various academicians and experts in the environmental field, was appointed by the MOEF to lay down the objective and scientific parameters for identifying ESAs and to evolve an appropriate methodology for regulating various activities in such areas. The Sen Committee, in its Report published in September 2000, laid down certain parameters and criteria which are dealt with more particularly hereinafter. The aforesaid Sen Committee Report was followed by various other Reports submitted by experts commissioned by the Government and in particular by the Proposal for Sahyadri Ecological Sensitive Area prepared by the Sahyadri Ecological Forum c/o Department of Environmental Services, Shivaji University, Kolhapur (hereinafter referred to as the “SESA Report”). The Government has thus formed committee after committee for the purpose; however no suggestions made by the various committees have been implemented. Hereto annexed and marked as Exhibit ‘B’ is a copy of the said Sen Committee Report. The Petitioner craves leave to refer to and rely upon the SESA Report, when produced.
- In March 2010 a Western Ghats Ecology Expert Panel (hereinafter referred to as the "WGEEP"), chaired by Dr. Madhav Gadgil, was constituted by the Government of India to inter alia assess the current status of ecology of the Western Ghats and to demarcate areas within the Western Ghats Region which required to be notified as ESAs. The WGEEP was supposed to submit its report within six months of its constitutions; however the final report has not been submitted till date. And while the said Committee deliberates the issue, the biodiversity in the said Corridor (i.e. Sawantwadi-Dodamarg Corridor) is depleting at a rapid rate as is evident from the facts set out hereinafter. Further, the WGEEP is concerned with the entire Western Ghats Region, while the present Petitioners seek reliefs only in respect of a tiny portion thereof, being the said Corridor.
- The declaration of an area as an ESA does not imply that no development would be permitted in the said area. ESAs in fact to be viewed as areas where human activities will continue but will be prudently regulated under the Environment Protection Act, 1986 and the stipulations contained in the Notification for declaring the area as an ESA. Hence, the declaration of the said Corridor as an ESA would not affect any future development of the area in ways that would hurt local people but would merely regulate the development of the said Corridor so as to ensure that development is environment friendly and people oriented as well as serves to preserve the ecological heritage of that area for the future.
- Furthermore, the notification of ESAs are not just about regulation but of positive promotion of environment friendly development. Regions that are declared as ESAs could benefit from special programmes such as promotion of development of enterprises based on local plant resources. The Gram Panchayats in the area could also receive special benefits and facilities which add to their income by taking advantage of new legal provisions such as charging "collection fees" for biodiversity resources to which they are entitled under the Biological Diversity Act. The aforementioned WGEEP chaired by Dr. Madhav Gadgil, has in fact recognised the above benefits of declaring regions as ESAs in their Interim Summary Report based on a consultation with the Government of Maharashtra on 30th September 2010 and a study tour conducted in October 2010, a copy whereof is hereto annexed and marked as Exhibit ‘C’.
Criteria for declaration of a region as an Ecologically Sensitive Area
10.As stated hereinabove, by an Office Memorandum dated April 6, 1999, the Government of India-Ministry of Environment and Forests constituted the Sen Committee to determine parameters for designating an area as an ESA and to make recommendations to the Government.
11.In light of the above mandate the Sen Committee identified 13 principal parameters of ecological sensitivity falling into three broad categories of ecological significance. The first of the three categories was species related, and defined the characteristics of species which are or may become threatened with extinction. The second category related to ecosystems some of which are essential for the survival of the first category while the rest are critical for maintaining the range and pace of evolution. The third category of ecological sensitivity included geo-morphological conditions which are known to have substantial effect on ecosystems at large. In addition to these primary criteria the Sen Committee also identified seven auxiliary criteria, which though less compelling than the primary criteria, nevertheless merited consideration in the view of the Sen Committee.
12.Without delving into the Sen Committee Report in detail, the Petitioners state that it is relevant to note certain criteria set out therein , and the same have been summarised briefly hereunder:
(i) Endemism-it refers to any species which is exclusively confined to a particular geographical area and occurs nowhere else in the world. Endemic species of plants and animals in the region represent a valuable biological endowment of the area and a loss of endemic species is irreparable. The area of occurrence of an endemic species needs to be protected in its entirety.
(ii) Rarity-a species with a small world population, i.e which although not at present endangered or vulnerable, is at risk.. The survival of a rare species depends upon the habitat remaining undisturbed, as any such disturbance may lead to the species becoming endangered. The entire area where such rare species are found needs to be protected.
(iii) Endangered Species-where a species faces a high risk of extinction in the wild in the near future, due to excessive exploitation, habitat destruction or any other kind of disturbance and unless such factors are urgently checked and reversed, the species will become extinct. In such circumstances it is crucial to protect the entire area which contains such endangered species.
(iv) Wildlife Corridors- Corridors connecting two or more patches of wildlife habitats. They serve various ecological functions such as providing migration route between areas where animals physically cross one another, facilitating habitat supplementation, maintaining a network of protected areas of protected landscapes to allow gene flow between sub-populations etc. Corridors such as the Sawantwadi-Dodamarg Corridor which is the subject matter of the present Petition, must be protected at all costs.
(v) Specialised Ecosystems-a specialised ecosystem possesses a unique combination of ecological features which are conducive to the emergence and perpetuation of a highly intricate and interdependent assemblage of biota. The eco-systems are locations of active and abundant diversification of species and are extremely fragile and must be accorded protection from any disturbance.
(vi) Areas with Intrinsically Low Resilience-ecosystems where any human interference may lead to an imbalance, loss of biodiversity and even extinction of certain species. Such areas must be protected.
(vii) Sacred Groves-Forest areas or patches of natural vegetation were preserved over generations on religious grounds and no human interference was allowed in these areas. Due to the protection accorded, over time these areas because naturalized and gave rise to considerable biological diversity and created a rich ecosystem. It is very necessary that such areas be protected to preserve their rich biodiversity.
(viii) Frontier Forests-these are remnants of primeval natural forests that have remained on the whole relatively undisturbed and are large enough to maintain biological diversity with varying types of species. As these forests are the only remnants of the natural forest ecosystems, they provide conditions for undisturbed organic evolution and speciation, and such forests are irreplaceable. Therefore their loss will endanger their unique ecological and evolutionary processes.
(ix) Origins of Rivers- A mountain, hill or spring from where a water stream originates is the origin of a river and is often a medium of support of various life forms ranging from bacteria to simple forms of plants and animal life, including fish, amphibians, birds and mammals. Disruption of a river system can have ecological consequences which can be so vast that they cannot be predicted. The whole area including channels, fissures and other features intrinsic to re-charging of a water source, has to be protected.
13.The Petitioner states and submits that the Sawantwadi-Dodamarg Corridor is one such ESA which satisfies the aforesaid criteria as well as auxiliary criteria like being an Upper Catchment Area and High Rainfall Area, and merits protection. The diverse flora and fauna and the rich biodiversity of the said Corridor, as well as the urgent need for its protection, are dealt with more particularly hereinbelow.
The Sawantwadi-Dodamarg Corridor Qualifies As an Ecologically Sensitive Area
14.The aforesaid criteria set out in the Sen Committee Report are duly satisfied in respect of the said Corridor. The said Corridor is replete with rare species of animals, birds, plants, and trees and the same must be duly accorded protection by declaring it as an ESA. Hereto annexed and marked Exhibit ‘D’ is a table showing the manner in which the said Corridor complies with the various criteria set down in the Sen Committee Report.
15.In the year 2010 a Rapid Biodiversity Assessment was carried out in respect of Village Asaniye, which is one of the villages in the said Corridor by the Applied Environmental Research Foundation (AERF), Pune. As there was a proposal to issue mining licences in the said area, on the invitation of the villagers a detailed survey was carried out of the various plant and animal species in the said area. The Assessment Report expressly sets out the International Union for Conservation of Nature (“IUCN”) Status in respect of the wildlife in the said area, and it is pertinent to note that a significant number of species of wildlife were categorised as "Vulnerable", "Endangered" and "Near threatened". The Report ends with the conclusion inter alia that the said area is an Ecologically Sensitive Area and a last refuge of biodiversity in the Sahyadris, that if mining is allowed in the area, an important wildlife corridor will be destroyed, wildlife will enter human habitation and this in turn will increase man-animal conflicts. The Petitioner craves leave to refer to and rely upon the Rapid Biodiversity Assessment Report of Village Asaniye which forms a part of the said Corridor, when produced.
16.The said Report further showed that there were approximately 303 species of plants, shrubs and trees in the said Corridor, several of which were of crucial medicinal value. Consequently, the Petitioner states that if mining activity and indiscriminate felling of trees is permitted in the said Corridor, as is being done in the manner more particularly set out hereinafter, then these crucial trees, plants and herbs will be completely destroyed and lost forever.
17.The Forest Department has also issued a detailed list of the various trees, shrubs, climbers, medicinal plants as well as wild animals and birds that are found in the Sawantwadi region, a copy whereof is hereto annexed and marked as Exhibit ‘E’. The said list shows that there are approximately 240 types of plants in the said Corridor as well as 18 species of wildlife (some of which such as the Bengal Tiger being in serious danger of extinction) and 13 species of birds. Also Annexed and marked Exhibit ‘F’ is a copy of the map showing the areas where wildlife is present in the Sawantwadi region.
18.The strong presence of wildlife, including certain animals which are nearing extinction, is evident from a Reply to an RTI Application issued by the Office of the Range Forest Officer – Dodamarg on June 22, 2010, which sets out a list of wildlife found in the region as well as the details of attacks due to wild elephants and other wildlife conflict with humans since 2005. It is significant to note that there are a large number of tiger attacks in the said list, thereby clearly showing that the region has a sizeable tiger population, and on that ground alone the said region must be declared as an ESA. Hereto annexed and marked as Exhibit ‘G’ is a copy of the aforesaid Reply issued by the Range Forest Officer – Dodamarg on June 22, 2010 and Exhibit ‘H’ is a map showing the cases where cattle have been killed by wild animals in the Sawantwadi region.
19.The Petitioner submits that is very clear that if the region is continued to be exploited in the manner more particularly set out hereinafter, the ecosystem will be completely destroyed and the few tigers that are left in the region will be either forced to migrate elsewhere or will die out. As stated hereinabove, if for no other reason, the said Corridor ought to be declared as an ESA solely for the purpose of protecting the fragile tiger population in our country, which is nearing extinction.
Need for the Sawantwadi-Dodamarg Corridor to Be Declared As an ESA0
20.The entire Western Ghats region, and more particularly the said Corridor, is environmentally sensitive and ecologically significant. However, there is little enforcement of environmental protection laws in the region. On the contrary permissions are being granted for mining leases and for indiscriminate felling of trees in a manner that will quickly deplete the rich biodiversity of the region and will result in the same being heavily exploited.
21.There is a pressing need for declaration of the said Corridor as an ESA, and the same is inter alia evident from the following:
(a) As set out hereinabove the said Corridor contains rich biodiversity and diverse flora and fauna, some of which are in danger of becoming extinct.
(b) The said Corridor has a strong tiger population, and it is manifestly necessary and proper and in the interest of preserving the aforesaid tiger population that the said area be declared an ESA. The rapid exploitation of the area is depleting the ecosystem and the habitat of the Tigers and forcing the tiger population as well as leopards and elephants to venture out of their habitat and come into conflict with humans. The invariable consequence of such human interaction is that the tiger, elephant or leopard is harmed or killed by the villagers or humans and cattle are attacked and crops are damaged.
(c) At present there are no clearly defined strategy for protecting the said Corridor, and by the time recommendations are received by the State Government, if at all, and steps are taken, severe degradation and depletion of the natural reserves in the said Corridor will have occurred.
(d) The said Corridor is a natural ecosystem which acts as a life support system for the local residents as well as for the adjacent coastal belts. The implications of deforestation and land degradation are already evident and if these ecologically sensitive systems are disrupted further, the economic losses due to unsustainable development will be immense and the restoration thereof will become financially unviable.
(e) Pertinently, the villagers in the said Corridor are in favour of the declaration of the said Corridor as an ESA, as they feel that the same would protect the fragile ecosystem and would preserve the flora and fauna therein. Towards this end submissions have been made by 22 villages to have the said area declared as an ESA, especially in light of the danger to the tiger population. Hereto annexed and marked as Exhibit ‘I’ is a copy of a letter addressed by the Sarpanch of Village Asaniye to the Prime Minister of India on February 5, 2010 seeking the PMO’s intervention for declaring the area as an Ecologically Sensitive Area. The Petitioner craves leave to refer to and rely upon the copies of the representations made by 22 villages in respect of declaring the said Corridor as an ESA, when produced.
(f) In response to the Sarpanch’s letter to the Prime Minister, a joint inspection of Village Asaniye was taken up by the Department of Geology and Mining, Government of Maharashtra and the Ministry of Mines, Government of India during which it was observed that the area visited was covered thickly and densely with lush green trees and plants with some medicinal and rare plants also being located in the area. It was also noted that the area contained a major water fall as well as small water falls, ponds and rivulets, and that tigers, leopards, black bear, elephants, wild buffaloes as well as a variety of birds were found in that area which needed to be protected. Hereto annexed and marked Exhibit ‘J’ is a copy of the Field Observations and Note of Joint Inspection prepared by the Directorate of Geology and Mining, Government of Maharashtra.
(g) The ecosystem in the said Corridor is inherently fragile due to its special nature and small size. These highly specialised and fragile ecosystems have an intrinsically low resilience to environmental disturbance from a variety of human activities. The rapid exploitation will cause severe damage to the highly sensitive ecosystem resulting in rapid deterioration of the flora and fauna in the region.
(h) In a detailed Report on the "CURRENT ECOLOGICAL STATUS AND IDENTIFICATION OF POTENTIAL ECOLOGICALLY SENSITIVE AREAS IN THE NORTHERN WESTERN GHATS" submitted by the Institute of Environment Education and Research, (hereinafter referred to as the “IEER Report”), the Institute has expressly recorded that corridors such as the Sawantwadi-Dodamarg Corridor are of immense value, and must be protected at all costs. Hereto annexed and marked as Exhibit ‘K’ is a copy of the said IEER Report published in October 2010.
(i) In the said IEER Report (at page 108 thereof) it was further concluded that such corridors are of great importance to the local people, as once they are disrupted predators and herbivores are forced into the agricultural lands and human settlements. This in turn leads to serious human-wildlife conflicts which have catastrophic effects, most often for the wildlife concerned.
Consequences of not declaring the Sawantwadi-Dodamarg Corridor as an ESA
22.The Petitioner states and submits that inter alia for the aforesaid reasons it is crucial that the said Corridor be declared as an ESA. If the same is not done, the consequences will be catastrophic as the rich biodiversity in the region, which is already depleted, will be completely destroyed.
Mining Activity
23.In recent months several mining leases have been issued for carrying out mining activity in this fragile Sawantwadi-Dodamarg Corridor. The said mining leases have been given without any application of mind as to the fragile nature of the ecosystem in the said Corridor. From time to time various authorities had recorded their objection to the mining leases being granted on the ground that the said region was replete with wildlife and were an important conservation zone, but nonetheless the said licences have been issued by the Ministry of Mines, Government of India, in complete disregard of the aforesaid recommendations of the various authorities. The Petitioner craves leave to refer to rely upon the various Proposals in respect of the mining leases, and the recommendations in that regard, as and when produced.
24.As recently as on March 19, 2010 the Principal Chief Conservator of Forests (Wildlife), Maharashtra Respondent No.3 abovenamed, was pleased to issue an opinion recommending that new mining activities in the ecologically fragile area of Sawantwadi would be a severely regressive step with wide environmental ramifications and would spell doom for flora and fauna conservation efforts. In the said Opinion the Respondent No.3 categorically records that “the project would result in an irremediable and permanent mutilation of wildlife habitat". In the said Opinion it was further recorded that tigers had been observed in the area and there were cases of tiger and elephant attacks. It was further noted that on account of the increase in mining activity, these animals were now no longer being found in the vicinity of the mining areas. The aforesaid clearly shows that while the said Corridor is replete with wild animals, flora and fauna, the mining activities are severely hampering the presence of wildlife. Hereto annexed and marked as Exhibit ‘L’ is a copy of the aforesaid Opinion of the Respondent No.3 dated March 19, 2010.
25.The IEER Report (at page 45 thereof) has expressly concluded that major mining concessions that have been granted will have a serious impact on local biodiversity, no steps for mitigation of the damage caused to biodiversity is being taken and most abandoned mined areas are left for years and are covered by weeds which cannot support any plant life aside from the most general species. It was concluded that the mined areas lead to severe impediments for many species to move between patches of the forest and further completely destroyed the flora and fauna in the region.
Indiscriminate Felling of Trees
26.The Petitioner states and submits that if the Corridor is not declared as an ESA, the rapid development and exploitation thereof will continue unabated. In such an event there will be severe damage caused to the ecosystem and indiscriminate felling of trees and destruction of shrubs, bushes, plants etc.
27.In the preceding two years more than 18 lakh trees have been destroyed/felled in Sindhudurg District. The aforesaid information was obtained from the Tree Authority, Dodamarg, in reply to an RTI Application filed by one Mr. Sandeep Sawant. In fact there have been approximately 18 lakh trees felled in the last two years in the Dodamarg Forest Circle alone, which is part of the said Corridor. Hereto annexed and marked as Exhibit ‘M’ is a copy of the aforesaid reply to the said RTI Application, along with its English translation.
28.Recently a proposal was made to the Principal Chief Conservator of Forests, Maharashtra for diversion of private forest land in Village Kesari in Sawantwadi, for the purpose of mining of iron ore and other related activities. The said proposal was rightly rejected by the Principal Chief Conservator of Forests on account of the fact that the project required the removal of approximately 75,410 trees. In the said rejection it was expressly noted that the project area is in a fragile ecosystem where mining and large-scale concentrated tree felling would be "highly damaging to the terrain” and that it would adversely affect wildlife conservation. Hereto annexed and marked as Exhibit ‘N’ is a copy of the Principal Chief Conservator of Forests’ rejection of the proposal for diversion of private forest land. Despite strong opposition from the Forest Department, however open cast iron ore mining has commenced in the village of Kalne and the same has destroyed vast areas of forest, disrupted movement of wildlife and affected water sources. The Petitioner submits that if one mining project required destruction of approximated 75,000 trees, the 32 proposed mining leases would result in over 2 crore trees being destroyed, thus leading to complete destruction of some of the best forests in the Western Ghats region.
29.It is pertinent to note that the Hon’ble Supreme Court has expressly recognized the need to protect forest areas such as the said Corridor and to prevent any exploitation and degradation thereof. In the landmark case of T.N. Godavaraman Thirumalpad vs. Union of India the Hon’ble Supreme Court had been pleased to direct that all forest land in the record of the Government, irrespective of ownership, would be deemed to be forests and must be protected. Hereto annexed and marked as Exhibit ‘O’ is a copy of the aforesaid order passed by the Hon’ble Supreme Court.
30.The Government of Maharashtra had in its initiative to boost tourism industry in the State, proposed a New Package Scehme of Incentives for Tourism Projects. Under the said Scheme, the entire Sindhudurg District was to be developed as a “Special Tourism Area identified by the State Government”. Pursuant to the declaration of Sindhudurg District as a Tourism District, the State Government has passed a Resolution dated 26th April 2010 to ensure that no chemical or hazardous industry would be permitted in the said District, in order to give more emphasis to protection of environment along with tourism development. The Petitioner craves leave to refer to and rely upon the Resolutions passed by the State Government for declaration of Tourist Areas along with Annexures thereto which list out the Industries to be permitted therein as well as Industries which may be permitted case-wise (mining does not figure in either of the lists).
31.The Minister in Charge of MOEF, Mr. Jairam Ramesh also addressed a letter dated 18th October 2010 to Mr. Ashok Chavan, the then Chief Minister of Maharashtra State, enclosing a news item which had appeared in the Times of India of 10th October 2010, expressing the greatest concern regarding the news reported in the news item and requesting the Hon’ble Chief Minister to review the 49 mining leases approved by the State Government. The Hon’ble Minister thereafter once again vide his letter dated 29th November 2010 requested Mr. Prithviraj Chavan, the present Chief Minister to review the mining leases. Hereto annexed and marked Exhibits ‘P’ and ‘P1’ are the letters dated 18th October 2010 and 29th November 2010, respectively.
32.The Petitioner has time and again expressed her concern about the bauxite and iron ore mining licenses being granted in Sindhudurg. The Petitioner was therefore invited for a meeting which was held in the office of the Environment Secretary, Government of Maharashtra Ms. Valsa Nair Singh, on 24th January 2011. At the said meeting the Petitioner was informed that there were 54 operational mines in Sindhudurg (though the Petitioner is aware only of 5), that the Ministry of Mines was the proper authority to take action or to monitor the said mines and that the State Government was unable to recommend ESA status for the said Corridor to the Government of India since there was delay on the part of the Collector, Sindhudurg (Respondent No.4 abovenamed) in forwarding the Gram Sabha Resolutions from 22 villages requesting declaration of their area as ESA. The Petitioner has immediately on the next day, addressed a letter to the Environment Secretary, setting down what transpired in the meeting and requesting the Hon’ble Secretary to urge the Respondent No.4 to immediately forward the Gram Sabha Resolutions so that they could be acted upon for protection of the Sindhudurg area from environmental degradation and devastation of the traditional livelihood of the villagers. Hereto annexed and marked Exhibit ‘Q’ is the email of the Petitioner dated 25th January 2011 to the Environment Secretary.
33.The Environment Secretary replied to the said letter, acknowledging the need for keeping the eco-sensitive area of Sindhudurg as pristine as it is and promising to bring the issue of regarding the area as ESA to the notice of the Additional Chief Secretary (Forests) for further action. Hereto annexed and marked Exhibit ‘R’ is a copy of the reply dated 9th February 2011 of the Environment Secretary.
34.The Petitioner also addressed 2 letters to the Hon’ble Minister Mr. Jairam Ramesh, on 17th January 2011 and 21st February 2011, informing the Hon’ble Minister that the Sawantwadi-Dodamarg Corridor fulfils all the criteria laid down in the Sen Committee Report for issue of a notification as an ESA. The Petitioner further requested that the MOEF take immediate steps to protect the said Corridor, which is a biodiversity hotspot and a precious natural heritage, from irreparable damage by notifying the said Corridor as an ESA. Hereto annexed and marked Exhibit ‘S’ and ‘T’ are copies of the Petitioner’s letters dated 17th January 2011 and 21st February 2011, respectively.
35.No response has been received to the aforesaid representations, till date.
Declaration Of Such Exotic And Fragile Ecosystems As ESAsHas Been Successfully Done In The Past
36.By a Notification dated July 25, 2000, objections were invited in respect of notifying of Mahableshwar-Panchgani hill-station in Maharashtra as an ESA. After complying with the requisite procedures, by a further Notification dated January 17, 2001 Mahableshwar-Panchgani was declared as an ESA. The said Notification covers an area of 237.28 square kilometres and provides that a Zonal Master Plan would be prepared to demarcate all the existing forests, green areas, horticultural areas and other environmentally sensitive areas, and no change of land use from green uses would be permitted. Further, regulations were made in respect of industrial units, quarrying and mining and felling of trees. Adequate provisions were also made to encourage development, protection of the hill slopes, tourism, discharge of effluents etc. Hereto annexed and marked as Exhibit ‘U’ is a copy of the Notification declaring Mahableshwar-Panchgani as an ESA.
37.In 2003, Matheran, another hill station in Maharashtra, was declared as an ESA. The said Notification covers an area of 214.73 square kilometres with a 200 m buffer zone. Hereto annexed and marked as Exhibit ‘V’ is a copy of the Notification declaring Matheran as an ESA. Exhibit ‘V1’ is a list of the Flora and Fauna found in Matheran area, which is very meagre compared to the list of Flora and Fauna found in the said Corridor as set out in Exhibit ‘E’ hereto. The Preliminary Notification for declaring Matheran as ESA was issued at the instance of the Supreme Court, passed in an Interlocutory Application made in the matter of T.N. Godavaraman Thirumalpad Vs Union of India.
38.In light of the foregoing, the Petitioner states and submits as under:
(a) First and foremost it is clear that the MOEF has the power and authority to declare ecologically sensitive regions such as the Sawantwadi-Dodamarg Corridor as ESAs, by issuance of appropriate Notifications in that regard.
(b) The declaration of a region as an ESA does not preclude any further development or usage of the resources found there, but merely regulates the same so as to ensure protection and preservation of the ecosystem and the flora and fauna thereat.
(c) Notifications declaring areas as Ecologically Sensitive Areas have been issued in the past in respect of areas which exceeded 200 square kilometres. In the present case the Petitioner is seeking reliefs only in respect of any area admeasuring approximately 35 square kilometres, i.e. the Sawantwadi-Dodamarg Corridor, which notwithstanding its small size is replete with biodiversity and flora and fauna far exceeding, that which is found in Mahableshwar-Panchgani and Matheran, where no wildlife is found unlike in the case of the said Corridor.
(d) Hence, there is no reason for the Respondent No.1 to delay or refrain from declaring the Sawantwadi-Dodamarg Corridor as an ESA.
Legal Provisions Governing Declaration Of A Region As An Ecologically Sensitive Area
39.Article 48-A of the Constitution of India enjoins upon the State an obligation to take steps for protection of the environment and protection and preservation of wildlife and forests. The said obligation, being a Directive Principle, is enforceable through the fundamental rights of the citizens of India, as held by the Hon’ble Supreme Court. Hence, this Hon’ble Court ought to give effect to the said obligation by directing Respondent Nos. 1 and 2 to take appropriate steps to declare the Sawantwadi-Dodamarg Corridor, shown iun the Plan annexed at Exhibit ‘A’ hereto, as an Ecologically Sensitive Area, and thereby protect the rich flora and fauna therein.
40.Section 3(1) and section 3(2)(v) of the Environment Protection Act, 1986 expressly empower the Central Government to adopt all such measures as it deems necessary to protect and improve the quality of the environment and prevent environmental pollution/degradation. It further allows for restriction of areas in which industries, operations or processes or class of industries, operations or processes can be regulated/prohibited.
41.Further, Rule 5(1) of the Environment Protection Rules, 1986 specifies certain criteria such as topographic and climatic features, biodiversity, environmentally compatible land-use, maximum allowable limits of concentration of pollutants, proximity to protected areas, etc. that can be considered while prohibiting or restricting certain operations in different areas. Rule 5(3) further confers power upon the Central Government to issue such a Notification and the Central Government has exercised this power to declare certain regions as ESAs, as is evident from the Notifications in respect of Mahableshwar-Panchgani and Matheran.
42.Section 5C(1) of the Wildlife (Protection) Act, 1992 states that it shall be the duty of the National Board for Wildlife to promote the conservation and development of Wildlife and forests by such measures as it thinks fit. The National Wildlife Action Plan (NWAP) 2002 -2016 indicates that “Areas outside the protected area network are often vital ecological corridor links and must be protected to prevent isolation of fragments of biodiversity which will not survive in the long run. Land and water use politics will need to accept imperative of strictly protecting ecologically fragile habitats and regulating use elsewhere.” The NWAP also indicates that “All identified areas around Protected Areas and wildlife corridors to be declared as ecologically fragile under the Environment Protection Act, 1986,” where Protected Areas are National Parks and Wildlife Sanctuaries. Hereto annexed and marked Exhibit ‘W’ is a copy of the relevant extract from the National Wildlife Action Plan (NWAP) 2002-2016. The Petitioner states that the said NWAP is in the nature of Guidelines, which ought to be complied with as if they were statutory provisions. The Petitioners craves leave to refer to and rely upon the entire National Wild life Action Plan (NWAP) 2002-2016, as and when produced.
43.The MOEF has also framed guidelines for declaration of Eco-Sensitive Zones which are identified areas around National Parks and Wildlife Sanctuaries as well as Wildlife Corridors. The MOEF thus while framing guidelines to facilitate States/Union Territories to declare Eco-Sensitive Zones, has recognised the fact that Wildlife Corridors are also to be treated in the same fashion as Protected Areas around which Eco-Sensitive Zones may be declared. The Petitioner craves leave to and refer to and rely upon the Guidelines for Declaration of Eco-Sensitive Zone, when produced.
44.Further, it is submitted that this Hon’ble Court has in the past exercised its discretionary power to assist in the protection and preservation of Ecologically Sensitive Areas, most notably in the case of Mahableshwar-Panchgani, as evident from the order dated October 19, 2006 passed by a Division Bench of this Hon’ble Court. The Petitioner craves leave to refer to and rely upon the said order dated October 19, 2006 as and when produced.
SUMMARY OF SUBMISSIONS
45.In light of the aforegoing, the Petitioner states and submits as follows:
(A) The Sawantwadi-Dodamarg Corridor is replete with rich biodiversity and flora and fauna, a significant part of which is rare and exotic and only found in the said region. Further, the wildlife found in the said Corridor is of an exotic nature, viz. Animals falling within the list annexed as Scehdule I to the Indian Wildlife Protection Act.
(B) The Sen Committee Report provides the criteria that ought to be fulfilled in order for a particular region to be declared as an Ecologically Sensitive Area.
(C) The Sawantwadi-Dodamarg Corridor is replete with rich biodiversity. Furthermore, several species of plants and animals found in the region are endemic to the said region alone, and some of them are on the endangered list, particularly the rapidly depleting tiger population. The said Corridor forms an integral part of the Sahyadri Konkan Wildlife Corridor, it is an area with intrinsically low resilience, there are sacred groves within the said Corridor and Dabhil and Kalane rivers originate in the area. The said Corridor also has very high rainfall and Terekhol river has its catchment area there. Consequently the Petitioner states and submits that the said Corridor duly satisfies the requirements set out in the Sen Committee Report for being declared as an ESA.
(D) Further, the said ecosystem is fragile and will be unable to sustain the large-scale exploitation being undertaken therein. There is therefore an urgent need for the said Corridor to be declared as an ESA fortwith for the several reasons set out hereinabove.
(E) If the said Corridor is not declared as an ESA forthwith, (rather than waiting for any recommendations that might or might not be made by the WGEEP), the aforesaid indiscriminate mining and felling of trees will continue unabated, and eventually it may be too late to protect and preserve the fragile ecosystem in the said Corridor.
(F) The Central Government has in the past exercised power to take necessary steps for declaring Mahableshwar-Panchgani and Matheran as ESAs. As stated hereinabove the Sawantwadi-Dodamarg Corridor has, a much larger array of biodiversity, flora and fauna, and hence the said protection ought to be afforded to the said Corridor.
(G) This Hon’ble Court has the power to direct the Central Government/MOEF to take necessary steps for declaring the Sawantwadi-Dodamarg Corridor as an ESA, in accordance with Article 48-A of the Constitution of India as well as the provisions of the Environment Protection Act, 1986 and the Rules framed thereunder. Such protection and assistance to the ESAs has been given by the Hon’ble Supreme Court and this Hon’ble Court on several occasions, most notably in the case of Mahableshwar-Panchgani, as aforestated.
46.The Petitioner has not filed any other Petition either before this Hon’ble Court or before the Hon’ble Supreme Court of India with regard to the subject matter of this Petition.
47.The Petitioner has no other alternative or equally efficacious remedy available and the reliefs prayed for in the present Petition, if granted, would be complete.
48.The Petitioner has its office in Mumbai, and the Sawantwadi-Dodamarg Corridor which forms the subject matter of the present Petition is situated in Sindhudurg District in Maharashtra. Hence this Hon’ble Court has jurisdiction to entertain the present Petition.
49.The present Petition is filed in the public interest and no personal interests of the Petitioner are involved.
50.The Petition is declared and verified by Ms. Sumaira Abdulali who is the Managing Trustee of the Petitioner and is fully conversant with the facts of the case and able to depose to the same.
51.The Petitioner will rely upon documents, a list whereof is annexed hereto.
52.The Petitioner has paid a fixed Court fee of Rs. 250/-.
The Petitioner therefore prays :
a) For a declaration that Respondent Nos.1 and 2 have an obligation to protect and improve the environment and to safeguard the forests and wildlife of the country under Articles 48-A and 21 of the Constitution of India, and consequently have the power to declare the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, as an Ecologically Sensitive Area.
b) For a declaration that the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, satisfies the parameters/criteria as set out in the Sen Committee Report, being Exhibit ‘B’ hereto, for declaration as an Ecologically Sensitive Area.
c) For a writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or direction directing the Respondent Nos. 1 and 2 to give effect to and enforce the National Wildlife Action Plan (NWAP) 2002-2016, being Exhibit ‘W’ hereto, and Article 48-A of the Constitution of India by forthwith declaring the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, as an Ecologically Sensitive Area.
d) For a writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or direction:
i. directing the Respondent Nos. 1 and 2 to forthwith take all necessary steps, for issuing the Notification to declare the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, as an Ecologically Sensitive Area.
ii. directing the Respondents herein to restrain any mining activity and/or felling of trees and/or other harmful activity in the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, till such time as appropriate Regulations are framed by way of the aforesaid Notification declaring the said Corridor as an Ecologically Sensitive Area.
e) Pending the hearing and final disposal of this Petition, for an appropriate order or direction:
i. directing the Respondent Nos. 1 and 2 to forthwith take all necessary steps, for issuing the Notification to declare the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, as an Ecologically Sensitive Area.
ii. directing the Respondents herein to restrain any mining activity and/or felling of trees and/or other harmful activity in the Sawantwadi-Dodamarg Corridor, shown in the Plan annexed at Exhibit ‘A’ hereto, till such time as appropriate Regulations are framed by way of the aforesaid Notification declaring the said Corridor as an Ecologically Sensitive Area.
f) For ad-interim reliefs in terms of prayer clause (e) above;
g) For costs of this Petition;
h) For such further and other reliefs as this Hon’ble Court may deem fit and proper in the nature and circumstances of the present case.
For Awaaz Foundation
Managing Trustee
Petitioner
Advocates for the Petitioner
VERIFICATION
I, Sumaira Abdulali, Managing Trustee of the Petitioner having my address at 74, New Silver House, New Kantawadi Road, Bandra (West), Mumbai 400 050, do hereby solemnly declare and state that whatever is stated in paras 1 to 43, 46, 49, 50, 52 of the above Petition, is true to my own knowledge and whatever is stated in the remaining paras 44, 45, 47, 48, 51 of the Petition are based on information and belief and I believe the same to be true.
Solemnly declared at Mumbai )
this day of April 2011 ) Before me,
Advocates for the Petitioner
[DS\Mn3\ESA Declaration PIL-final)
