THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
W.P.Nos. 18709, 22129 & 22313 of 2022
COMMON ORDER:
In all the three writ petitions, the petitioners are different
but the issue is similar. Therefore all the three writ petitions are
heard together and this common and consolidated order is
passed. For the sake of convenience and ready reference the
facts of the case in W.P.No.18709 of 2022 are taken for
discussion.
2. In this writ petition, the petitioner's society is seeking a
writ of mandamus declaring the action of the respondent No.2
in not according final allotment for extraction of sand from the specified sand bearing areas (SBA), Manaspally, Eturunagaram- I and Eturunagaram-II, which are identified in the Godavari River and in-principle allotment made in favour of respondent No.4 vide proceedings dated 17.12.2020 on the alleged ground that the subject sand bearing areas fall within the Eco-Sensitive Zone and that they are within 10 Kilometers radius from the notified area, as illegal, arbitrary and consequently to direct the respondents, particularly the respondent No.2 to accord final 2 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 allotment for extraction of sand from the specified sand bearing areas i.e., SBA, Manaspally, Eturunagaram-I and Eturunagaram-II and to pass such other order or orders.
3. Brief facts leading to the filing of the present writ petition are that the petitioner is a society registered under the provisions of Telangana Co-operative Societies Act of 1964 and is represented by its President. Exercising powers conferred under Section 15(1) of Mines and Minerals (Development and Regulation) Act, 1957, the Governor of Telangana, in supersession of all the earlier orders issued in the composite State of Andhra Pradesh and in accordance with the new Sand Mining Policy-2014 for the State of Telangana, made rules to regulate the Mining and Transportation of sand in the State of Telangana. The said Rules are called new Telangana State Sand Mining Rules, which were published in G.O.Ms.No.3, Industries and Commerce (Mines-I) Department dated 08.01.2015; Rule 2 deals with allocation of specified sand bearing areas located partially/fully in scheduled areas shall be as per the Panchayat Extension to Scheduled Areas (PESA) Rules, 2011. Since, the specified sand bearing areas of Manaspally, Eturunagaram-I and Eturunagaram-II which are subject matter of the present 3 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 writ petition are located in the scheduled area, for the purpose of allocation of the said sand bearing areas should be as per the PESA Rules, 2011, it is pertinent to mention here that in the case of sand reaches falling partly or fully in Scheduled Areas, Project Officer, ITDA concerned shall be one of the member to the District Level Sand Committee (DLSC) which is headed by the District Collector as Chairman. It is submitted that since the subject sand bearing areas are located in notified Scheduled Area, the prospecting license or Mining lease for extraction of sand, which is a Minor mineral should be as per the Rule 7 of Panchayats Extension to Scheduled Areas (PESA) Rules, 2011 and that the subject sand bearing areas are located in the scheduled areas, the petitioner's society which is consisting of ST members has made an application for grant of prospective license or mining lease for extraction of sand (Minor Mineral) in their scheduled area; and the said application was referred to concerned Gram Panchayat for consideration as per the rules. It is submitted that the concerned Gram Panchayat has considered the application under the Gramsabha as per rule 2(ii) and appropriate resolutions have been passed by the Gramsabha under Rule 4 of the PESA Rules-2011. Thereafter, 4 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 the District Level Sand Committee (DLSC for short) has obtained joint inspection reports from the Ground Water, Irrigation, Revenue and Mines & Geology Departments in respect of the subject Sand Bearing areas amongst others. Consequently, the respondent No.2 issued proceedings No.33/Sand/2019, dated 17.12.2020 making in principle allotment of sand reaches to respondent No.4 with a direction to follow the PESA Rules, 2011 and the guidelines for sale of sand that the final allotment order in respect of the sand reaches will be issued in its favour after submission of Environmental Clearance (EC), Consent for Establishment (CFE) and Consent for Operation (CFO) for extraction of sand. However, on the ground that SBA is falling within Eco-Sensitivity Zone of Eturunagaram Wild Life Sanctuary, the application of the petitioner's society has not been acceded to and the final allotment proceedings have not been issued. It is submitted that the respondent No.5 has taken an objection that the area in which the sand mining is proposed to be carried out by the petitioner's society, is falling within Eco-Sensitivity Zone of Eturunagaram Wild Life Sanctuary, the respondent No.2 is not 5 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 issuing the final allotment proceedings to the petitioner's society.
4. It is submitted that in respect of certain patta lands in the same area, the final approval order was not granted in favour of pattadars to decaste the sand from their patta lands and the Assistant Director of Mines and Geology addressed a letter to the District Forest Officer, Mulugu on 24.12.2021 stating that the Eco-Sensitivity Zone notification has to be issued after a draft publication from the Ministry of Forest, Environment and Climate Change (MoEFC) under Section 3 of the Environment Protection Rules, 1986 and even after draft publication is issued, period of 60 days is granted to invite objections, if any and none of these areas under question have been notified so far and that there is not even a proposal sent by the District Forest Officer from District Level seeking to notify the subject areas under Eco-Sensitivity Zone. It was also informed that there was a meeting of a Eco-Sensitivity Committee on 16.12.2021 under the Chairmanship of District Collector, Mulugu and deliberations were made to include certain habitations to be part of Eco-Sensitivity Zone area, but Manaspally and Eturunagaram-I & Eturunagaram-II are not 6 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 made part of the villages under consideration for notification under the Eco-Sensitive Zone and after considering the geo- coordinates included in the said proposal, the committee has finally proposed inclusion of 33 villages, excluding the subject villages from the list and the Assistant Director of Mines and Geology Department further requested the District Forest Officer not to stop the sand mining in the above mentioned area. It is informed that the Mining Department was resuming operations, as the Forest Department has no Locus Standi to declare Eco- Sensitivity Zone even without sending the draft.
5. Similarly, M/s.TSMDC/respondent No.4 herein also addressed a letter dated 17.01.2022 to the District Collector, Mulugu, informing that the Forest officials are interfering with the sand de-casting operations on the alleged grounds that the subject areas are falling under the Eco-Sensitivity Zone and that de-casting of sand from patta lands is purely time bound action to make agricultural land fit for agriculture. According to the TSMDC, the area is not notified as a Eco-Sensitivity Zone or atleast there is no draft map available in the public domain. However, when no action was taken thereon, some of the pattadars of the lands in the subject area had approached this 7 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 Court in W.P.No.10774 of 2022 and vide orders dated 26.02.2022, this Court had allowed the same with certain conditions. It is submitted that thereafter, the Forest Department had challenged the said order before the Division Bench of this Court and that the Division Bench has upheld the order of the learned single judge and hence, the finding of the learned single judge that the subject land is not falling within Eco-Sensitive Zone has been confirmed by this Court.
6. Learned counsel for the petitioner submitted that since the respondent No.5 is insisting that the Eco-Sensitivity Zone clearance certificate has to be obtained and due to this condition, the respondent Nos.1 to 4 are not able to make the final allotment for de-casting of sand from the sand bearing areas, the petitioner's society is also seeking the similar relief as granted to the petitioners in W.P.No.10774 of 2022.
7. Learned Government Pleader for the respondent Nos.1 to 3 have filed their counter affidavit stating under:
(i) The Assistant Director of Mines and Geology, Mulugu, vide letters dated 28.09.2020 and 12.10.2020 has addressed the District Forest Officer, Mulugu District, stating that as per the instructions of District Collector, Mulugu, the joint inspection team comprising of the Revenue, Irrigation, Ground Water, Agriculture and Mines & Geology Departments have 8 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 identified potential sand bearing areas and also patta lands for de-casting. A list of the said areas were furnished to the office of the District Forest Officer, Mulugu District and with a request to the concerned Forest Divisional Officers to verify if there are any violations of Eco-Sensitivity Zone notifications, Wild Life Protection Act and other Forest Act and Rules and requested to send remarks in the matter.
(ii) The District Forest Officer, Mulugu District submitted his remarks vide letter dated 04.11.2020 which was placed before the District Level Sand Committee (DLSC) on 04.12.2020.
(iii) The DLSC deliberated upon the same, and it was decided by the members to obtain the following information/record/documents from the Forest Department, pursuant to their claim:
(a) Copy of Gazette notification;
(b) Tree density covered in the area;
(c) Canopy of the plants to be disturbed by the sand mining.
(iv) Accordingly, the Assistant Director of Mines and Geology, Mulugu, addressed a letter to the Forest Divisional Officer WLM Eturunagaram, Mulugu District, vide letter dated 04.12.2020 requesting to furnish the information as detailed above.
(v) There was no response from the Forest Divisional Officer, Wild Life Mulugu, Eturunagaram, Mulugu District.
(vi) Therefore DLSC deliberated the issue in detail and granted in-principle allotment notice to the M/s.TSMDC/respondent No.4 for submission of Approved Mining Plan, Environmental Clearance (EC) and Consent For Establishment (CFE) and Consent For Operation (CFO) in respect of 35 sand bearing areas in Godavari River in Mulugu District within three (3) months under Rule 4(1)(iv)(a) of the 9 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 Telangana State Sand Mining Rules of 2015, issued vide G.O.Ms.3, Industries and Commerce Department dated 08.01.2015.
(vii) The DLSC further observed that after obtaining the said clearances, M/s.TSMDC has to follow the PESA Act/Rules and guidelines for quarrying and sale of sand from the following areas:
Sl.No. Name of the Village & Mandal Quantity of
Sand Bearing Sand in
Area CBM
1. Mananasapally Manasapally (v) 99,782
Eturunagaram(m)
2. Eturunagaram-I Eturunagaram(v&m) 99,800
3. Eturunagaram-II Eturunagaram(v&m) 99,556
(viii) Consequently, after entering into agreement with the pattadars, when M/s.TSMDC commenced the de-casting of sand in patta lands, the Forest Range Officer, Eturungaram has issued a notice dated 18.12.2021 requesting to stop de-casting of sand stating that the Eco-Sensitivity Zone of Eturunagaram Wild Life Sanctuary Notification has not notified the prior clearance from Standing Committee of the National Board for Wildlife, which is mandatory for sand mining and therefore requested the Mining department to cancel the permissions issued for de-casting of sand from the Eco-Sensitive Zone (ESZ) of Eturunagaram Wildlife Sanctuary.
(ix) In view of the above, the DLSC conducted a meeting on 17.01.2022 wherein the respondent No.5 also participated and requested stoppage of the de-casting of sand on the ground that the Eco-Sensitive Zone (ESZ) draft notification is under process and that detailed procedure is involved for notification which may take six months time. In view of the said request of Forest Department, the DLSC has taken a decision to prohibit 10 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 all sand excavations in the Eco-Sensitivity Zone, Eturunagaram Wild Life Sanctuary and accordingly, the final allotment is not granted by DLSC in favour of M/s.TSMDC, in respect of subject area in this writ petition.
(x) It is further submitted that the Chairperson, District Eco-Sensitivity Zone Monitoring Committee, Mulugu, submitted a draft Eco-Sensitivity Zone proposals of Eturunagaram Wild Life Sanctuary to the Principal Chief Conservator Forest, Telangana, for onward transmission of MoEF, Government of India at New Delhi, for draft publications vide letter No.REV.E/GLI/ 003/2021, dated 04.02.2022.
(xi) In reply to the same the Principal Chief Conservator Forest (PCCF) has raised some queries vide Rc.No.779/2007/WL-I, dated 21.02.2022 and in reply, the Chairperson, District Monitoring Committee, Eco-Sensitivity Zone, Mulugu District sent the proposals to the PCCF vide letter No.REV.E/GLI/003/2021, dated 03.03.2022 and thereafter there is no further information with regard to the same and that the declaration of draft Eco-Sensitive Zone (ESZ) Notification is pending with the Forest Department.
The respondents No.1 to 4 therefore prayed for appropriate directions from this Court in this regard.
8. The Forest Divisional Officer/respondent No.7, has filed a counter affidavit stating as under:
(i) That no mining activity can be permitted in the vicinity of an Eco-Sensitive Zone unless the comprehensive Wild Life Management Plan has been implemented as held by the Hon'ble Supreme Court in Civil Appeal Nos.1627-1628 of 2022 in the case of Binay Kumar Dalei & Others Vs. State of Odisha & Others, dated 02.03.2022.
11
PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022
(ii) That the Eco-Sensitivity Zone for Eturunagaram Wild Life Sanctuary is not yet notified under Section 3 of the Environment (Protect) Act, 1986, but the Hon'ble Supreme Court in W.P.460 of 2004 dated 04.12.2006 i.e., in the case of Goa Foundation Vs. Union of India has inter-alia directed that Ministry of Environment and Forest would also refer to the Standing Committee of the National Board for Wildlife under Section 5(b)& 5(c)(ii) of Wildlife Protection Act, 1972, the cases where the environmental clearances have already been granted where activities are within 10 kilometers zone of the boundaries of Sanctuaries and National Parks;
(iii) the developmental activities are prohibited/regulated in Eco-Sensitivity Zones inter-alia including mining operations being carried out in accordance with the order of the Hon'ble Supreme Court dated 04.08.2006 in the matter of T.N.Godavarman Thirumulpad Vs. Union of India & Others in W.P.(C) No.202 of 1995;
(iv) the competent authority in the Ministry of Environment, Forest and Climate Change, in his Memorandum F.No.22-43/2018-IA.III dated 08.08.2019 has issued detailed guidelines under Para-4(iii) and has adopted a procedure for consideration of developmental projects located within 10 kilometers of National Parks/Wildlife Sanctuary seeking environmental clearance under the provisions of the (Environmental Impact Assessment) Notification of 2006.
(v) the Forest Range Officer of Eturunagaram South Range, of Eturunagaram Wild Life Sanctuary has communicated the said provisions to the pattadars of sand de- casting areas and asked them to produce relevant documents and clearances for sand mining.
(vi) Necessary Wildlife clearances from National Board for Wildlife or even proposals for same, were not produced and 12 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 hence, it was advised that mining should be stopped until such clearance are obtained.
(vii) the District Forest Officer, Mulugu, vide letter addressed to District Collector, Mulugu District, i.e., the Chairman of the District Level Sand Committee vide letter Rc.No.628/ MD62/2021, dated 20.12.2021, appraised him of the above Situation and rule position and requested him to instruct to obtain necessary Wild Life clearances and prior approval from the competent authority for sand mining.
(viii) the Eco-Sensitivity Zone file of Eturunagaram Wild Life Sanctuary was processed and submitted way back to Collector Mulugu and there was a dispute and difference over the Eco-Sensitivity Zone boundaries fixation between perspective of Chief Wildlife warden/Forest Department and Collector Mulugu, which is causing delay and is taking time as it is critical issue determining the future of many villages and activities prohibited and regulated through discussion, till Eco- Sensitivity Zone is notified. Thus, as necessary clearance of National Wild Life have not been obtained, the petitioners are not entitled to the formal approval for sand mining and hence it was not given approval.
9. The respondent No.5 has also filed an additional counter affidavit stating further that
(i) The subject lands were sub-merged in Godavari flood water during the year 1986 and since then the said land is unfit for cultivation and was continuously in flood of water, the ryots never cultivated the said land in the past 37 years.
(ii) That the subject land is located within 2.8 kilometers from Reserve Forest boundary, which is sought to be declared as Eco-Sensitive Zone and if the sand operations are allowed to be carried out, the sand will have to be transported through the 13 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 Reserve Forest area, which would cause disturbance to the Wildlife living in the area.
(iii) Apart from that, if commercial activity of sand mining is carried out, it would be detrimental to the interests of the Wildlife.
(iv) The exemption granted by the Central Government in its notification dated 28.03.2020 is only for the agricultural lands which are affected by floods, but in the instant case, the subject lands have not been used for agricultural purposes since long time i.e., 37 years as they were abutting Godavari River.
(v) The petitioners cannot be permitted to use the machinery to de-cast the sand, as it would be detrimental to the very existence of Wildlife as using of heavy machinery and movements of men in the Reserve Forest will disturb the wildlife and would cause irreparable loss to the ecology and to the entire atmosphere.
(vi) The draft notification issued was under consideration by the Government of India and that the proposal made by the Chairman, Eco-Sensitivity Zone Monitoring Committee and Collector, Mulugu, to exclude an extent of 336 Sq.kms., from the said notification was opposed by the Forest Department duly raising an objection that Eturunagaram Wild Life Sanctuary with an area of 806.15 Sq.Kms., was notified under Section 26-A of Wild Life Protection Act, 1972, vide G.O.Ms.No.88, Environment, Forests, Science and Technology Department, dated 07.07.1999 and in the notification, boundary description of the Sanctuary was mentioned as "for the purpose of Wild Life Sanctuary all the land within the above description will be included in the Sanctuary".
(vii) Thus, once Wild Life Sanctuary is notified under Section 26-A of the Wild Life Protection Act, 1972, no area can be excluded from the notified Sanctuary and that Section 26- 14
PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 A(3) of the Wild Life Protection Act states that no alteration of boundaries of a Sanctuary shall be made by the State Government except on the recommendations of the National Board for Wildlife and therefore, the State Government has no power to exclude Eturunagaram, Ramagundum, Rampur from the said list.
(viii) In Appendix-x of notification dated 28.03.2020, there is no exemption to Commercial mining and therefore exemption granted in the notification has no application to the instant case and it is only applicable to bonafide agricultural purposes and therefore, the environmental clearance is required for the mining of sand by the petitioners and it is further submitted that the Forest Department has been reporting that the Eturunagaram area falls under Eco-Sensitivity Zone and mining activity cannot be permitted and that if the sand mining is permitted, then the contractor will bring heavy machinery and disturb the ecology.
Thus, the respondent No.7 prayed for dismissal of the writ petitions.
10. Learned counsel for the petitioners reiterated the submissions made in the writ affidavit and also supported the written arguments filed by him.
11. Learned counsel for the petitioner also placed reliance upon the following judgments:
(i) The Forest Range Officer,
Eturnagaram South Wild Life Management Range
15
PMD,J
W.P.Nos. 18709, 22129 & 22313 of 2022
Eturnagaram WLM Division Mulugu District Telangana & Others Vs. Bolusani Gowri Shankar & Others1;
(ii) Bolusani Gowri Shankar & Others Vs. The State of Telangana & others2;
(iii) T.N.Godavarman Thirumulpad Vs. Union of India & Others3;
(iv) RTI Letter of Government of India, Ministry of Environment, Forest and Climate Change (ESZ-Division).
12. Learned counsel for the petitioner submitted that the issue of non-notification of Eturunagaram-I & II as Wild Life Sanctuary has been considered by the Co-ordinate bench of this Court in W.P.No.10774 of 2022 and it was held that unless and until the Eturunagaram Wild Life Sanctuary is notified, the draft notification will not apply to the petitioner therein and further that the Division Bench of this Court has also upheld the decision of the Single Judge by holding that the Reserve Forest has not been notified and therefore, the condition of 10 kilometers from the boundary of the National Reserve Forest is not applicable to the case on hand.
1 W.A.No.443 of 2022, dated 05.12.2022 2 W.P.No. 10774 of 2022, dated 16.06.2022 3 I.A.Nos.982-984 of 2003 in W.P.(C) No.202 of 1995 16 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022
13. Learned Government Pleader for Mines and Geology reiterated the averments made in the counter affidavit filed by the respondents No.1 to 3. The learned Government Pleader for Forests relied upon the averments made in the counter and additional counter affidavits filed by the respondent No.7.
14. Having regard to the rival contentions and the material on record, this Court finds that the issue before this Court is whether the subject land falls within the Eco-Sensitive Zone of Eturunagaram Wild Life Sanctuary. Undisputedly, "the Eturunagaram Wildlife Sanctuary" has been notified and the same was published in the A.P.Gazette Vol.No.345, dt.17.08.1999. It is an admitted fact that Eco-Sensitive Zone around Eturunagaram Wildlife Sanctuary is not yet notified, as admitted by the respondents in their respective counter affidavits and is still in the draft stage only. The Division Bench of this Court has also considered this issue and has upheld the decision of the learned Single Judge in the case of patta holders of agricultural lands for de-casting of sand.
15. It is further seen that the Hon'ble Supreme Court has revised the guidelines vide its order in the case of 17 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 T.N.Godavarman Thirumulpad (cited supra). Therefore, initially though the area of Eco-Sensitivity Zone was proposed to be 10 kilometers from the boundary of the Wild Life Sanctuary, it has subsequently been reduced to 1 kilometer. However, it has been held that "in respect of sanctuaries or national parks for which the proposal of a State or Union Territory has not been given, the 10 kilometres buffer zone as ESZ, as indicated in the order passed by this Court on 4th December 2006 in the case of Goa Foundation (supra) and also contained in the guidelines of 9th February 2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till a final decision in that regard is arrived at". Admittedly the subject sand regions are beyond 1 kilometer and are about 2.8 kilometers away from the boundary of Wild Life Sanctuary. Also in the meeting held by Eco-Sensitivity Zone Committee held on 16.12.2021, it was decided not to include the subject villages in the list of villages for the zone. Therefore, the environmental clearance for Eco-Sensitivity Zone would not be applicable to the case on hand even if the area was notified. The decision of the learned Single Judge, which has been confirmed by the Division Bench of this Court is applicable to the case, as it was 18 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 a case of agriculturists who were permitted to de-cast sand from their patta land, whereas in this case, the petitioners want to de-cast the sand from Sand Bearing Areas identified by the DLSC. Therefore, this Court is of the opinion that the environmental clearance from the authorities is not necessary.
16. Accordingly, these writ petitions are allowed. There shall be no order as to costs.
17. Miscellaneous petitions, if any, pending in these writ petitions, shall stand closed.
____________________________ JUSTICE P.MADHAVI DEVI Date: 21.04.2023 bak 19 PMD,J W.P.Nos. 18709, 22129 & 22313 of 2022 THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI W.P.Nos. 18709, 22129 & 22313 of 2022 Dated: 21.04.2023 bak