Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Online)(NGT) 5516

NATIONAL GREEN TRIBUNAL BHOPAL (CENTRAL ZONE BENCH)
Sheo Kumar Singh, Judicial Member, Afroz Ahmad, Expert Member
Brajesh Kumar Bharadwaj – Appellant
Versus
Secretary Ministry of Forest, Environment & Climate Change – Respondent
Original Application No.188/2023(CZ)|O.A.No.619/2023 - PB

Advocates:
For the Appellants/Petitioners: Mr. Brajesh Kumar Bharadwaj (Applicant in Person)
For the Respondents: Ms Parul Bhadoria, Adv., Dr. Sapna Aggarwal, Adv., Mr. Prashant M. Harne, Adv. (with Mr. Mehul Bhardwaj, Adv.)

Airstrip expansion in tiger reserve ESZ/buffer without prior environmental, wildlife, NTCA clearances prohibited; precautionary principle mandates halt, impact studies; polluter pays for damage assessment.

Headnote:(A) Environment (Protection) Act, 1986; Wildlife (Protection) Act, 1972 - Sections 38O, 38V; EIA Notification, 2006 - Schedule 7(a); Eco-Sensitive Zone Notification dated 9.08.2017 - Expansion of airstrip located within 200m of protected area boundary in eco-sensitive zone of tiger reserve and biosphere reserve without prior environmental clearance, wildlife clearance, NTCA approval or consent to establish/operate - Prohibited as commercial construction within 1 km of protected area boundary; tree felling without permission; noise, air pollution and habitat disruption to tigers (keystone species) and avifauna - Mandatory prior clearances from NBWL/SCNBWL, NTCA, MoEF&CC required for projects in buffer/core zones; precautionary principle mandates anticipatory action even on reasonable suspicion of harm; ecocentrism over anthropocentrism; polluter pays for environmental damage assessment and restoration. (Paras 4, 7, 8, 9, 10, 13, 14, 47-50)

(B) Precautionary Principle and Sustainable Development - Economic development must not occur at cost of ecology; protection of environment precedes economic interest in doubt; core/critical tiger habitats inviolate; buffer zones essential for dispersal, gene flow, absorbing poaching pressure; noise pollution from aircraft disrupts wildlife navigation, reproduction, survival; detailed impact studies on terrestrial/avian fauna mandatory before execution. (Paras 13, 17, 19)

(C) Polluter Pays and Ecological Restitution - Violation cases require environmental damage assessment by reputed institute; compensation for degradation paid by project proponent; restoration of damaged ecosystem prioritized over compensatory afforestation elsewhere. (Paras 14, 50(v))

Facts of the case:
Public Works Department initiated expansion of unreserved airstrip from 1200m to 1800m/2000m under regional connectivity scheme for commercial 19-seater flights, located 162m from core zone pillar in eco-sensitive zone, biosphere reserve; earthworks, excavation (57,328 m³ soil), tree felling (333 trees) undertaken without statutory permissions; work stopped since Dec 2022 pending approvals; Expert Committee confirmed violations, recommended halt.

Findings of Court:
Project violates ESZ prohibition on commercial construction/tree felling within 1km; requires Category 'A' environmental clearance, wildlife clearance via NBWL/NTCA, red category consents; generates noise/air pollution impacting wildlife; alternative sites outside protected areas to be explored; environmental damage study under polluter pays.

Issues: Whether airstrip expansion in eco-sensitive buffer zone without clearances violates notifications; necessity of wildlife/environmental clearances for commercial projects near tiger reserves; measures for violations and ecological restoration.

Ratio Decidendi: Projects in tiger reserve buffer/ESZ require prior wildlife clearance via Chief Wildlife Warden, SBWL, SCNBWL, NTCA; commercial airstrips under EIA Category 'A' need central clearance; ESZ bars new commercial construction/tree felling without permission; precautionary principle mandates studies/halt on harm suspicion; environment protection trumps development absent clearances.

Result: Application allowed; no restart/continuation without ESZ/wildlife/environmental clearances; alternative sites explored; impact studies mandated; environmental damage assessment by reputed institute, costs on proponent.

Table of Content
1. airstrip expansion in tiger reserve esz without clearances (Para 1 , 2 , 4 , 6 , 14)
2. violations of esz notification and tree felling prohibitions (Para 3 , 5 , 7 , 8 , 9 , 15)
3. tiger conservation and ecological importance of buffer zones (Para 10 , 11 , 12 , 13 , 17 , 18 , 19)
4. wildlife protection act provisions for protected areas (Para 20 , 21)
5. eia requirements and airport environmental impacts (Para 23 , 24 , 25 , 26)
6. respondents' submissions on permissions and violations (Para 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41)
7. mandatory clearances and halt to unauthorized activities (Para 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50)

JUDGMENT

1. The Public Works Department of Madhya Pradesh started the expansion of the 1200 meter unreserved Pachmarhi air strip, which is in the eco- sensitive zone of Satpura Tiger and aggrieved by the above construction and expansion of the project, this application has been moved with the prayer that the project for expansion of the 1200 meter unreserved Pachmarhi air strip to 1800 meter which is located within 200 meter of the nearest protected area boundary of Satpura Tiger Reserve, construction of RCC building needs to be ceased to safeguard the sensitive area and restoration effort of the ecology of the region must be undertaken immediately. It is further prayed that strict action must be taken against the project proponent and officials for their callous attitude towards the law-endangered wildlife and environment.

2. T he Satpura Tiger Reserve is one of the most vital Reserves for survival of tiger and this area has historically been renowned for one of the largest habitats of Tiger. Gaur and Sambhar. At least 14 endangered species of mammals, birds and reptiles inhabit these forests, the flying squirrel, Indian giant squirrel and Leaf nosed bats must be regarded among the most sensitive to habitat changes. Moreover, the airstrip is located within the Pachmarhi hills which was declared a Biosphere Reserve in the year 2009 by UNESCO for its wide range of rare flora and fauna present in the hills.

3. Such expansion shall gravely disrupt the natural movement of the wildlife present due to the proximity of the airstrip to the core area of the Satpura Tiger Reserve i.e., within 200 m. The noise generated from the landing, take-off and movement of aircrafts and helicopters would result in difficulty for the wildlife to use sound for navigation, finding food, mating, and avoiding predators, affecting many animals’ ability to survive. Engine run- up procedures for short take-off and landings, as well as the deployment of aircraft engine reversers during landings will produce exceptionally loud noise. The noise will have an impact on the migratory and reproductive habits of the endangered animals and birds in the vicinity. Fuel emissions from aircraft engines and lights below 1000 feet will pollute and impact the ecosystem and result in an increase in pollution in the area. Further, pits dug for expansion would collect water during ongoing monsoon, alluring (violation of wildlife protection act 1972) the wildlife towards the pseudo ponds and affect their safety. In the event of an accident or incident that causes the aircraft to crash/skid in the forest and catch fire, the fire would almost certainly spread rapidly and become uncontrollable due to the terrain, destroying the flora and wildlife.

4. Issue raised in this application is expansion of a non-functional Pachmarhi airstrip (Dimensions 3936 X 200 and Aerodrome Reference Point ARP GPS Coordinates-E 78°24′ N 22°27') owned by Madhya Pradesh state government located within 200 m from the nearest Protected Area boundary of the Satpura Tiger Reserve falling in the eco-sensitive zone (ESZ), i.e.. Pachmarhi hills in Narmadapuram district of Madhya Pradesh. and inside UNESCO Biosphere Reserve of Pachmarhi. The expansion is in violation of the Eco- Sensitive Zone Notification of Satpura Tiger Reserve

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2024 Supreme(Online)(NGT) 5516

NATIONAL GREEN TRIBUNAL BHOPAL (CENTRAL ZONE BENCH)Sheo Kumar Singh, Judicial Member, Afroz Ahmad, Expert MemberBrajesh Kumar Bharadwaj – AppellantVersusSecretary Ministry of Forest, Environment & Climate Change – RespondentOriginal Application No.188/2023(CZ)|O.A.No.619/2023 - PB

Airstrip expansion in tiger reserve ESZ/buffer without prior environmental, wildlife, NTCA clearances prohibited; precautionary principle mandates halt, impact studies; polluter pays for damage assessment.

NATIONAL GREEN TRIBUNAL BHOPAL (CENTRAL ZONE BENCH)
Sheo Kumar Singh, Judicial Member, Afroz Ahmad, Expert Member
Brajesh Kumar Bharadwaj – Appellant
Versus
Secretary Ministry of Forest, Environment & Climate Change – Respondent
Original Application No.188/2023(CZ)|O.A.No.619/2023 - PB