Telangana High Court

The Forest Range Officer vs Bolusani Gowri Shankar on 5 December, 2022

Bench: Ujjal Bhuyan, C.V. Bhaskar Reddy

       THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                         AND
         THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
                                W.A.No.443 of 2022
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)

        Heard Mr. Sudershan Malugari, learned counsel for the

appellants and Mr. Ramesh Viswanathula, learned counsel for

respondents No.1 to 7/writ petitioners.

2. This appeal has been filed by the State against the order

dated 16.06.2022 passed by the learned Single Judge allowing

W.P.No.10774 of 2022 filed by respondents No.1 to 7 as the

writ petitioners.

3. The related writ petition came to be filed by

respondents No.1 to 7 assailing the action of the Forest Range

Officer, Eturunagaram (South) Wildlife Management Range

(briefly 'Forest Range Officer' hereinafter) in issuing notices

dated 18.12.2021 and 01.01.2022.

4. In the notice dated 18.12.2021, the Forest Range Officer

stated that sand de-casting activity was going on in ::2::

Eturunagaram Village; the area falls outside the reserve forest

but within the eco-sensitive zone of Eturunagaram Wildlife

Sanctuary. The notice further stated that though eco-sensitive

zone of Eturunagaram Wildlife Sanctuary was not yet notified,

the same would cover ten kilometers area as per the orders of

the Supreme Court. Therefore, prior clearance from the

Standing Committee of the National Board for Wildlife was

required. Therefore, Forest Range Officer requested

respondents No.1 to 7 to stop de-casting of sand. This was

followed by further notice dated 01.01.2022 whereby it was

mentioned that the higher authority was communicated about

the request for stopping de-casting work; though no order

from the higher authority had been received, respondents

No.1 to 7 were requested to stop the de-casting work.

5. Respondents No.1 to 7 contended that they were patta

holders of land in Eturunagaram Village abutting the Godavari

river. During rainy season, flood water of the river inundates

the patta lands; after recession of the flood waters, there ::3::

remains deposit of sand and silt over the agricultural land,

which is required to be de-casted to make the land fit for

agricultural purpose once again. That apart, it was contended

that no eco-sensitive zone of Eturunagaram Wildlife Sanctuary

was notified.

6. The writ petition was contested by the appellants, who

were arrayed as respondents No.5 to 7 therein. Stand taken by

the appellants was that when request was made by

respondents No.1 to 7 for de-casting, the same was processed;

the land was inspected by a joint inspection team comprising

of members from various departments, such as, revenue,

agriculture, irrigation, ground water, mines & geology etc.

Executive Engineer of the Irrigation Department in his report

stated that lands of respondents No.1 to 7 were located within

the river course/bed of the Godavari River. Ofcourse, he also

recommended sanction of permission for de-casting.

Nonetheless, as per the report of the Executive Engineer,

patta lands were not abutting the Godavari river course but ::4::

falling within the Godavari river course i.e., in the midst of the

river. Though permission for de-casting was granted, the

same was subject to obtaining environmental

clearance etc.

7. Learned Single Judge after adverting to various

provisions of the Wildlife Protection Act, 1972 and the

guidelines issued by the Ministry of Environment and Forests,

Government of India from time to time held as follows:

It was undisputed that the petitioners were the pattadars of agricultural lands in Sy.Nos.11 and 12 of Eturunagaram Village and Mandal, Mulugu District over an extent of Acs.10.23 gts., and the said lands were casted with sand as they were abutting Jampanna Vagu river coast, due to flash floods during rainy season. The DLSC was constituted in exercise of the powers conferred by Section 15(1) of the Mines Minerals (Development and Regulation) Act, 1957. In accordance with new Sand Mining Policy, 2014 for the State of Telangana, Rules were made to regulate the mining and transportation of sand in the State of Telangana, as per G.O.Ms.No.3 ::5::

Industries and Commerce (Mines-I) Department dated 08.01.2015. The DLSC consisted of the District Collector as Chairman, the Joint Collector as Vice Chairman, the Project Officer, ITDA (in case the sand Reaches falling partly or fully in scheduled areas) as a Member, the District Panchayat Officer, The Deputy Director, Ground Water Department, the Executive Officer, Irrigation/River Conservator, Executive Engineer, Rural Water Supply, Environmental Engineer, Telangana Pollution Control Board, nominee of Telangana State Mineral Development Corporation Limited (TSMDL) as Members and the Assistant Director of Mines and Geology as Member Secretary.

8. After adverting to Rule 7 of the Rules made by the State

of Telangana to regulate mining and transportation of sand

within the State of Telangana as well as to the Office

Memorandum dated 08.08.2019 of the Ministry of

Environment, Forest and Climate Change, Government of

India laying down the procedure for considering

developmental projects within 10 kms of National ::6::

Parks/Wildlife Sanctuaries, learned Single Judge held as

follows:

Thus, prior clearance from the SCNBWC is required for activities located within 10 kms of National Parks/Wildlife Sanctuaries wherein ESZ has not been finally notified and listed in the Schedule of the EIA Notification 2006 and requiring Environmental clearance. For such activities only, prior clearance was required from the SCNBWC. It was specifically mentioned that the ESZ should be notified (not being draft notification), but in the present case as per the counter filed by the respondent No.5, only the ESZ draft notification was under process and no final notification was issued. Prior clearance from SCNBWC was also required only in cases which would require environmental clearance. But, as per the proceedings of the DLSC dated 29.06.2021, no environmental clearance was required in this case. Hence, as seen from the office Memorandum dated 08.08.2019 which was subsequently clarified vide letter dated 16.07.2020, no prior clearance from SCNBWC was required, as no final notification of ESZ was issued and activity of de-casting of sand from ::7::

patta lands of the petitioners abutting the river also would not require environmental clearance. Hence, the impugned notices issued by the 5th respondent dated 8.12.2021 and 01.01.2022 stopping the de-casting of sand from the patta lands of the petitioners as against the proceedings issued by the District Level Sand Committee permitting the same, is also not justified.

9. From the above, we find that learned Single Judge had

noted that creation of eco-sensitive zone for the Wildlife

Sanctuaries was not yet notified; it was not even at the draft

notification stage. Therefore, no prior clearance from the

National Board for Wildlife was required. Activity of de-

casting of sand from patta lands of respondents No.1 to 7

abutting the river would also not require any environmental

clearance. Finally, learned Single Judge allowed the writ

petition by holding as follows:

Commercial mining is shown as prohibited activity but ongoing agricultural and horticulture practises by local communities was shown as permitted category of activity as per the ::8::

guidelines issued by the Government of India. Hence, de-casting of sand in the patta lands cannot be considered as a commercial mining activity, but an activity to make use of the land fit for agriculture by the local communities. As such, it is a permitted activity to be conducted within Eco Sensitive Zone as per the guidelines issued by the Government of India for declaration of Eco Sensitive Zone around the National Parks and Wild Life Sanctuaries. The 5th respondent in the impugned notice dated 01.01.2022 referred to the communication of M/s.TSMDC and observed that using heavy machines and transporting it by Trucks on commercial basis is considered as a mining activity.

The learned counsel for the petitioners relied upon the judgment of this Court in W.P .No.25715 of 2018 dated 31.10.2018 wherein the action of the authorities in imposing charges on the vehicles and introduction of claue-5 to the effect that no machinery shall be permitted to use for de-casting of sand from the land were challenged, observed that:

"19) Since the patta lands of the petitioners, would be fit for cultivation after de-casting; having regard to the fact that the land of the ::9::

petitioners is eroded due to natural calamity ie. Floods and taking into consideration the location of the land, this Court is of the view that the petitioners can be permitted to use machinery for de- casting of the sand to the extent ordered by the authorities." The proceedings of the DLSC dated 29.06.2021 also permits the usage of machinery for de-casting of sand from the patta lands of the petitioners. Hence, the usage of machinery itself cannot be the basis for considering it as a commercial mining activity.

In the result, the Writ Petition is allowed declaring the action of the 5th respondent in issuing the notices dated 18.12.2021 and 01.01.2022 in stopping the de-casting of sand from the patta lands of the petitioners is without power or authority and violative of Article 21 of the Constitution of India. Hence, the said notices are set aside and the respondent Nos.5 to 7 are directed not to interfere with the de- casting of sand from the patta lands of the petitioners issued vide order dated 29.06.2021. No order as to costs.

10. From the material papers, we find that Mandal

Agriculture Officer of Eturunagaram Mandal had written to ::10::

the Assistant Director of Mines and Geology, Mulugu District

on 18.07.2020 stating that he had inspected the patta lands of

respondents No.1 to 7 and found that those were cultivated

lands adjacent to the Jampanna vagu. It was further stated

that whenever the vagu was in spate, it overflowed into these

lands casting heavy loads of sand rendering the lands unfit for

agriculture. De-casting of sand from these lands was therefore

needed to make the same suitable for cultivation again.

11. Following deliberations and confabulations between

forest authorities and in pursuance of the proceedings

dated 16.05.2020 of the District Collector, Mulugu, it appears

that a report was submitted on the basis of hydro-geological

surveys on the impact of removal of seasonal suspended

sediment load (sand deposit) in patta lands in Eturunagaram

Village of Eturunagaram Mandal. The report was prepared

pursuant to joint surveys and deliberations among the

following authorities:

1. Tahsildar, Eturunagaram Mandal, Mulugu District;

2. Mandal Agriculture Officer, Eturunagaram Mandal;

::11::

3. Executive Engineer, Irrigation, Mulugu District;

4. Assistant Director of Mines and Geology, Mulugu District; and

5. District Ground Water Officer, Ground Water Department, Mulugu District.

12. The report concluded that the proposed lands were

favourable for limited removal of sand for which sand budget

of 2,09,130 metric tons only in the stipulated geo-coordinated

boundaries in the extent of Acs.17.23 guntas of patta lands in

Survey Nos.11 and 12 of Eturunagaram Village of

Eturunagaram Mandal, was recommended.

13. We may also mention that even as per the appellants, in

the affidavit filed by them to the prayer for stay, it is stated

that notification dated 28.03.2020 of the Central Government

is for agricultural lands which are affected by floods. At

present, lands are not being used for agricultural purposes

since a long time as they are abutting Godavari river.

14. We may mention that Ministry of Environment, Forest

and Climate Change, Government of India in its office

memorandum dated 08.08.2019 had laid down detailed ::12::

procedure to be adopted for consideration of developmental

projects located within ten kilometers of National

Park/Wildlife Sanctuary which would require environmental

clearance. Even as per those guidelines, agricultural activities

are permitted in all eco-sensitive areas.

15. A Division Bench of this Court in W.A.No.220 of 2016

(State of Telangana v. G.Venkateshwar) has held as

follows:

In T.N. Godavarman Thirumulpad (supra 1), the public interest litigation was instituted for protection of forest land in the Nilgiris district of the State of Tamil Nadu. Subsequently, the scope of the public interest litigation was enlarged to protect natural resources throughout the country. In the course of the proceedings, a Central Empowered Committee (CEC) was constituted on orders of the Court dated 09.05.2002 whereafter notification was issued by the Ministry of Environment and Forest on 17.09.2002 giving a statutory backing to constitution of such CEC. Various suggestions have been made and reports ::13::

submitted by the CEC before the Supreme Court including declaration of eco-sensitive zone. As per report of the CEC dated 20.09.2012, the safety zone in respect of the protected areas falling in Category-A and Category-B should be within a distance of 2 kilometers and 1 kilometer respectively. In point No.14 CEC specifically prohibited grant/renewal of mining leases, setting up of hazardous industries, brick kilns, wood based industries which were construed to be prohibited activities within the eco-sensitive zone. Activities such as setting up of industries, hotels and restaurants, hydel projects, irrigation projects, canals, laying of transmission lines, roads of more than 5 meter width etc., should be treated as regulated activities which would be permissible only after obtaining environmental clearance and clearance of the Standing Committee, National Board of Wildlife. All other activities which are not prescribed as prohibited activities or regulated activities would be treated as permissible activities.

In T.N. Godavarman Thirumulpad (supra 1), Supreme Court directed that each protected forest, whether a National Park or a ::14::

Wildlife Sanctuary, should have an eco-sensitive zone of minimum one kilometer measured from the demarcated boundary of such protected forest. In case eco-sensitive zone has already been prescribed and goes beyond one kilometer buffer zone, the wider margin of the eco- sensitive zone shall prevail. Principal Chief Conservator of Forests as well as Home Secretary of each State was made responsible for compliance of the CEC guidelines as regards nature of use within the eco-sensitive zone of all national parks and sanctuaries within a particular State or Union Territory.

Mr. Avinash Desai, learned counsel for the 1st respondent is right in pointing out that activity of felling of tree in patta lands outside the Reserve Forest is neither a prohibited activity nor a restricted activity. That apart, learned counsel for the appellants could not place any document before us to show that eco- sensitive zone in so far the concerned forest is concerned has been notified. Without such a notification entire argument of learned counsel for the appellants falls through.

::15::

16. Following the above and on due consideration, we do

not find any error or infirmity in the view taken by the learned

Single Judge to warrant interference. However, we make it

clear that respondents No.1 to 7 shall confine their activities

only to de-casting of sand from their respective patta lands to

make those lands suitable for agriculture purpose and not for

commercial purpose. It will be open to the appellants to take

suitable steps if agricultural activity is not resumed by

respondents No.1 to 7 post de-casting.

17. Subject to the above clarification, writ appeal is

dismissed. No costs.