INTRODUCTION
An Eco-Sensitive Zone (“ESZ”) is a buffer zone surrounding the national parks, sanctuaries, and wildlife corridors in the country (collectively, “Protected Areas”), wherein certain activities are prohibited and certain activities are regulated with a view to conserving the ecosystems and wildlife of the Protected Areas. Very often, there is a divergence of views among different stakeholders as regards what should be the definition and extent of a particular ESZ.

ESZs are relevant in the real estate sector as their definition, extent and regulation are determinative of whether construction and development activities can be carried out therein and the nature and extent thereof. For instance, the establishment of hotels and resorts within an ESZ is usually categorized as a regulated activity, which is permitted provided that the habitats of the Protected Areas are taken care of, and the movement of wild animals is not restricted.

BACKGROUND
In the 21st meeting of the Indian Board for Wildlife held on 21st January 2002, the board adopted the ‘Wildlife Conservation Strategy-2002′, whereby it was decided that lands falling within 10 kilometers of the boundaries of the Protected Areas should be notified as eco-fragile zones under Section 3(v) of the Environment (Protection) Act, 1986 (“Act”) read with Rule 5(viii) and (x) of the Environment (Protection) Rules, 1986. Accordingly, a letter dated 6th February 2002 was addressed by the Additional Director General of Forests (Wildlife) to the Chief Wildlife Wardens of all States/Union Territories, calling upon them to draw up a list of the areas falling within 10 kilometers of the boundaries of the Protected Areas and to furnish detailed proposals for their notification under the Act, as ‘eco-sensitive areas’.

Thereafter, it appears that a few State Governments raised concerns in respect of the extent of the ESZ being 10 kilometers from the boundaries of the Protected Areas, on the ground that it would adversely impact human habitation and development in several important cities. Ultimately, the Wildlife Conservation Strategy-2002 was re-examined in the 2nd meeting of the National Board for Wildlife held on 17th March 2005 and it was decided that the definition of ESZs would have to be made ‘site specific’. In pursuance of the aforesaid, a letter dated 27th May 2005 (“said Letter”) was addressed by the Ministry of Environment and Forests (“MoEF”) to the Chief Wildlife Wardens of all the States/Union Territories, whereby they were called upon to take measures for identification of ESZs around the Protected Areas in their respective States/Union Territories. However, despite several reminders having been given to the States/Union Territories, many did not submit any proposals in terms of the said Letter or submitted proposals that were not in conformity thereof.

Ultimately, by an Order dated 4th December 2006 passed in Goa Foundation vs. Union of India1 (“said Order”), the Hon’ble Supreme Court of India directed the MoEF to give a final opportunity to all the States/Union Territories to respond to the said Letter and to submit their proposals within four weeks to the MoEF. The Supreme Court also directed that all cases where environmental clearances were granted in respect of activities within the 10 kilometer zone be referred to a Standing Committee of the National Board of Wildlife (“Standing Committee”). Accordingly, on 2nd December 2009, the MoEF issued an Office Memorandum which provided that while granting environmental clearance to projects located within 10 kilometers of a Protected Area, a specific condition was to be stipulated that the environmental clearance is subject to obtaining clearance from the Standing Committee.

In pursuance of the said Order, the Wildlife Division of the MoEF issued Guidelines dated 9th February 2011 (“Guidelines”). The Guidelines expressly state that the definition, extent and width of the eco-sensitive zones and the regulation of activities therein shall not be uniform for all Protected Areas but as a general principle, the width of the eco-sensitive zone could go upto 10 kilometers from the boundary of the Protected Areas as stipulated in the Wildlife Conservation Strategy-2002. The Guidelines also state that they are merely indicative in nature and that the State/Union Territory Governments may use the basic structure to develop specific guidelines applicable to their respective Protected Areas with a view to minimize and preferably eliminate any negative impact on the Protected Areas.

The Guidelines also provide an indicative list of activities carried on within the ESZ’s which are categorized as follows: (i) prohibited activities (eg: commercial mining, setting up sawmills, setting up industries causing pollution, etc.) (ii) activities restricted with safeguards (eg: felling of trees, establishment of hotels and resorts etc.) and (iii) permissible activities (eg: rainwater harvesting, organic farming, use of renewable energy sources etc.). The Guidelines further provide that the activities that would be permitted, regulated or prohibited in the ESZs would have to be Protected Area specific. It is pertinent to note that ‘construction activities’ or ‘development activities’ have neither been included in the list of prohibited activities nor in the list of activities restricted with safeguards.

On 5th December 2016, the MoEF published a Notification declaring the ESZ around the Sanjay Gandhi National Park, Borivali in terms of the Guidelines (“Notification”). As per the Notification, the extent of the ESZ varies at different places taking into consideration its geographical area and the Notification states that the ESZ is spread over an area of 59,456 square kilometers to an extent of 100 meters to 4 kilometers from the boundary of the SGNP. The Notification also specifies a list of survey numbers of which an area falls within the ESZ specified in the Notification.

In terms of the Guidelines, the Notification provides a table of activities carried on in the ESZ which are categorized as follows: (i) prohibited activities (eg: commercial mining, stone quarrying and crushing units, setting up sawmills, setting up of industries causing water or air or soil or noise pollution etc.) and (ii) regulated activities (eg: establishment of hotels and resorts, construction activities, felling of trees etc.).

As mentioned above, as per the Notification, ‘construction activities’ have been categorized as regulated activities and not as prohibited activities, and it is stated that construction activities shall be permitted within the ESZ as per the provisions of the approved development plan, the rules and regulation under the Maharashtra Regional and Town Planning Act, 1966 and subject to such other applicable rules and regulations more particularly stipulated therein.

In view of the aforesaid, promoters developing projects and undertaking construction activities within 10 kilometers of the SGNP were to approach the Standing Committee for clearance as a condition precedent to the grant of environmental clearance for such project. In the event the project was being developed outside the ESZ as per the Notification, the Standing Committee would note that the project lay outside the ESZ of the SGNP and accordingly, note that its recommendation was not required for the grant of environmental clearance in respect of such project.

Notwithstanding what is stated hereinabove, there still remained various Protected Areas for which the concerned State/Union Territory failed to notify the ESZs.

INTERVENTION BY THE APEX COURT
On 3rd June 2022, the Hon’ble Supreme Court of India passed a judgment (“said Judgment”) in In Re: T.N. Godavarman Thirumulpad vs. Union of India & Ors.2 (“T. N. Godavarman”). The proceedings originated from a public interest litigation filed under Article 32 of the Constitution of India before the Hon’ble Supreme Court of India, in 1995. The public interest litigation was initially filed for protection of forest lands in the Nilgiris District of the State of Tamil Nadu, however, subsequently, the scope of the litigation was enlarged to include the Protected Areas across the country.

In the said Judgment, the apex court stated that it was concerned with two main issues. The first issue pertained to mining activities in and around a wildlife sanctuary in Rajasthan known as “Jamua Ramgarh” or “Jamwa Ramgarh”, and the second issue was wider in scope, and involved prescribing the ESZ surrounding Protected Areas.

In the said Judgment, the apex court opined that although uniform guidelines for maintenance of ESZs may not be possible for all the Protected Areas, an ESZ of a minimum width of 1 kilometer ought to be maintained for Protected Areas. The apex court was of the view that this would be the standard formula, subject to changes in special cases.

It was argued before the apex court that the 1 kilometer wide ‘no-development-zone’ may not be feasible in all cases and especially not for the SGNP and Guindy National Park in Mumbai and Chennai metropolis respectively, which have urban activities in very close proximity. These cases were acknowledged as ‘special cases’ by the apex court in the said Judgment. However, despite being recognized as ‘special cases’, the apex court went on to issue directions in the said Judgment without creating a specific carveout for such Protected Areas including the SGNP. The following are inter alia the relevant directions provided for in the said Judgment:

“(a) Each protected forest, that is national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9th February 2011 shall be strictly adhered to. For Jamua Ramgarh wildlife sanctuary, it shall be 500 metres so far as subsisting activities are concerned.

(b) The Principal Chief Conservator of Forests as also the Home Secretary of each State and Union Territory shall remain responsible for proper compliance of the said Guidelines as regards nature of use within the ESZ of all national parks and sanctuaries within a particular State or Union Territory. The Principal Chief Conservator of Forests for each State and Union Territory shall also arrange to make a list of subsisting structures and other relevant details within the respective ESZs forthwith and a report shall be furnished before this Court by the Principal Chief Conservator of Forests of each State and Union Territory within a period of three months. For this purpose, such authority shall be entitled to take assistance of any governmental agency for satellite imaging or photography using drones.

…

(e) In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as per the 9th February 2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ.(emphasis supplied)

(f) The minimum width of the ESZ may be diluted in overwhelming public interest but for that purpose the State or Union Territory concerned shall approach the CEC and MoEF&CC and both these bodies shall give their respective opinions/recommendations before this Court. On that basis, this Court shall pass appropriate order.”

THE AFTERMATH
As no exceptions or special cases had been carved out in the directions given by the apex court in the said Judgment, questions were raised as regards the applicability of the directions to those Protected Areas for which ESZs had been notified prior to the said Judgment including the SGNP for which ESZs of less than 1 kilometer had been notified prior thereto. Further, questions were also raised as regards whether the ESZs already notified as aforesaid, would continue to apply to such Protected Areas especially since the said Judgment itself provided for a process to be followed for dilution of the minimum width of 1 kilometer in overwhelming public interest.

A meeting of the Sanjay Gandhi National Park Eco Sensitive Zone Control Committee (“Control Committee”) was held on 25th July 2022. In the meeting, the Control Committee resolved that pursuant to the said Judgment, it was necessary to obtain further guidance from the Central Government or State Government as regards the proposed action to be taken in terms of the said Judgment. Accordingly, the Control Committee resolved to stay all proposals received until such further guidance was received. Notwithstanding the aforesaid, in the same meeting, the Control Committee resolved that construction activities being undertaken within the ESZ of SGNP which had not been approved by the Control Committee but for which the municipal corporation had granted a commencement certificate (“CC”), could not be continued and accordingly, it was resolved to direct the municipal corporations to cancel such CCs. The Control Committee further resolved that the applicants ought to be directed to stop construction activities for which such CCs were granted by the municipal corporation. It was further decided that construction activities that had been sanctioned by the Control Committee and for which the municipal corporations had granted a CC would have to take fresh approval from the Principal Head Conservator of Forests, Maharashtra State as per the directions in the said Judgment.

In pursuance of the aforesaid, a letter dated 22nd August 2022 was addressed by the Office of the Deputy Forest Conservator, Thane Forest Zone, whereby the municipal corporations were called upon to obtain the legal opinion of the Urban Development Department as regards the proposed action to be taken in terms of the said Judgment.

Thereafter, by a letter dated 24th August 2022 addressed by the Office of the Deputy Forest Conservator, Thane Forest Zone, the municipal corporations were informed that they could not grant CCs for construction activities being undertaken within the ESZ of SGNP which had not been approved by the Control Committee, and the municipal corporations were called upon to cancel any such CCs that had been granted.

The directions of the Control Committee and the Office of the Deputy Forest Conservator, Thane Forest Zone caused an uproar amongst various stakeholders of the real estate sector by virtue of their inexorable adverse impact on ongoing projects as well as future developments that were to be undertaken around the SGNP but outside the ESZ in terms of the Notification.

In light of the aforesaid, the Confederation of Real Estate Developers Association of India – Maharashtra Chamber of Housing Industry (“Applicant”) filed an Application in T. N. Godavarman seeking clarifications in respect of the directions issued in the said Judgments and their applicability to the ESZs of the SGNP. The Applicant also filed an Intervention Application on the grounds that the said Judgment was being construed differently by different planning authorities, thereby resulting in a state of confusion and uncertainty and adversely affecting the members of the Applicant. The Applicant pointed out that this may result in conflicting decisions/orders being passed by different planning authorities of different geographical jurisdictions as regards the urban development permitted around the SGNP.

Ultimately, an Order dated 23rd September 2022 was passed by the apex court in the aforesaid applications and other connected matters wherein it noted that the SGNP had already been carved out as a special case in the said Judgement, and in view of the Notification having been published after following the procedure prescribed under the law, the apex court opined that the ESZ surrounding the SGNP shall continue to be governed by the Notification and the criterion of having a minimum width of 1 kilometer as provided in the directions of the said Judgment shall not apply to the SGNP.

CONCLUSION
The Order passed by the Hon’ble Supreme Court in the aforesaid applications has finally clarified that the ESZ surrounding the SGNP are not required to have a minimum width of 1 kilometer as prescribed by the apex court in the said Judgment, and that the ESZ surrounding the SGNP shall continue to be governed by the Notification. Thus, it appears that the directions set out in the said Judgment shall only apply to those Protected Areas for which ESZs have not been notified and which have not been carved out as special cases in the said Judgment.

As there is no longer any ambiguity as regards the applicability of the directions of the said Judgment to the ESZ surrounding the SGNP, promoters shall no longer face any impediment in undertaking development activities for their ongoing projects or future projects within the ESZ of the SGNP and they are also not likely to face any obstacles while obtaining approvals from the concerned municipal corporations in respect of construction activities to be carried out therein.

Footnotes

1. (2011) 15 SCC 791.

2. 2022 SCC OnLine SC 716.

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