BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI APPLICATION NOs. 89 & 212 OF 2014 (SZ) In the matter of: APPLICATION NO. 89 OF 2014 (SZ)
M.S.Thankappan, Thamarakandom Road Thekkady P.O Idukki District ... Applicant Vs 1. Union of India Ministry of Environment and Forests Forest Conservation Division Government of India New Delhi
2. The Conservator of Forests Kerala State Forest Headquarters Vazhuthacaud Thiruvananthapuram
3. The Deputy Director (Project Tiger) Periyar East Division PeriyarTiger Reserve Thekkady, Idukki District
4. National Tiger Conservation Authority Government of India, Ministry of Environment & Forests New Delhi, rep. by its Director
5. State of Kerala Department of Tourism Rep. by its Secretary, Secretariat Thiruvananthapuram
6. M/s. Periyar Tiger Conservation Foundation rep. by its Trustee, Sanjay Kumar I.F.S. O/o Deputy Director Periyar East Division PeriyarTiger Reserve, Thekkady, Idukki Dist
(impleaded as per order dt. 26.5.2014 made In M.A.No.99/2014)
7. The State of Tamil Nadu rep. by its Principal Secretary Public Works Department Fort St. George, Chennai – 9
(impleaded as per order dated 5.9.2014 Made in M.A.No.212 of 2014) ... Respondents
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Counsel appearing for the applicant
Mr. P.B. Sahasranaman
Counsel appearing for the respondents
For respondent Nos.1 &4 .. Mr. M.R. Gokul Krishnan For respondent Nos.2,3 &5 .. Mr. Sandesh Raja For respondent No.6 .. Mr. M. Ajay For respondent No.7 .. Mr. E. Manoharan
APPLICATION NO.212 OF 2014 (SZ)
In the matter of:
Abraham Thomas Mavilapurayidam Murukady P.O Via Kumily Idukki District, Kerala ... Applicant
Vs. 1. Union of India Ministry of Environment and Forests rep. by its Secretary Government of India New Delhi
2. The Conservator of Forests Kerala State Forest Headquarters Vazhuthacaud Thiruvananthapuram
3. The Deputy Director (Project Tiger) Periyar East Division PeriyarTiger Reserve Thekkady, Idukki District
4. National Tiger Conservation Authority rep. by its Director Government of India, Ministry of Environment & Forests New Delhi
5. State of Kerala Department of Tourism Rep. by its Secretary, Secretariat Thiruvananthapuram
6. The Kerala Pollution Control Board rep. by its Member Secretary Thiruvananthapuram
7. The State of Tamil Nadu rep. by its Principal Secretary
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Public Works Department Fort St. George, Chennai – 9
(impleaded as per order dated 22.8.2014)
8. M/s. Periyar Tiger Conservation Foundation Rep. by its Trustee, O/o Deputy Director PeriyarTiger Reserve, Thekkady, Idukki Dist.
(impleaded as per order dt. 20.11.2014 made in M.A.No.235/2014) ... Respondents
Counsel appearing for the applicant
Mr. Yogeshwaran
Counsel appearing for the respondents
For respondent Nos. 1 & 4 ... Mr. M.R. Gokul Krishnan For respondent Nos. 2, 3 & 5 ... Mr. Sandesh Raja For respondent No.6 ... Mrs. Rema Smrithi For respondent No.7 ... Mr. E. Manoharan For respondent No.8 ... Mr. M. Ajay
ORDER Present: Hon’ble Justice M.S. Nambiar, Judicial Member Hon’ble Shri P.S. Rao, Expert Member ------Delivered by Hon‟ble Shri P.S. Rao, Expert Member 15th November, 2017 ------
Whether the Judgement is allowed to be published on the Internet – Yes/No Whether the Judgement is to be published in the All India NGT Reporter –Yes/No
APPLICATION NO.89 OF 2014: Stating that he has got concern for the protection of environment and ecology of the area, the applicant, who is a resident of Thekkady, Idukki district,
State of Kerala has filed the application seeking relief for the protection of environment and against the development and construction activities in the
Periyar Tiger Reserve. Pursuant to the order dated 21.3.2013 issued by the
National Tiger Conservation Authority.
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2. The case of the applicant is that without obtaining Forest Clearance
(FC) from the Centrally Empowered Committee (CEC), the Officers of the Forest and Wildlife Department of the State of Kerala are developing a Car Park in an area of 20 acres inside the Wildlife Habitat at Anavachal, Periyar Wildlife
Sanctuary, Thekkady causing severe threat to the Forest Ecology and Wildlife. It is further stated by the applicant that the Periyar Wildlife Sanctuary which covers an extent of 925 sq.km and located in Idukki District, is declared as Periyar Tiger
Reserve (PTR) in 1978 and it is an example of nature‟s bounty with great scenic charm and having rich Bio-diversity providing veritable visitor satisfaction.
3. The 2nd respondent has obtained approval from the National Tiger
Conservation Authority (NTCA) of Ministry of Environment, Forests and Climate
Change (MoEF&CC) for Tiger Conservation Plan (TCP) as per order No.F.No.1-
14/2011-NTCA dated 21.3.2013 for the purpose of conservation of Tigers in the
Reserve and for other purposes. While approving the TCP, the 4th respondent
NTCA has stated that the project shall not overrule the existing laws of the country especially the Indian Forest Act, 1927, the Forest (Conservation) Act,
1980 (FC Act) and the Environment (Protection) Act, 1986. But under the guise of the above sanction order, the Department of Tourism, State of Kerala, the 5th respondent herein, has decided to develop the area and make certain constructions in the Tiger Reserve. The department proposed to provide Car
Parking facility at Anavachal, construct Boat Jetty, Reception Centres, Dining
Rooms, Office Rooms, Shopping Complex etc., and the 5th respondent issued
G.O.(Rt).No.5138/2013/TSM dated 25.6.2013 for undertaking the aforesaid activities at a cost of Rs.499.97 Lakhs. Therefore, it is clear that what was intended by the 4th and 5th respondents is not for the protection of Tigers, but it is for the development of Tourism and under the guise of Tiger Protection, if the activities are allowed substantial extent of forest land will be converted into
Parking Space, Shopping Mall etc. Taking advantage of the approved TCP, 20 acres of Wildlife Habitat inside the Periyar Tiger Reserve is going to be
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destroyed, in violation of the FC Act and other Rules and Regulations and without conducting any Environmental serious damage to the Reserve.
4. The applicant made a prayer to direct the respondent Nos. 2 to 5 not to take up any developmental or construction activities in the PTR pursuant to the approval of TCP by NTCA and direct the 1st respondent MoEF&CC to assess the damages caused to the Reserve in view of the developmental and construction activities already undertaken by the State of Kerala and recover the same from the officers concerned and restore the ecology in the same manner as it was existing in the area.
5. The Assistant Inspector General of Forests, NTCA, MoEF&CC filed the counter affidavit dated 21.5.2014 for respondent No.1 and on behalf of respondent No.4 stating that the NTCA is a statutory body in the MoEF&CC constituted under the Wildlife (Protection) Act, 1972, as amended in 2006 for the
Tiger conservation and discharges its duties and responsibilities as per the powers and jurisdiction vested under the said Act. As such, the NTCA has an overarching role in the matter of Tiger conservation. It is further stated that the concerned State Government is mandated with the day to day administration of the field formation within the State as per the Wildlife (protection) Act, 1972.The
NTCA assists the States having Tiger Reserves by providing necessary funding support for protection, strengthening of anti-poaching activities including special strategy for monsoon patrolling in addition to strengthening of communication and wireless facilities etc. The NTCA has been conferred with powers and functions under Section 38-O (1) of the Wildlife (Protection) Act, 1972, as amended in 2006 and under Section 38 (V) (4) of the Act, the buffer area has been defined and in compliance of section 38-O (1) (C) the NTCA has issued guidelines dated 15.10.2012 formulating certain standards on tourism activities in the Tiger Reserves. The TCP of the PTR has been approved following due procedure and that the parking area in question falls under the notified buffer
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zone of the Reserve and it is as per the approved eco-tourism plan which forms part of the TCP both for Tiger conservation as well as for meeting the human concerns.
6. The respondent Nos. 2 and 5 have filed a Memo dated 8.5.2014 stating that they are adopting the counter/reply affidavit of the 3rd respondent and they have no further reply/counter to be filed. However, subsequently vide Memo dated 17.2.2017, the State of Kerala has filed a copy of the letter dated 4.1.2017 received from Mr. E.K. Bharat Bhushan I.A.S, Member, Central Administrative
Tribunal, Ahmadabad Bench forwarded to the Deputy Director, PTR wherein it is clearly recommended that the location of the vehicle parking site may be shifted from the present location to avoid damage to the wildlife and environment. That letter reveals that the Member of the Tribunal had an occasion to visit the
Reserve and while appreciating the measures taken for the protection of wildlife, bio-diversity as well as facilities provided for the tourists, the Member has suggested that the vehicle parking site at the boat landing point to be shifted outside to prevent disturbance to the wild animals and damage to the environment.
7. The Deputy Director, Project Tiger, PTR has filed counter affidavit on behalf of respondent No.3 denying the averments made by the applicant that the activities undertaken in the PTR by the State of Kerala are causing damage to the wildlife and environment. It is stated that the development and protection activities in the Reserve was the subject matter of the case in T.N.
GODAVARMAN VS. UNION OF INDIA W.P.(C) No.202 of 1995 before the
Hon‟ble Supreme Court wherein in the order dated 14.2.2000 in I.A. No. 548 and order dated 25.11.2005 in I.A.No.1220 the Hon‟ble Supreme Court has clearly mentioned that the works in the project areas can be taken provided that the same are as per the Management Plan approved by the competent authority and consistent with the provisions of Wildlife (Protection) Act, 1972 and National
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Wildlife Action Plan and also in conformity with the guidelines issued from time to time for the management of the Protected Areas. It is further replied by the 3rd respondent that large number of tourist vehicles are entering into the Reserve from the entrance gate to the boat landing point approximately running to a distance of 2.5 km in the buffer zone leading to severe pressure on the wildlife and environment. The plying and parking of large number of private tourist vehicles deep inside the Reserve at Raman Park, boat landing point is affecting the natural regeneration of the forest along the road side besides causing mortality of wild animals due to accidents and also causing noise and air pollution. The proposed shifting of the vehicle parking site to the extreme boundary of the Reserve and bringing the tourists inside the park in battery operated vehicles, will reduce the pollution and prevent the wildlife mortality and will also improve the ecology and environment of the Reserve and this solution has been recommended through many research studies and it has been incorporated at Para 23.3.5 of the TCP approved by the NTCA for the period from 2011-2012 to 2020-2021. The proposed parking site at the extreme boundary of the Reserve hardly occupies 3 acres of land and not 20 acres as alleged by the applicant. Shifting of the vehicle parking site is in compliance, guidelines of TNCA approved as for the Hon‟ble Supreme Court‟s directions.
Chapter 23 of the TCP which deals with management of visitation, eco-tourism and awareness programmes, was prepared as per the guidelines issued by the
NTCA under Section 38-O(1)(c) of the Wildlife (Protection) Act, 1972.
8. It is further replied by the 3rd respondent State of Kerala that the application has been filed with a motive as applicant is having vested interest to continue his business of operating Private tourist vehicles inside the park and he is not interested in protecting flora and fauna. The tourist office of the applicant is situated near the check post at the entry point where the tourist vehicles are creating nuisance. The tourism activities in the buffer zone of the Reserve are undertaken as per the guidelines issued by the NTCA and are oriented to
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improve the livelihood conditions of the forest dependent communities and all the tourist activities are strictly confined within the notified buffer zone of the
Reserve. Draft TCP was prepared by involving highly reputed experts in the field of Conservation and Wildlife Management and after examining the comments, the NTCA approved the TCP, duly permitting the tourism activities in the buffer zone and all the proposed activities approved in the TCP are in accordance with the existing laws of the country, especially Indian Forest Act, 1927, Wildlife
(Protection) Act, 1972, Forest (Conservation) Act, 1980 and Environment
(Protection) Act 1986 and all other relevant guidelines issued by NTCA and
MoEF&CC and also in accordance with the directions of the Hon‟ble Supreme
Court.
9. The National Wildlife Action Plan 2002-2016 vide Chapter XIII titled
“Integration of National Wildlife Action Plan with other sectoral Programmes provides that the MoEF&CC should approach various Ministries to integrate their activities in such a manner that the poverty in these areas can be alleviated without affecting the wildlife resources. It is also stated that the Ministry of
Tourism to adopt a model of tourism that would help flow of direct benefits from the Protected Areas to the local people particularly tribal people and in case of
PTR, the anticipated income from the parking area is intended for the welfare of the local forest dependent communities including tribes. Further, the NTCA in their Technical Document No. NTCA/01/07 vide Para 5.2 has detailed the strategy for the buffer mainstreaming wildlife concerns in various production landscapes and has specifically stated that all the stakeholders/departments operating in buffer zone may be involved in mainstreaming the wildlife concern.
As per Section 38(X) of Wildlife (Protection) Act, 1972 there is a provision “to augment and mobilise financial resources including recycling of entry and such other fees received in a Tiger reserve, to foster stakeholder development and eco-tourism”. In addition to attending to the security concern of the visitors and also to address unregulated sewage flow into water body of the Reserve which is
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posing threat to the wild animals as well as polluting the water which is a source of drinking water in the downstream State of Tamil Nadu, particularly during
Sabarimala pilgrimage season in Kumily Town where lakhs of pilgrims assemble and generate huge quantity of sewage, there is a need to establish Sewage
Treatment Plant (STP). Therefore, as a responsible activity and taking a holistic approach, STP is also proposed to be established at the periphery of the
Reserve in Kumily town as per the approved plan and this is not a proposal by the Tourism department, as pointed out by the applicant. The Tourism
Department of State of Kerala was approached for funding various activities such as construction of STP, providing minimum facilities to the visitors in the Reserve which form part of the approved TCP and accordingly the Tourism Department has accorded necessary sanction for funding the activities vide G.O. dated
25.6.2013. Benefits from these activities will be recycled for the upliftment of the poverty and for securing livelihood of the forest dependent communities apart from strengthening the protection of wildlife and improving the ecology in the area.
10. The proposed tourism activities are taken up in the notified buffer zone which constitute hardly 0.0013% of the total extent of the PTR and there is no proposal for the construction of shopping complex or mall as alleged by the applicant. The proposed site for parking vehicles is on the edge at the boundary of the buffer zone. There is no vegetation and no wild animals visit the area which is hardly an extent of 3 acres and the proposed new site for parking is presently misutilised by the local residents of Kumily Panchayat for dumping waste including solid waste, construction debris etc., besides draining sewage by the hoteliers and used as cattle dung deposing pits and thus no damage will be caused either to wildlife or environment if the vehicles are allowed to park at the site. In fact, allowing parking of tourist vehicles near the boat landing point deep inside the forest is causing severe noise pollution, air pollution and affecting the forest conservation besides generating garbage which is found littered attracting
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the wild animals. There are frequent incidents of wild animals getting killed by the plying tourist vehicles. The existing parking area and the 2.5 km road stretch inside the reserve is acting as a corridor for the movement of wild animals including Elephants, Indian Guar and Tiger. There are also instances that due to throwing of plastic waste containing left out food materials by the tourists elephants, deer and other wild animals consuming left out food materials along with plastic and getting killed. Even open defection takes place due to allowing vehicles inside the park which in fact will be leading to spreading of contagious diseases affecting the wild animals. Overall, on an average more than 300 tourist vehicles enter into the Reserve upto the boat landing point every day which goes even up to 900 during December and during the pilgrimage season particularly during Sabarimala Pilgrimage severely affecting the wildlife and damaging the environment.
11. The proposed activity hardly involves 8,000 sq. m area and it does not require Environmental Clearance (EC) under the EIA Notification, 2006. With regard to the construction of facilities for the tourists such as snack bar, toilet facilities etc., it is not a new activity but it is a reconstruction in place of the old and dilapidated snack bar run by the staff of the society for the last 35 years. The functioning of the society is for the welfare of staff and watchers working in the
Reserve. The existing facilities are not able to meet the requirement of almost on an average 7 lakhs visitors including about 70,000 foreign tourists annually reaching the boat landing point. Therefore, reconstruction of the cafeteria or snack bar is essential. While designing the structures utmost care has been taken to harmonise with the surroundings and the reconstruction activities are entrusted to the Kerala State Housing Board, a Government of Kerala
Undertaking. This facility is only for the purpose of meeting the basic amenities like food, snacks, drinking water, toilet facilities etc to such large number of tourists visiting the Reserve, and thus the proposed activities will not affect the wildlife and forest ecology but in fact improve the conservation efforts and
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protection of wildlife as per the approved TCP. The activities are ancillary to the conservation and management of the Tiger Reserve and they are not to be considered as a non-forest activity. The TCP is prepared in accordance with the guidelines issued by MoEF&CC and NTCA in tune with the directions of the
Hon‟ble Supreme Court and does not involve violation of the laws. Various study reports stress the need for taking up solutions for reducing pressure imposed by heavy vehicular flow into the Reserve and implementation of the activities approved under TCP will augment the ecological and environmental needs.
Finally, the 3rd respondent has concluded by stating that the park management is taking all necessary precautions to protect the wildlife and forest while implementing the activities approved in the TCP duly following the principles of sustainable development and precautionary principle and the Periyar Tiger
Reserve is a model in the country and recognised worldwide for the participatory management and sustainable development. The pro-active conservation efforts by the management of the Reserve have bagged many national and international awards and accolades.
12. In the additional reply affidavit filed by the 3rd respondent it is further stated that ever since the Periyar Wildlife Sanctuary was declared as a Tiger
Reserve in 1978, it has become an epitome of wildlife and bio-diversity conservation, research and monitoring, nature education and awareness and it is considered as a model in the country and recognised worldwide. The Tiger
Reserves in India perform the functions of conservation, awareness, research, eco-development, including livelihood options for the forest dependent communities and allow eco-tourism etc. The guidelines issued by the NTCA dated 20.10.2012 are fully complied with while conducting the activities which are approved under the TCP. The number of visitors to the Reserve which was less than 3 lakhs during 1996-1997, has gone up to 7 lakhs during 2013-2014 and it is increasing year after year causing severe pressure on the local eco-system and impact of vehicle parking is on the rise. Movement of large number of tourist
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vehicles from Kumily Town to the boat landing point through dense Forest of the
Reserve is disturbing wildlife, causing noise pollution, air pollution and water pollution as well as degradation of soil and affecting the natural regeneration of the forest. Considering the above threat and to prevent further damage, the
NTCA issued instructions to the Park Management in their letters dated 4.2.2013 and 21.3.2013 to address the issues which accordingly was incorporated in the
TCP approved by the NTCA and therefore, the question of violation of any Act does not arise.
13. It is further stated by the 3rd respondent that even the Hon‟ble Supreme
Court in the order dated 25.11.2005 has clearly stated that clearance under
Forest (Conservation) Act, 1980 and other environmental laws is not required if the said activity is a part of approved TCP. The proposed vehicle parking site is at the fringe of buffer zone and will not qualify to be defined as „wetland‟ under the Kerala Conservation of Paddy Land and Wetland Act, 2008 or under
Wetlands (Conservation and Management) Rules, 2010. As per the report of the
Tahsildar, Peermade, the said area where the parking site is proposed, had never been under water during the past 119 years and it is not a wetland.
Moreover, the site does not involve any cutting of trees or damage to the flora and fauna and in fact presently the site misused for dumping solid waste and for letting sewage which in fact are source of pollution. The site is located at
Anavachal which is part of Kumily Town and is surrounded by well maintained roads for the last several decades. It is under the jurisdiction of Grama
Panchayat, Kumily. One of the objectives in shifting the vehicle parking site from deep inside the Reserve at the boat landing point to the periphery, is to check the malpractices by freelance tour guides, including the applicant who indulge in selling the tickets in black market, canvassing and misleading the innocent tourists who visit the park. It is clear that the motive of the applicant in filing the applicant is to prevent the park authorities from taking up such conservation friendly activities as his illegal source of income will be affected and the
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application is filed with vested interest to stop the implementation of the activities even though they are statutorily approved by the NTCA. There is no intention of doing any commercial or business activities in the Reserve and tourism activities are strictly in accordance with the directions issued by the Hon‟ble Supreme
Court as well as the guidelines notified by the NTCA. The NTCA, being the highest authority in terms of Management of Tiger Reserves in the country, has submitted the guidelines to the Hon‟ble Supreme Court for the tourism plan for the Tiger Reserves to be adopted throughout the country. Therefore, the Tourism
Plan submitted by the Park Management has got approval of the NTCA of the
MoEF&CC on 21.3.2013 in accordance with the guidelines of the Hon‟ble
Supreme Court.
14. It is also the case of the 3rd respondent that the sketch submitted by the applicant with regard to the Kumily Town dates back to 1908 prepared without any scientific basis and does not reflect the ground reality and the applicant has misrepresented the sketch and trying to mislead the Tribunal. It cannot consider as a valid document. In fact, the Tahsildar, Kumily has reported that the sketch is not reliable. It is not possible to calculate the water level or water spread area with respect to +155 feet level of Mullai Periyar Dam. Hence the map issued by the Tahsildar, Kumily under RTI filed as annexure by the applicant is only to misguide the Tribunal. In fact, as per the letter of the
Assistant Engineer, Irrigation Department, Thekkady, the proposed parking site will not come under water spread area at +155 feet level leased to State of Tamil
Nadu and falls under the jurisdiction of the Tiger Reserve. The Total Station
Survey and Remote Sensing Data also proves that the area proposed for vehicle parking area is certainly beyond the water spread area. The Hon‟ble Supreme
Court in W.P.(C) No.386 of 2001 permitted the State of Tamil Nadu to raise the water level upto 142 feet and it is clearly stated that only once the water level of
Mullai Periyar Dam touched approximately the maximum FRL i.e., 154.80 feet way back in 3.1.1943. Therefore, as per the past 119 years of record maintained
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by the Tahsildar, Kumily, the said area where the vehicle parking is proposed is shifted, never got submerged under water and it is therefore located beyond the water spread area of the dam. The proposed site located in the town, is neither a wetland nor an ecologically significant area and not frequented by wild animals.
There are no biological resources at the site and therefore the question of damage to biodiversity does not arise and that the alleged violation of Biological
Diversity Act, 2002 is not correct and in fact the activity of shifting the vehicle parking site will help in conserving the biodiversity, maintenance of wildlife corridor, allows forest regeneration and prevents pollution which otherwise at present parking of tourist vehicles near boat landing point deep inside the
Reserve, is acting as detrimental to the conservation. The proposed site in
Kumily town is located towards North-Western part of the Reserve and is about
15 km by aerial distance from the catchment forming part of Mullayar and Periyar rivers. Moreover, the Lake Reserve Notification, 1899 clearly defines that the catchment for the dam is far away from the proposed parking area. Hence the contention raised by the applicant that the proposed parking area falls within the catchment area of Mullai Periyar Dam is not true. It neither falls in the submersible area nor catchment area of the dam. The Superintending Engineer,
Periyar Vaigai Basin, Madurai, Tamil Nadu in his letters dated 10.7.2014 and
24.7.2014 addressed to the Deputy Director, Periyar Tiger Reserve, has requested to install STP at the earliest for the benefit of lakhs of people of Tamil
Nadu who depend on the dam water for drinking as presently the entire sewage goes unregulated and flows into the water body and therefore while preparing the project the aforesaid aspects were taken into account in a holistic manner and thus the proposed activities will benefit the State of Tamil Nadu more than the
State of Kerala.
15. The Trustee, Periyar Tiger Conservation Foundation, PTR, Thekkady has filed M.A.No.99 of 2014 for getting itself impleaded in the original application and accordingly after hearing the respective counsel, the Tribunal, vide order
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dated 26.5.2014, allowed the M.A to implead the Trustee, Periyar Tiger
Conservation Foundation, as respondent No.6. The respondent No.6 by his submission made on 26.5.2014 has stated that they adopt the counter affidavit filed by the 3rd respondent on all aspects and no separate counter is required to be filed.
16. M.A.No.212 of 2014 was filed for impleadment of the State of Tamil
Nadu, represented by Principal Secretary, Public Works Department (PWD) and after hearing the learned counsel that the State of Tamil Nadu is also to be given an opportunity of being heard in this case, the Tribunal, vide order dated
5.9.2014, ordered to implead the State of Tamil Nadu as respondent No.7. State of Tamil Nadu represented by Chief Engineer, Cauvery Technical Cell, Inter-
State Waters Wing, P.W.D, Egmore, Chennai filed an interim counter affidavit on
27.10.2014 stating that the Deputy Director, Periyar Tiger Reserve, Thekkady,
Kerala - 3rd respondent herein, in violation of the lease deed of 1886 and without any concern for ecology and environment, has encroached and taken up the construction of Mega Car Park works in the water spread area of Mullai Periyar
Reservoir and if the activity is continued, it would lead to disastrous consequences. The lease deed dated 29.10.1886 was entered into between the government of Maharaja of Travancore and the Secretary of State for India in
Council, by which all that tract of land part of the territory of Travancore situated on or near the Periyar River bounded on all sides by a contour line +155 feet above the deepest point of the bed of the said Periyar River at the site of the dam containing 8,000 acres or there about, was given on lease for a term of 999 years. Subsequently, the State of Kerala executed two supplemental agreements dated 29.5.1970 without changing the basic character of the 1886 agreement. As per the lease deed dated 29.10.1886, the State of Tamil Nadu is eligible to divert all waters flowing into through over or from the leased land which is an extent of
8,000 acres bounded by +155 feet contour to the Vaigai Basin in Tamil Nadu.
The water spread area of Mullai Periyar Reservoir upto + 155 feet contour
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corresponds to + 873.20 m with reference to Mean sea Level (MSL) which is marked in the Government of India Topo Sheet 58-G/2/SE. Therefore, the construction activity taken up by the 3rd respondent fall towards Northern end of the Mullai Periyar Reservoir and it is a water spread area.
17. Further, it is the case of the State of Tamil Nadu that when the State of
Kerala raised the issue with regard to the legal right claimed under the lease deed of 1886 as to whether it is valid and binding and enforceable, in the suit
O.S.No.3 of 2006 filed by the State of Tamil Nadu, the Hon‟ble Supreme Court in its judgment dated 7.5.2014 has concluded that the lease deed executed between the Government of the Maharaja of Travancore and the Secretary of
State for India in Council on 29.10.1886 is valid and binding on the State of
Kerala in view of the supplemental agreement dated 29.5.1970. It is further stated that the legal character of the forest/water spread of the Mullai Periyar
Dam leased to the State of Tamil Nadu for storing water is undisputed and it is not known under what Rule the 3rd respondent obtained permission from the competent authorities for developing the Mega Car Parking Complex and in any event no work should be taken up in the water spread area as the maximum water level of the dam is + 873.20 m and no construction activity can be carried out below the level of + 873.20 m. The Mega Car Park construction work in the water spread area of Mullai Periyar Reservoir consists of battery car shed, shop,
2 reception blocks, toilet block, cafeteria and Sewage Treatment Plant and this construction activity may generate pollution which ultimately affects the water of the reservoir which is diverted to Vaigai Basin via Cumbum Valley for drinking and agricultural purposes in Tamil Nadu. So when the activity is directly related to the water spread area of the reservoir, the State of Kerala even did not inform the State of Tamil Nadu which operates and maintains Mullai Periyar Dam as per the lease deed of 1886 which is held valid and binding between the State of
Tamil Nadu and Kerala by the Hon‟ble Supreme Court by judgment dated
7.5.2014. The State of Tamil Nadu has also filed a suit in Diary No.32108 of 2014
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before the Hon‟ble Supreme Court and the same is yet to be numbered and listed for hearing.
APPLICATION No.212 OF 2014
18. Stating that he is a Tour Guide and has been in the field for the past several years, one, Abraham Thomas, resident of Mavilapurayidam, Murukady
P.O, Via Kumily, Idukki District, Kerala, has filed the application aggrieved by the illegal destruction of the forest land in violation of the Forest (Conservation) Act,
1980 and illegal filling of wetland in violation of Wetland (Conservation and
Management) Rules, 2010 and also the Kerala Conservation of Paddy Land and
Wetland Act, 2008 besides the Biological Diversity Act, 2002 due to the activities of the State of Kerala in the Periyar Tiger Reserve, Thekkady. It is stated by the applicant that the application has been filed raising an important issue concerned to the environment. He alleges that the activities being carried out by the 3rd and
5th respondents are detrimental to the cause of wildlife and the activities are taken up under the guise of Tiger conservation. The car parking site proposed by the 5th respondent, is a wetland for which purpose filling of the land is taking place and consequently enormous damages are going to be caused to the environment. Though the 3rd respondent who claims that he is concerned about the death of wildlife due to traffic in Reserve and there is a need to shift the car parking site, should have selected alternate site adjacent to the bus stand in
Kumily Town which is also owned by the Tiger Reserve instead of filling the wetland and damaging the environment and moreover, the activities of the 3rd respondent are nothing but illegal commercialisation of the Reserve which is prohibited by law. It is a fact that the 4th respondent vide order dated 21.3.2013 has approved the TCP for the Periyar Tiger Reserve, however, one is not permitted to go ahead with the activities without taking approval under the concerned Acts, particularly the Forest (Conservation) Act, 1980, and Wildlife
(Protection) Act, 1972 and in this case, without getting any approval, the 3rd
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respondent is going ahead with the construction work, particularly cafeteria, restaurant block and car parking etc., which are not permissible under the Forest
(Conservation) Act, 1980. It is the further case of the applicant that the respondents have not obtained any clearance under the Forest (Conservation)
Act, 1980 and have also not submitted any plan for approval of the Hon‟ble
Supreme Court. The site at Anavachal where the car parking facility is proposed is located in the wetland and it is part of the water spread area of Mullai Periyar reservoir. The activity is totally prohibited under the Wetland (Conservation and
Management) Rules, 2010 as well as Kerala Conservation of Paddy Land and
Wetland Act, 2008. The PTR is rich in bio-diversity and the park management without assessing the impact of the activity on the bio-diversity, is going ahead with the work which deserves to be stopped.
19. The 3rd respondent Deputy Director (Project Tiger), Periyar Tiger
Reserve has filed reply affidavit dated 14.10.2014 making averments similar to the reply filed in Application No.89 of 2014 and therefore there is no need to again record the submissions made by the 3rd respondent.
20. The 6th respondent Kerala State Pollution Control Board (Board) has filed reply dated 3.10.2015 stating that the 3rd respondent Deputy Director,
Periyar Tiger Reserve has submitted an application on 27.10.2014 to the Board for obtaining „consent to establish‟ for the proposed amenities. The said application was scrutinised and found incomplete and hence a clarification was sought vide letter dated 21.1.2015 with a request to make corrections and resubmit the application. However, the 3rd respondent informed the Board on
18.4.2015 that the proposed construction activities at Anavachal are put on hold due to the stay order granted by the NGT and as and when the works are undertaken they will submit fresh application to take necessary clearances from the Board.
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21. Vide order dated 22.8.2014 the State of Tamil Nadu, represented by
Secretary to Government, PWD was impleaded as Respondent No.7 and subsequently in M.A.No.235 of 2014 vide order dated 20.11.2014 the Periyar
Tiger Conservation Foundation, represented by the Trustee, Deputy Director,
Periyar Tiger Reserve has been impleaded as Respondent No.8. The respondent
No.2, 3 and 5 have not chosen to file any separate reply/affidavit stating that since the issues raised in Application No.89 of 2014 are similar to the present application and the reply filed in Application No.89 of 2014 forms part in this application also. The 7th respondent State of Tamil Nadu has filed a memo dated
4.9.2014 stating that they may be permitted to file a common typed set of papers in Application No.89 of 2014 and Application No.212 of 2014 as they are inter- related and similar in nature. And thus common typed set of papers was permitted to be submitted in both the Application No.89 of 2014 and Application
No. 212 of 2014.
Discussion and Conclusion:
22. We have noticed from the aforesaid pleadings that the issues raised in both the Applications viz. Application No.89 of 2014 and Application No.212 of
2014 are pertaining to the construction and developmental activities undertaken in the buffer zone of Periyar Tiger Reserve by the Periyar Tiger Conservation
Foundation. The applicants are alleging that the activities are in violation of law.
In both the applications they have put forth more or less similar grounds.
Therefore, we decided to deal the applications together and dispose by a common order.
23. In Application No.89 of 2014 which was admitted on 10.3.2014, the
Tribunal granted an interim order of injunction restraining the respondent Nos. 2 to 5 therein, from proceeding with the activities either developmental or constructional in the Periyar Tiger Reserve. The Application No.89 of 2014 is filed on the ground that the respondents Nos. 2 to 4 under the guise of approved
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TCP, are destroying 20 acres of wildlife habitat inside the Tiger Reserve. The order dated 10.3.2014 was subsequently modified on 8.5.2014, after hearing the contentions put forth by both the parties, to the extent of permitting the 3rd respondent in Application No.89 of 2014, to complete the construction in respect of the cafeteria since the facts and circumstances do warrant for making such modification. Subsequently by order dated 26.5.2014, after hearing the submissions, the Tribunal modified the earlier order to the extent of permitting the
3rd respondent to go ahead with the construction of the anti-poaching sheds and shifting of car parking facility within Kumily Town area, since no impediment was felt to permit shifting of the car parking from the boat landing point to the periphery of the Reserve with the condition not to cut or fell any tree. The 2nd respondent State of Kerala was directed to monitor the activities.
24. In the mean time, the Government of Tamil Nadu filed M.A.No.212 of
2014 in Application No.89 of 2014 with a prayer for impleading and M.A.No.213 of 2014 with a prayer to grant injunction restraining the respondents from proceeding with any construction, earth filling or any related developmental activity, including Mega Car Parking in the water spread area of Mullai Periyar
Reservoir falling in the area leased and in possession of the State of Tamil Nadu.
Therefore, by order dated 5.9.2014 the Tribunal passed further orders, directing to maintain status quo and not to make any further development or construction activities in the Periyar Tiger Reserve. Thus, in effect the status quo order dated
5.9.2014 prohibited all the activities in the areas not only in respect of the land leased to the State of Tamil Nadu but also other areas falling in the Tiger
Reserve in Idukki District which are situated in the territory of State of Kerala.
25. Original Application No.212 of 2014 was admitted on 14.8.2014 and in the presence of both the parties, the Application Nos.89 and 212 of 2014 were taken up together. while the learned counsel appearing for the 6th respondent,
Periyar Tiger Conservation Foundation, submitted that a civil suit has been filed
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by the Government of Tamil Nadu before the Hon‟ble Supreme Court, seeking the same relief asked for before this Tribunal and hence the interim order should be vacated. However, the counsel for the State of Tamil Nadu argued that though it is a fact that a civil suit has been filed before the Hon‟ble Supreme Court by the
State of Tamil Nadu it is yet to be numbered and the present proceedings going on before the Tribunal, are initiated much earlier and this fact was also mentioned in the civil suit filed before the Supreme Court.
26. The applicants in both the Applications viz. 89 and 212 of 2014 are contending that the activities of the 5th respondent are in violation of law, irrespective whether the site falls outside or inside the area leased to the State of
Tamil Nadu, and illegal and detrimental for the conservation of wildlife and protection of environment. While the parties were in controversy regarding the place where the activities are being carried out, the Tribunal felt it necessary to ascertain the exact location of the site, where the activities are being carried out and also what kind of activities are being carried out. For that purpose, a Two
Member Committee consisting of responsible officers nominated by the Surveyor
General of India and Inspector General of Forest has been appointed with a direction to the Committee to inspect the areas under question and submit its report on the following:
(i) The area within which the activities of the Periyar Tiger Conservation
Foundation are taking place; and
(ii) The nature of the activities that are taking place
Accordingly, the Committee made an inspection and submitted the report on
2.7.2015.
27. As the status quo order dated 5.9.2014 continued to be in operation, the State of Kerala filed M.A. No. 231 of 2014 in Application No.89 of 2014 and
M.A.No.175 of 2015 in Application No. 212 of 2014 to vacate the stay order and
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permit the State of Kerala to undertake the construction and developmental activities as per the TCP approved by NTCA. It was argued by the learned
Additional Advocate General of the State of Kerala that the status quo order of the Tribunal dated 5.9.2014 is beyond the prayer of the State of Tamil Nadu made in M.A.No.213 of 2014 and by virtue of the status quo order, the
Government of Kerala is unable to carry out any conservation and management activity in the Tiger Reserve as per the statutorily approved TCP by NTCA even in the area which is within the State of Kerala. The learned Additional Advocate
General would further submit that for the time being the prayer as asked for by the State of Tamil Nadu in M.A No. 213 of 2014 for granting injunction restraining the respondents from proceeding with any construction related to developmental activities including Mega Car Parking in the water spread area of Mullai Periyar
Reservoir falling in the area leased and in possession of the State of Tamil Nadu, can be granted, subject to the final decision in the main application. The learned
Additional Advocate General of the State of Kerala while stating that there can be no objection for granting the relief as prayed for by the State of Tamil Nadu in
M.A.No.213 of 2014, activity in the remaining area falling in State of Kerala must be permitted only in accordance with law to implement the TCP as per the NTCA approval.
28. Considering the facts that the NGT being a specialised Tribunal concerned with environment and forests, the dispute relating to the boundaries of leased area between the States of Tamil Nadu and Kerala cannot be an impediment, if any order is passed purely in the interest of environment and wildlife.
29. Therefore, by the order dated 30.5.2017 interim order dated 5.9.2014, was modified to the effect that the status quo shall be in respect of construction, earth filling or any related developmental activity including Mega Car Parking in the alleged water spread area of Mullai Periyar Reservoir, falling in the area
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leased and in possession of the State of Tamil Nadu and whatever activity that is taken up by the State of Kerala in the Tiger Reserve, should be in accordance with law and as per the approval granted by the NTCA.
30. The Tribunal, considering the various aspects of the environment, forests and wildlife and incidents of death of wild animals in the Tiger Reserve because of allowing large number of tourist vehicles to enter the Reserve, earlier by order dated 17.2.2017, has permitted the State of Kerala to shift the vehicle parking site from the boat landing point to the periphery of the Reserve in Kumily town at Anavachal purely in the interest of protection of environment and wildlife, making it clear that no further development and no further earth filling or laying floor with cement concrete or putting of tar or laying tiles or any other construction at the site, should be carried out.
31. Considering all the above facts, the pleadings, the documents and the arguments of the learned counsel for all the parties the following points arise for consideration
(i) Whether the plea of state of Tamil Nadu that the site at Anavachal
where the vehicle parking facility is proposed to be shifted and the
proposed amenities to be established for the benefit of tourists
visiting the Tiger Reserve, falls within the Mullai Periyar reservoir
water spread area and lies in the area leased to the State of Tamil
Nadu and such activities amount to infringement of rights of the State
of Tamil Nadu violating the lease agreement and the orders of the
Hon’ble Supreme Court, is to be resolved in these applications.
(ii) Whether the site proposed for shifting of vehicle parking facility is
located in a wetland in violation of the statutory provisions and
whether such activities lead to destruction of ecology and
environment as well as biodiversity in the area.
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(iii) Whether the establishment and development of eco-tourism
facilities in the Periyar Tiger Reserve as per the TCP approved by the
NTCA is in violation of Forest (Conservation) Act, 1980 and further
clearance under the Forest (Conservation) Act, 1980 is necessary.
Now we examine the issues point-wise.
32. Point No.1: The objection raised by the State of Tamil Nadu is that the
Mega Car Parking Facility falls in the water spread area of Mullai Periyar Dam leased to the State of Tamil Nadu under the lease agreement dated 29th October
1886 and affirmed by the subsequent agreement of 1970 which has been held valid as per the judgment of the Hon‟ble Supreme Court dated 7.5.2014 in
O.S.No.3 of 2006.
33. The case of the State of Tamil Nadu is that the proposed activity taken up by the Authorities of Periyar Tiger Reserve of the State of Kerala is nothing but trespassing into the leased area and in violation of the agreement. The
Government of Maharaja of Travancore concluded an agreement dated 29th
October, 1886 with the Secretary of State for India in Council, Fort St. George,
Madras whereby about 8,000 acres of land was leased for the execution and preservation of the irrigation works and other works ancillary thereto on the
“Periyar Project”. Pursuant to the said agreement, the Government of Madras constructed at its cost, the irrigation project across River Periyar during the years
1887-1895. The agreement provides full rights, power and liberty to the then
Government of Madras to construct, make and carry out work on any part of the said lands demised up to the contour level of +155 feet from the deepest point of river bed of Periyar river at the dam site.
34. State of Kerala executed two supplemental agreements dated
29.5.1970 without altering the conditions and covenants of the agreement of
1886. By the first supplemental agreement, the State of Tamil Nadu surrendered the fishing rights in the leased land and also agreed to the upward revision of the
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rent to the leased land and the second supplemental agreement conferred right to the State of Tamil Nadu to generate power and construct all facilities required for power generation for which an additional extent of 42.7 acres of land was leased to the State of Tamil Nadu.
35. When the State of Kerala raised an issue as to whether the legal right claimed under the agreement of 1886 is valid and binding on the State of Tamil
Nadu, in the suit O.S.No.3 of 2006 the Hon‟ble Supreme Court in the decreed order dated 7.5.2014 has held that the lease deed executed between the government of Maharaja of Travancore and the Secretary of State for India in
Council on 29th October 1886 is valid and binding.
36.The Additional Advocate General of State of Tamil Nadu vehemently argued that water spread area of Mullai Periyar Dam upto +155 feet contour corresponds to +873.20 m above MSL and thus the land leased to the State of
Tamil Nadu is limited within +155 feet at the deepest point of the river bed at the
Mullai Periyar Dam site as it stood in 1886 that enables the State of Tamil Nadu to have full right over the area and the State of Kerala cannot take up any establishment or developmental activities which otherwise amounts to violation of legal right and the proposal to construct the Mega Car Parking facility at
Avanachal in Kumily Town is nothing but infringement on the rights of the State of Tamil Nadu as the activity is in violation of law. The contour line of +155 feet corresponds to +873.20 m above MSL at the deepest point of the river bed at the dam site. As per the claim made by the State of Tamil Nadu location of the proposed Mega Car Parking site is clearly in the water spread area and the extent of such alleged encroachment by the State of Kerala is about 3 acres and the total area proposed to be encroached by the State of Kerala is up to about 20 acres. The area encroached by the State of Kerala lies in the North-East end of the water spread area. It is argued by the Additional Advocate General of the
State of Tamil Nadu that immediately after noticing such unlawful activity by the
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State of Kerala, the Executive Engineer, WRD, Periyar Dam, Cumbum inspected the site on 3.6.2014 and found that the work was going on and therefore immediately on 4.6.2014 addressed a letter to the Deputy Director, Project Tiger,
Periyar Tiger Reserve, Thekkady to stop all the activities and in fact the issue was also taken up at the higher level by writing a letter by the Chief Secretary of
Tamil Nadu to the Chief Secretary of State of Kerala with a request to issue instructions to the concerned department to stop the construction activities in the leased area forthwith. The objection raised by the State of Tamil Nadu is that the
Tiger Reserve Authorities are not only resorting to encroachment in the leased area, they are also dumping and spreading the earth and levelling the ground level below +155 feet contour line and considering the prayer made in the
Application No.212 of 2014 this Tribunal has granted injunction on 5.9.2014.
However, considering the issue that it is an Inter-State dispute, the State of Tamil
Nadu has filed suit in O.S.No.4 of 2014 before the Hon‟ble Supreme Court with the prayer to grant a decree of permanent injunction restraining the State of
Kerala from trespassing/encroaching upon the area leased to the State of Tamil
Nadu under the agreement of 1886 and affirmed by the supplemental agreements of 1970 and 1986 and from making any further construction of Mega
Car Parking Facility at Anavachal in Kumily Town.
37. The State of Kerala has disputed the averments made by the State of
Tamil Nadu that the Car Parking Facility is falling in the water spread area of
Mullai Periyar Reservoir. Considering the controversy regarding the place where the activities are proposed to be carried on, the Tribunal constituted a Two
Member Committee consisting of the Members nominated by the Surveyor
General of India and the Inspector General of Forest to make an inspection and submit report. However, the Surveyor General of India came up with a request to conduct MSL based survey to fix the boundary and accordingly the Tribunal in the order dated 16.2.2015 has permitted the Surveyor General of India to take up
MSL based survey for which an amount of Rs.14,60,000 was ordered to be paid
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by sharing the amount equally by the State of Tamil Nadu and Kerala.
Subsequently, after filing the report on 2-7-2015 and as claimed by the Surveyor
General of India that the total expenditure incurred was Rs.18,09,000 and the balance amount of Rs.3,49,000 has to be paid, both the States were again directed to pay the balance amount sharing equally. Meanwhile, the State of
Tamil Nadu has filed suit O.S.No.4 of 2014 before the Hon‟ble Supreme Court.
When the subject matter of dispute is between the State of Tamil Nadu and
Kerala and when once the Apex Court is seized of the matter, no court can take up the issue and at this stage the Tribunal cannot look into the issue with regard to the dispute whether such car parking facility at Anavachal amounts to encroachment in the leased area and in violation of agreement.
38. At the outset it is to be noted that the land dispute based on the lease agreement of 1886 and supplemental agreement of 1970 is not a dispute coming within the ambit of section 14 of N.G.T Act 2010. The State of Tamil Nadu has to settle the said dispute before the appropriate authority in accordance with law.
Therefore irrespective of the earlier interim orders passed by the Tribunal that question cannot be resolved in this application. It is the admitted case that the
State of Tamil Nadu realizing the legality of choosing the forum of this tribunal has already moved an application to amend the plaint in the Original Suit 4 of
2014 pending before the Hon‟ble Supreme Court raising the very same claim pleaded before the Tribunal. In fact the State of Tamil Nadu has relied on the order dated 15th September 2017 of the Hon‟ble Supreme court where both the
States of Tamil Nadu and Kerala were directed to sit together and discuss and resolve the dispute. It was even pleaded by the state of Tamil Nadu to adjourn the case till the suit pending before the Hon‟ble Supreme Court is disposed.
39. When the Hon‟ble Supreme Court has already seized of the said matter, in any case the Tribunal cannot decide the question. The dispute based on the plea that the proposed construction site is within the lease hold water
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spread area, can only be decided by the Hon‟ble Supreme Court. We make it clear that the decision in this case on that aspect is subject to the decision of the
Hon‟ble Supreme Court in O.S. No. 4 of 2014. Hence we do not propose to dwell upon that question leaving it to be resolved in O.S. No. 4 of 2014 pending before the Hon‟ble Supreme Court.
40. Point No.2: The learned counsel for the applicant in Application No.
212 of 2014 vehemently argued that the site at Anavachal in Kumily town where the Periyar Tiger Reserve authorities are undertaking works to establish vehicle parking facility, is a wetland and attracts the provisions of the Wetland
(Conservation and Management) Rules, 2010 and also the Kerala Conservation of Paddy Land and Wetland Act, 2008. The learned counsel argues that the PTR is rich in bio-diversity and the park management without assessing the impact of the activity on the wetland and bio-diversity existing at the site, is going ahead with the work which deserves to be stopped. However, the records produced before us reveal that though the site at Anavachal is a little low lying area, it is not a wetland and neither the provisions of the Wetland (Conservation and
Management) Rules, 2010 nor Kerala Conservation of Paddy Land and Wetland
Act, 2008 are applicable to the site since it is neither a paddy field nor qualifies to be defined as „wetland‟ under the Wetland (Conservation and Management)
Rules, 2010 or Wetland (conservation and management ) Rules 2017 notified under Environment (Protection) Act, 1986. The respondent Periyar Tiger
Conservation Foundation has filed the report of the Tahsildar, addressed to the
Forest Range Officer, Thekkady stating that the ground at Anavachal for the past
119 years has never been inundated and it is not a water spread area and it is part of Kumily Town and it is surrounded by well maintained roads and used by the local people. Presently, the site proposed to be used by the Park authorities is hardly is to an extent of 3 acres located on the fringe of the buffer zone of the notified Periyar Tiger Reserve. The site is under the threat of encroachment and
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the residents of Kumily Town are causing damage to the environment by dumping garbage and also letting sewage at the site.
41. Under the newly notified Wetland (Conservation and Management)
Rules, 2017, the term „wetland‟ is defined as follows:
"An area of marsh, fen, peat land or water; whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six meters, but does not include river channels, paddy fields, human-made water bodies/tanks specifically constructed for drinking water purposes and structures specifically constructed for aquaculture, salt production, recreation and irrigation purposes".
It is apparent that the site at Anavachal where the car parking facility is proposed to be established is neither a water body nor a paddy field and does not qualify to be noted as a 'wetland'. Therefore, the question of violation of statutory provisions does not arise. The site is bereft of any natural vegetation. It is in Kumily town and adjacent to the road where there are dwelling units and mere allowing of parking of vehicles at the site is not going to damage the environment or biodiversity. The photographs and documents produced before us show that it is a piece of larger extent of plain land. It is beyond one‟s comprehension that how the applicant in Application No.212 of 2014 is vehemently arguing that the site is going to be severely affected by allowing such activities. It is located in Kumily Town at the fringe of the buffer zone of the
Reserve and no damage to the vegetation or cutting of trees is involved.
42. Point No.3: Originally the Periyar Wildlife Sanctuary with an extent of
177 sq.km was constituted in 1950. It was brought under the Project Tiger in
1978 as the 10th Tiger Reserve in the country. During 1982 an extent of 350 sq.km was notified as Periyar Park and finally in 2007 the total area of 881 sq.km was notified as Core or critical Tiger Habitat which includes 733 sq.km of Periyar
Wildlife Sanctuary and 148 sq.km of Reserve Forest of adjoining range of Ranni region. Subsequently an extent of 44 sq.km of Periyar Wildlife Sanctuary was
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notified as buffer to the Tiger Reserve in 2011. Therefore, presently the total extent of Periyar Tiger Reserve is 925 sq.km out of which 881 sq.km is the core area and the remaining 44 sq.km is the notified buffer.
43. Keeping in view that there is a tremendous pressure on the Tiger
Reserves in the country and all out efforts have to be made to conserve the Tiger population in the wild, the Central Government established NTCA, a statutory body/authority of MoEF&CC, for strengthening Tiger conservation and to oversee the activities of Tiger conservation by amending the Wildlife (Protection) Act,
1972 in 2006 (Act No. 39 of 2006) duly inserting Chapters IV-B and IV-C. The
NTCA is fulfilling its mandate within the ambit of Wildlife (Protection) Act, 1972 through advisories/normative guidelines, based on appraisal of Tiger Status, ongoing conservation initiatives and recommendations of specially constituted committees. The definitions incorporated in Section 38K of Chapter IV-B of the
Wildlife (Protection) Act, 1972 are as follows:
"38K. In this Chapter,-
a) “National Tiger Conservation Authority” means the Tiger Conservation Authority constituted under section 38L;
b) “Steering Committee” means the Committee constituted under section 38U;
c) “Tiger Conservation Foundation” means the foundation established under section 38X;
d) “Tiger Reserve State” means a state having Tiger reserve;
e) “Tiger Reserve” means the area notified as such under section 38V".
44. The Central Government is authorised to constitute the NTCA to perform its functions and accordingly the NTCA was constituted in the
MoEF&CC. The Chairperson of the NTCA is the Minister in charge of the
MoEF&CC and consists 3 Parliament members, 8 Experts in the field of Tiger conservation besides the Secretary as well as Director General of Forests who is
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ex- officio Special Secretary, MoEF&CC as members. Section 38 L deals with the constitution of NTCA which is as follows:
"38L. (1) The Central Government shall constitute a body to be known as the National Tiger Conservation Authority (hereinafter in this Chapter referred to as the Tiger Conservation Authority), to exercise the powers conferred on, and to perform the functions assigned to it under this Act.
(2) The Tiger Conservation Authority shall consist of the following members, namely:-
a) the Minister in charge of the Ministry of Environment and Forests- Chairperson;
b) the Minister of State in the Ministry of Environment and Forests- Vice Chairperson;
c) three members of Parliament of whom two shall be elected by the House of the People and one by the Council of States;
d) Eight experts or professionals having prescribed qualifications and experience in conservation of wild life and welfare of people living in Tiger reserve out of which at least two shall be from the field of tribal development;
e) Secretary, Ministry of Environment and Forests;
f) Director General of Forests and Special Secretary, Ministry of Environment and Forests;
g) Director, Wild Life Preservation, Ministry of Environment and Forests;
h) six Chief Wild Life Wardens from the Tiger reserve States in rotation for three years;
i) an officer not below the rank of Joint Secretary and Legislative Counsel from the Ministry of Law and Justice;
j) Secretary, Ministry of Tribal Affairs;
k) Secretary, Ministry of Social Justice and Empowerment;
l) Chairperson, National Commission for the Scheduled Tribes;
m) Chairperson, National Commission for the Scheduled Castes;
n) Secretary, Ministry of Panchayati Raj;
o) Inspector General of Forests or an officer of the equivalent rank having at least ten years experience in a Tiger reserve or wildlife management, who shall be the Member-Secretary, to be notified by the Central Government, in the Official Gazette".
It is clear that the NTCA is a statutory body/authority with its members
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drawn from a wide range of society representing public representatives, officials and the experts in the field.
45. The comprehensive guidelines for Tiger conservation and tourism as provided under section 38 O (1) (c) of the Wild Life (Protection) Act 1972, dated
15-10-2012 notified by the NTCA, MoEF&CC enables to undertake tourism activities in the Tiger Reserves and the guidelines lay certain normative standards. Para 10.17 of the guidelines deal with Eco-tourism activities which is reproduced below:
“10.17. Fostering tourism or ecotourism in tiger reserves
„Tourism‟ in the context of Tiger Reserve is contemplated as „ecotourism”, which needs to be ecologically sustainable nature-tourism. This is emerging as an important component tourism industry. It is distinct from „mass tourism‟, having sustainable, equitable, community based effort for improving the living standards of local, host communities living on the fringes of tiger reserves. Ecotourism is proposed to be fostered under „Project Tiger‟ to benefit the host community in accordance with tiger reserve specific Tourism plan forming part of the Tiger conservation Plan, subject to regulation as per carrying capacity, with a focus on buffer areas. Since, tourism has been happening in areas of national parks and wildlife sanctuaries which are now happening in areas as core or critical tiger habitat, regulated low impact tourism(visitation) would be allowed in such areas subject to cite specific carrying capacity. However, no new tourism infrastructure should be permitted in such core and critical tiger habitats. Further the buffer forest areas should also be developed as wildlife habitats with the active involvement of local people living in such areas. This would provide extended habitat to tiger population for its life cycle dynamics, besides benefitting local people from ecotourism activities in such areas while reducing the resources dependency of people ion core or critical tiger habitats and human-tiger interface conflicts. The opportunities for stakeholders would include management of low cost accommodation for tourism, providing guide services, providing sale outlets, managing excursions, organising ethnic dance and the like”.
46. The Hon‟ble Supreme Court in the case of AJAY DUBEY Vs. UNION
OF INDIA & OTHERS in SLP (Civil) No.21339 of 2011 dated 16.10.2012 has considered regulated tourism as part of conservation efforts in the Tiger
Reserves. The operative portion of the order reads as follows:
“Heard learned counsel for the parties.
On 24th July, 2012 this court passed an order that till the final directions are issued by this court with reference to the Guidelines submitted by the National Tiger conservation Authority of India, core
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zone or the core areas in the Tiger Reserved Area will not be used for tourism.
The National Tiger Conservation Authority [for short „the Authority‟] has by Notification dated 15th October, 2012 notified the comprehensive Guidelines for Tiger Conservation and Tourism. Part B of these Guidelines is titled: “guidelines for Tourism in and around Tiger Reserves”. The Guidelines for Tourism in and around the Tiger Reserve have been framed by virtue of the powers of the Authority under section 38(O)(1)(c) of the Wild life Protection Act, 1972[ for short „the Act‟] which empowers the Authority to lay down normative standards for tourism activities in buffer and core area of Tiger Reserves.
Now that the guidelines for Tourism in and around the Tiger Reserve have been notified by the Authority, we modify the aforesaid interim order dated 24thJuly,2012 and direct that henceforth tourism activities will be strictly in accordance with the guidelines for Tourism in and around Tiger Reserves notified in part B of the aforesaid Notification dated 15th October, 2012. All the concerned authorities will ensure that the requirements in the aforesaid Guidelines for Tourism in and around the Tiger Reserves are complied with before tourism activities recommence.
We make it clear that we have not declared that notification dated 15th October, 2012 either intra vires or ultra vires and if any party is aggrieved by the notification dated 15th October, 2012 of the Authority it will be open to the aggrieved party to challenge the same before the appropriate forum.
it has been brought to our notice by the learned Additional Solicitor General that under sub-section (3) of section 38(v) of the Act, the state government is required to respective State Governments will prepare the Tiger conservation plan within six months from today and submit the same to the National Tiger conservation Authority for approval in accordance with Section 38(O) (1) (a) of the Act.
While passing this order modifying the earlier interim order, we have taken note of the submission of the learned Additional Solicitor General that tourism activities may recommence strictly in accordance with the Guidelines for Tourism in part B as indicated above. All the applications for vacating or modification of interim order dated 24th July, 2012 stand disposed of.
The matters are released from part-heard.
List the special Leave Petition along with other pending interlocutory applications and Writ Petition (c) Nos. 387 of 2012 and 438 of 2012 on 27th November, 2012”.
47. Subsequently the Hon‟ble Supreme Court while finally disposing the
SLP (Civil) No.21339 of 2011 with WP (C) No. 387 of 2012 and WP (C) No. 438
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of 2012 dated 29-3-2016 recorded the following observations which have become final.
“‟This special Leave Petition is directed against an interim order dated 19th January, 2011 passed by the High Court of Madhya Pradesh at Jabalpur in writ petition No. 12351 of 2010 filed in public interest. The high Court has, upon a prima facie consideration of the matter, declined to issue any interim directions restraining tourism activities within the core and critical areas of tiger reserve in the state of Madhya Pradesh.
Several directions have been issued by this Court from time to time pursuant whereto the National Tiger Conservation Authority has by a notification dated 15th October, 2012 notified comprehensive guidelines for tiger conservation and tourism. Part B of the said Guidelines titled “guidelines for tourism in and around Tiger reserves” sets out the board Parameters within which such tourism activities have been permitted.
When the matter came up before this court on 16th October, 2012, this court noted the Guidelines, aforementioned, and while modifying interim order dated 24th July, 2012 directed that henceforth tourism activities will be strictly in accordance with the said Guidelines. This court also directed the authority concerned to ensure that the requirements in the aforesaid Guidelines are complied with before tourism activities are recommenced. It was clarified that the validity of notification dated 15th October, 2012 had not been examined and that any party feeling aggrieved of the said notification would be free to challenge the same before an appropriate forum”.
48. The present vehicle parking site is located deep inside the forest 2.5 km away from the entrance gate of the Tiger Reserve and the road passes through thick vegetation crossing the protected corridor hampering the movement of wild animals particularly elephants. The shifting of the vehicle parking site from the boat landing point to the periphery of the buffer at Kumily town will prevent large influx of tourist vehicles inside the Reserve which otherwise going on for a long period causing enormous pressure on the Reserve and affecting the wildlife and environment. The location of such car parking facility and development of basic minimum facilities to the visitors including large number of foreign visitors on the fringes of buffer area of the Reserve will be only to protect wildlife and environment with due recognition to the livelihood needs, developmental, social and cultural rights of the local people and eco-
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tourism activities will impact the local community to reduce the resource dependence on the forests and wildlife and across the world the Protected Areas are thrown open to the visitors not only for recreation purpose also for understanding the scientific value and importance of nature conservation.
49. Chapter 23 of the TCP approved by the NTCA, highlights the issues related to development of tourism in buffer area. Chapter 23.3.5 to 23.3.8 of approved TCP reads as follows:
“23.3.5. Facilities related to Visitor Management
i. Vehicle Parking
In order to rationalize, it is strongly recommended to develop alternate parking bays at Anavachal along northern and eastern part of the meadow or any other alternative area suitable for purpose. This facility will reduce lots of biotic pressure and other vehicular pollution within the entrance gate to boat landing. This initiative will improve the regeneration of the existing parking area near boat landing and also will reduce the mortality of animals due to road hits. A detailed project will be prepared and implemented within the first two years of the plan period.
The visitors will be taken to the boat landing in the vehicles registered and operated by the Park management. In future, management will explore the viability of slow moving electric tram or metro coaches after appropriate approvals as per law.
The project will be prepared by PTCF with appropriate cost benefit analysis. DD (East) will implement the project.
ii. Development of Raman Park (Turtle Park)
Raman Park is presently used for parking vehicles and resting. Parking is proposed to be shifted to Anavachal. Considering the location of Raman Park and past utilization as picnic sport, the area has high potential for nature education and interpretation. The Park will be developed as a Children‟s Nature Park‟.
iii. Information Centre
Anavachal will be developed as a centre for visitor management, which will require information centre to cater to all the requirements of visitors. Tickets for entry to the Reserve and for various programmes will be available in the information centre. Facilities for online bookings and multiple counters in Kumily town will be explored to avoid crowding at the ticket counters. The Information centre will also have a separate block as orientation centre‟ to educate the visitors before entry.
Miniature information centre may also be installed at other locations like Depot complex of Kumily Range, Check post of Kumily Range, Gandhi
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Park, Old check post complex Thekkady, and other suitable locations within and outside the state. iv. Visitor facilities
Following amenities/facilities for visitors will be developed at the boat landing.
The existing cafeteria at boat landing is old and hence needs reconstruction. Basic amenities at boat landing are scattered and require consolidation. Hence the space of cafeteria (after demolishing the present structure) will be developed as a multi-use complex by constructing multi-story building (10 m height). The structure should merge with the surroundings. Building will house comfort facilities, cloak room, souvenir shop, rest room for the staff/EDCs, cafeteria and wildlife movie screening hall. All old scattered and unused buildings will be demolished.
A self-guided nature trail from entry point to boat landing will be developed for visitors to walk, enjoy nature and learn. This self- guided trial may have proper laying of path through granite stones or other ecofriendly materials, signages and displays in the shape of trees, animals, etc made from cement, cast iron, etc but suitable blending with the surrounding.
Artist/painters‟ zone, readers zone, resting zone, etc will be explored and developed without constructing any new structures.
Waste disposal bins will be kept at appropriate locations.
Plastic wastes will be recycled.
Good artistic, uniform, informative/educative signage will be placed at strategic locations.
Shuttle bus services from Anavachal to Boat landing and vice-versa.
Vehicle safari services from Vallakadavu to Gaviand vice-versa and Kochandi check post to Gavi and vice-versa.
Walk way around Anavachal meadow.
Upgrading information facilities at Boat landing.
Developing Butterfly Park/medicinal garden at bamboo thickets at Anavachal or any other suitable locations.
Pilgrim amenity centre near Sastha temple near Holiday Home.
Online booking for all ecotourism related activities.
Multiple ticket counters in Kumily and other suitable locations within and outside the State.
Development of sewage treatment plant at bamboo thickets of Anavachal or any other suitable locations.
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The existing DD office will be modified into nature Education Centre for conducting Nature Camps and other related activities.
A conference hall/seminar hall/auditorium for the purpose of training, classes, nature education, meeting, etc will be developed in the buffer zone.
VVIP guesthouse and Executive hostel will be developed at the existing old building of office of Periyar Foundation after demolishing the same or any other suitable location in the buffer zone. Any infra-structure as and when required in the interest of sustaining ecotourism activities, nature education, staff welfare, protection, etc. in buffer zone. v. Developing Eco-shop Complex
Existing Thekkady Range office building at old check post junction is old land unsuitable. Range Office is proposed to be shifted to the space available in the Vanasree dormitory. Building at old check post will be demolished and aesthetically designed as eco-shop complex. This complex will help in marketing of EDC products, souvenirs, Ds and publications on wildlife. Sufficient space can also be provided for screening wildlife movies. Camping facilities for resource persons can also be developed in this complex. Miniature eco-shops may be developed in other suitable locations in Kumily, within the outside the State. vi. Improvement of Gandhi Park
Gandhi Park has potential for education and interpretation which has not been fully utilized yet. For effectively using the area, following are to be developed:
Amphi-theater will be used for regular screening of wildlife films, local/tribal cultural programmes and annual film festival.
Existing building will be furnished for an exclusive Tiger Art Gallery with professionally designed interpretation materials.
Vehicle parking will be explored on the southern side.
Pilgrimage facilitation centre will be developed near Holiday Home in the pace available around the existing small temple. This area has a potential threat of encroachment.
23.3.6. Integrate tourism initiatives in eco-development
Reserve has accepted models of integration of EDCs in the various tourism and eco-tourism programmes. Various developments proposed will be operationalized keeping processes of integration. Decisions/actions will be taken as per the institutional mechanism of participatory management.
23.3.7. Improve Nature Interpretation
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The status of existing nature education and interpretation programmes are discussed in Para 4.6. In order to enlarge and improve, the following are proposed.
I. Museum at RGC
The museum was started during 1990s and does not attract visitors presently. It is proposed to accommodate all administrative offices of PTR like Offices of DD (East), PTCF, AFVO, Wildlife Assistant, RO (Ecodevelopment, Research, Flying Squad) etc except Territorial Range Offices in RGC for improving coordination and efficiency in the administration. It is also proposed to develop the first floor of this building and necessary extension in future to accommodate conference hall, board room, library and other requirements.
Since the interpretation centre will be merged with the Natural History Museum in future, the present interpretation centre at RGC will be shifted when the building for the Natural History Museum gets ready. Till then the existing interpretation hall at RGC will be improved and maintained.
II. Nature Interpretation at Gandhi Park
The improvement and suitable use of facilities for nature interpretation are prescribed in Para 23.1.1.A(vi).
III. Development of interpretation materials
Reserve will continue to develop interpretation materials viz., souvenirs, brochures, pamphlets, field guides, CDs, Posters etc. Their quality will be improved. Laptops, LCD and other audio-visual equipment shall be procured to facilitate various awareness programmes.
Iv. Natural History Museum
Developing a Natural History Museum/interpretation centre has been under consideration for utilizing the opportunities of high visitation for creating nature awareness. It is proposed to develop a Natural History Museum in Kumily Range Office complex (2.6 ha), which is strategically located. The Range Office will function in the Depot compound at Kumily. Museum will be developed professionally. Experts will be contracted for designing and setting up the museum. Appropriate proposals are made in the budget.
The depot complex may be utilized for shifting the Kumily Range Office. The depot area may also be used for staff hostel, flats for staff, information centre, eco shop cafeteria, etc. The depot complex is within 600m from the boundary of PTR. The area shall be put to use for purposes of PTR also. The management of Kottayam Division will ensure that the depot complex is not used for any other purpose.
A portion of the existing check post of Kumily Range may be explored for ecotourism related facilities for PTR since it is situated in the heart of the town.
23.3.8. Judicious sharing of benefits to community and forests
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CBET programmes in PTR have a benefit sharing mechanism. The details of income from CBET programmes and expenditure are incorporated Annexure 7and 8. The detail of vehicles and the income from parking is incorporated in Annexure 3. The entire amount of parking is remitted as Government Revenue. The amount from CBET is spent for Park Welfare and local population through EDCs. Management has constituted PWF (Annexure 6).The mechanism will reviewed, strengthened and continued assessing possibilities of dovetailing with FDA”.
50. With regard to Managing Sewage discharged in the area which is a
cause of pollution even affecting the wildlife, the TCP lists the following activity
under chapter 23.4.d:
“The problem of sewage has been discussed in Para 4.5.1.5(f). Management will solicit the support of Kerala State Pollution Control Board, Kumily Panchayat, Environmental Management Agency Kerala and other stakeholders to develop a sewage treatment plant at a suitable place. This will reduce the pollution in the Lake and help the protection of habitat. There shall be a complete ban on burying, burning or otherwise disposing non-biodegradable or toxic waste in and around the tiger reserve. Proper plan for disposal for degradable waste shall be developed and strictly implemented. In order to overcome the existing problems of sewage from Kumily town to PTR, a sewage treatment plant is urgently required to be established. The recommended site for the sewage treatment plant will be the area between bamboo thickets near Anavachal and the tunnel area. The establishment of a sewage treatment plant will ensure floe of clean water into the reserve which will in turn improve wildlife health and the environment”.
51. The present vehicle parking site known as Raman Park and also known as Turtle Park, has become a threat for the wildlife as the tourist vehicles are allowed to park deep inside the forest. On an average about 300 vehicles enter the park daily and during peak season it goes up to 900. There is a steady increase in the tourist flow and number of vehicles entering into the park. When there is a heavy rush of tourist vehicles they are even parked along the road for
2.5 km length inside the boundary leading to damage to the vegetation, disposal of solid waste of plastic waste and also causing noise pollution. There are instances of speeding vehicles causing death to wild animals crossing the road between the check post at Thekkady and Raman Park. Parking of the tourist vehicles inside the park is affecting the Reserve and no new forest regeneration is allowed to come up. There are also instances of the wild animals consuming
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plastic carry bags containing leftover food materials by the tourists causing death and the proposed site at Anavachal where there is a severe threat of encroachment by the local people, was recommended for shifting of parking facility. Anavachal is located at the fringe of the park amidst thick population and a commercial establishment such as restaurants, hotels etc and the site is not accessible and not frequented by the wild animals. It is also found that the open site is at Anavachal used by tourists and residents for illegal parking of vehicles.
52. The respondent State of Kerala has produced copies of various documents pertaining to correspondence made between the NTCA and Chief
Wildlife Warden, State of Kerala for regulating vehicular and tourist flow inside the park and since the practice of allowing tourist vehicles to enter deep inside the park beyond the check post, is not in accordance with the tourism guidelines of NTCA and therefore there is an urgent necessity to shift the vehicle parking site to the fringe of the park. To prevent free entry of the unauthorized tourist guides to the Reserve, the Reserve Management has designated branded
Tourist Guides. The unauthorised local Guides enjoying the free entry into the
Reserve are indulging in canvassing at boat landing point and Raman Park and misguiding the tourists including foreign visitors. Due to the complaints made about the misguiding and cheating by the unauthorised guides reputation of the
Reserve is getting affected. Therefore, allowing private vehicles to enter into the park beyond the check post has to be stopped to prevent such unlawful activities.
53. The records placed before us also show that the entire sewage of
Kumily town which has got large number of Resorts, Hotels and Restaurants, is freely flowing without any treatment since there is no proper sewage system. It is estimated that about 3 Million litres of waste water is generated per day and the entire sewage water is allowed to enter into the canal to Periyar River and water from the lake is used for drinking purpose. Wildlife mortality due to consumption of contaminated water and throwing of waste materials is not uncommon and
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ultimately this water is carried to Tamil Nadu which is the source of drinking water affecting the health of the people in Tamil Nadu also. Construction of
Sewage Treatment Plant (STP) is an imminent necessity and we see that such activity which is environmental friendly should be allowed to be taken up. We find no merit in the argument made by the learned counsel for the applicant that establishment of such facility is in violation of the Forest (Conservation) Act,
1980.
54. The NTCA under Clause (c) of sub-section (1) of Section 38-O of the
Wildlife (Protection) Act, 1972 has power to lay down standards of tourism activities and guidelines for Tiger Reserves. Accordingly in pursuance of the powers conferred upon it, the NTCA issued Comprehensive Guidelines by
Notification dated 15.10.2012. The guidelines allow development of eco-tourism activities and nature conservation programmes in buffer area as per the approved TCP and do not prohibit such activities. Item 10.1.7 specifies the guidelines with regard to the various activities which are ecologically sustainable.
The eco-tourism is emerging an important component of tourism industry and it is proposed to be fostered under Project Tiger to benefit the local communities as per the approved TCP. In fact the guidelines clearly state that regulated tourism can be allowed in the buffer areas particularly by involving local people.
Therefore, the activities proposed by the Periyar Tiger Reserve authorities which are incorporated in the approved TCP and development of such facilities are in conformity with the guidelines issued by NTCA. In fact, the tourism infrastructure must confirm to environment friendly low impact architecture including utilisation of solar energy, waste recycling, water management, discharge only treated sewage and such activities should emerge in the surrounding habitat. Use of battery operated vehicles should also be encouraged and therefore the plan of the Periyar Tiger Reserve authorities is to stop the tourist vehicles at the entrance itself and ferry the tourists inside the park through battery operated vehicles is in consonance with the guidelines issued by NTCA and to prevent
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threat to the wildlife. We find that there is no impediment on the part of authorities of the Periyar Tiger Reserve to go ahead with the activities, subject to confirmation of the standards prescribed under the guidelines of the TCP as approved by the NTCA.
55. With regard to the contentions of the applicant that the establishment and development of tourism activities require clearance under various statutes particularly the Forest (Conservation) Act, 1980, the additional reply affidavit by the Chief Conservator of Forests (Central), MoEF&CC Regional Office,
Bangalore on behalf of the respondents 1 and 4 in Application No.212 of 2014, is to the effect that TCP was approved by NTCA in the letter dated 21.3.2013 wherein certain conditions are stipulated and at no stage of the implementation of the approved plan the objective of the Forest (Conservation) Act, 1980 and other
Acts will be overruled and those activities prescribed in the approved TCP which are not ancillary to conservation, development and management of forests and wildlife, will require clearance under the Forest (Conservation) Act, 1980.
56. Finding that there is a conflicting interpretation on whether such activities under the approved TCP require a further clearance under the Forest
(Conservation) Act, 1980, this Tribunal directed the Secretary, MoEF&CC himself to file affidavit clearly stating the position. Accordingly the Secretary, MoEF&CC filed affidavit dated 29.9.2016. The Secretary in his affidavit, has clearly stated that NTCA is a statutory body/authority of the MoEF&CC constituted under the enabling provisions of the Wildlife (Protection) Act, 1972 and as per the powers vested under Section 38-O (1)(c) NTCA lays down normative standards for tourism activities and guidelines for Project Tiger from time to time for Tiger conservation in the buffer and core area of Tiger Reserves and ensure their due compliance. The Secretary quoted the Hon‟ble Supreme Court order in the case of AJAY DUBEY Vs. UNION OF INDIA & OTHERS in SLP (Civil) No.21339 of
2011 dated 16.10.2012 wherein the Hon‟ble court has considered regulated
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tourism as part of conservation efforts in the Tiger Reserves. The operative portion of the order reads as follows:
“Several directions have been issued by this Court from time to time pursuant whereto the National Tiger Conservation Authority has by a notification dated 15th October 2012 notified comprehensive guidelines for tiger conservation and tourism. Part B of the said Guidelines titled “Guidelines for Tourism in and around Tiger Reserves” sets out the broad Parameters within which such tourism activities have been permitted. When the matter came up before this Court on 16th October, 2012, this Court noted the Guidelines, aforementioned, and while modifying interim order dated 24th July 2012 directed that henceforth tourism activities will be strictly in accordance with the said Guidelines.”
57. The Secretary fully concurred that the tourism activities approved in the TCP are in consonance with the guidelines issued by the NTCA which were also upheld by the Hon‟ble Supreme Court. The affidavit further states that the
TCP of the Periyar Tiger Reserve is approved by the statutorily constituted NTCA and the works questioned by the applicant are not out of the ambit of the eco- tourism activities. The Secretary also stated that the Hon‟ble Supreme Court in the judgment dated 25.11.2005 in I.A.No.1220 and I.A. No. 994 (regarding clarification of 14.2.2000 order) has stated that works in Protected Areas can be taken up provided the same are
a) Undertaken as per the management plan approved by the
competent authority,
b) are consistent with the provisions of Wildlife (Protection) Act, 1972,
c) are undertaken consistent with the National Wildlife Action Plan
where it is mentioned that one of the strategies for action enshrined
in the National Wildlife Action Plan2002-2016 was Wildlife Tourism
for which the action envisaged was preparation of a Tourism
Management Plan for each protected area,
d) are in conformity with the guidelines issued for the management of
the Protected Areas from time to time.
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58. The National Wildlife Action Plan inter alia enshrined the concept of addressing wildlife education to different target groups and to educate the tourists to protect the parks which form part of ecotourism activities. For this purpose it emphasizes provision for interpretation facility such as Information
Centre, good signage, nature trails and guided tours. When it was challenged that the construction of such facilities in the forest land attracts the Forest
(Conservation) Act, 1980, Hon‟ble Rajasthan High Court in Om Prakash
Chowdhary and Anr. Vs. State of Rajashan and Ors. (2005 KHC 5994) had occasion to interpret law on the use of forest land for setting up of Interpretation
Centre and on the question as to whether such activity is to be construed as a non forest activity. It was held that Forest (Conservation) Act, 1980 does not apply to the case and therefore permission of the Central Government to construct the Interpretation Centre is not required. Relevant Paras of the judgement read as follows.
“16.The learned counsel for the petitioner reading from Annexure VI (a) to the compilation called Forest (conservation) Act, 1980 Rules and guidelines, submitted that proposal s involving setting up of habitation, establishment of industrial; units, tourist lodges/ complex and other buildings are activities detrimental to the protection and conservation of the forest and as a matter of policy should not be entertained. The learned counsel laid emphasis on the word “outer building construction” occurring in Annexure VI (a) and submitted that building construction should never be allowed to come up in the reserved forest”. It needs to be pointed out that the words other building construction” occurring in Annexure VI(a) is associated with the words “proposal involving setting up of habitation, establishment of industrial units, tourist lodges/complex”. The words “proposals involving setting up of habitation, establishment of industrial units, tourist lodges/ complex” precede the word “other building construction”. The words other building construction” take colour from the words appearing before them. They mean building(s) of the type described by the antecedent words. The natures of the activities mentioned therein certainly are not undertaken for conservation of forest. Habitation, establishment of industrial units, tourist lodges/ complex and buildings of like nature for residential or commercial use are certainly not conductive to the forest and wildlife. But a building for the purpose of interoperation centre is not an building of the nature mentioned in annexure VI(a) since section 2 is not applicable to the building constructed to serve as the interpretation centre , Annexure VI(a) will not apply as well.
24. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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As is clear from the aforesaid provisions, the Chief Wild Life Warden is the authority, which is empowered to control, manage and maintain the sanctuaries and for that purposed within the precincts of the sanctuaries, carry out such works as he may consider necessary. He can also adopt such measures in the interest of wildlife as he may consider necessary for improvement of any habitat. The creation of an interpretation centre surely is a step in the interest of wildlife and for the improvement of the habitat. The Chief Wild Life Warden id the only competent authority under section 33 of the Wild life (protection) Act 1972 and the permission of the central government is not required. In spite of the fact that the Chief Wild life Warden is the competent authority approval for construction of the interpretation centre was also given by the State Government.
30. The learned counsel also contended that there was no necessity to construct the Visitor centre in question, as an interpretation centre at the entry of the park, is already in existence. the question whether the interpretation centre, which was built at the gate of the park was sufficient for promoting and supporting wildlife education and interpretation is not for us to decide.. That question relates to the authorities who are concerned with control management and maintenance of the sanctuary, conservation of forest and wildlife. It however needs to be pointed out that the National Wildlife Action plan emphasizes the necessity of creating first class facilities in order to set up interpretation on a firmer footing in the country. The new interpretation centre has come up to fulfil the objectives of the wildlife action plan”.
59. Therefore, we hold that the proposed establishment and development of tourism activities in question in buffer area of the Periyar Tiger Reserve are as per the approved TCP and in conformity with the strategy of the National Wildlife
Action Plan, in consonance with the guidelines issued by the NTCA and also in harmony with the provisions of the Wildlife (Protection) Act 1972 and also in conformity with the Hon‟ble Apex Court judgment.
60. In fact, at Para XVII of the affidavit the Secretary has stated as follows: “That though the Tiger Conservation Plan (“TCP” for short) was approved by NTCA, one of the conditions stipulated at Para “e” of the approval letter dated 21.3.2013 was that at no stage of implementation of the approved plan, the provisions of the Forest (Conservation) Act, 1980, Wildlife (Protection) Act, 1972 and other Acts will be over-ruled or not followed. Those activities prescribed in the approved TCP which are not ancillary to conservation, development and management of forests and wildlife will require clearance under Forest (Conservation) Act. In the instant case, construction of parking facilities in the Tiger Reserve was considered for a bona fide reason as ancillary to conservation, development and management of forests and wildlife.”
61. This makes it clear that the proposed establishment and development of vehicle parking facility and other amenities for tourists through the statutorily
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constituted Tiger Conservation Foundation having members from the local communities are ancillary to the conservation, development and management of forests and wildlife. Shifting of vehicle parking site and construction of Sewage
Treatment Plant, cafeterias etc. are to be definitely treated as ancillary to the conservation of forest and wildlife. Therefore, once the statutory authority i.e. the
NTCA which examines the proposals and approves the TCP consisting of a component on tourism activities which is prepared as per the guidelines issued by the NTCA and upheld by the Hon‟ble Apex Court, we find no necessity of obtaining a further clearance under the Forest (Conservation) Act, 1980. Though in the last Para of the affidavit i.e., Para XIX the Secretary has stated that the concerned authorities will be directed to seek necessary permission and approval under the Forest (Conservation) Act, 1980 and/or Biological Diversity Act, 2002 and as the activities have not started on the ground approval under Forest
(Conservation) Act, 1980 will be considered whenever such application is forwarded by the concerned authorities responsible for implementation of TCP, we find it contrary to the clear stand taken earlier at Para XVII referred above that once the TCP is approved; there is no necessity to take separate approval under section 2 of the Forest (Conservation) Act, 1980. The Director General of
Forests, who is the Chairman of the Forest Advisory Committee (FAC) which examines the proposals for utilization of forest land and recommends the diversion of forest land for non forest activities, himself/herself is one of the members of NTCA.
62. Section 2 of the Forest (Conservation) Act, 1980 reads as follows:
“2. Restriction on the de-reservation of forests or use of forest land for non forest purpose.-Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing-
(i) that any reserved forest (within the meaning of the expression „reserved forest‟ in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
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(ii) that any forest and or any portion thereof may be used for any non- forest purpose;
(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;
(iv) that any forest and or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reforestation)
(Explanation-For the purpose of this section “non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for-
a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultures crops or medicinal plants;
b) any purpose other than reafforestation. But does not include any work relating or ancillary to conservation, development and management of forest and wild-life namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks pipelines or other like purposes)"
Therefore, taking a holistic approach and looking at the larger objective of conservation of forests and wildlife by involving the local communities, undertaking of the ecotourism activities approved by the NTCA which is a statutory authority, at the fringe of the buffer zone of the Reserve without felling a single tree, establishment and maintenance of minimum amenities for visitors such as vehicle parking facility, ticket counter, cafeteria, wash rooms, interpretation centre etc. should not be considered as diversion of forest land for non forest purpose so as to attract the provisions of Forest (Conservation) Act,
1980. Moreover the proposed facility is located in the town limits, amidst densely populated locality not frequented by wild animals. The activities can be grouped under the works relating or ancillary to conservation, development and management of forests and wildlife. Hence we hold that there is no necessity to obtain a separate approval under Forest (Conservation) Act, 1980. Even when check posts, wireless communication centres, watch towers etc. are established deep inside the forests, even in Core or Critical Tiger Habitat, certain minimum facilities for stay of the forest personnel are required. If so providing such
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facilities including construction of shelters for patrolling staff to protect themselves from the attacks of wild animals, kitchen for cooking food, wash rooms for attending nature‟s call etc. which are not specifically mentioned in section 2 of the Forest (Conservation) Act, 1980, it could be argued that they amount to diversion of forest land and hence attract the Forest (Conservation)
Act, 1980. Such argument is highly inappropriate and cannot be sustained. The overall objectives have to be looked into. Minimum facilities for the visitors in the fringe area of the buffer zone of the Reserve, that too located in the well developed town limits, definitely it cannot be termed as diversion of forest land for non forest purpose. We cannot accept such contentions. It is not that the park authorities are free to do whatever they want. Whatever activities are undertaken, they should be strictly in conformity with the approved TCP, prepared based on the guidelines issued by the NTCA, examined and cleared by the Apex Court of the land. The tourism activities in the fringes of buffer zone are incidental to the management of the Reserve and involve the local communities and such involvement is a part of conservation efforts. Involving the local communities in conservation activities and natural resource management is to strengthen the protection measures and it is a recognised practice particularly in developing countries which are rich in biodiversity.
63. The learned counsel for the respondent M/s. Periyar Tiger
Conservation Foundation represented by its Trustee, O/o Deputy Director,
Periyar Tiger Reserve argued that the Tiger Foundation is established under
Section 38-X of the Wildlife (Protection) Act, 1972 for the purpose of involving the local communities in various activities of conservation and tourism also forms part of such activity. Section 38-X reads as follows:
"38X.(1) The State Government shall establish a Tiger Conservation Foundation for tiger reserves within the State in order to facilitate and support their management for conservation of tiger and biodiversity and, to take initiatives in eco-development by involvement of people in such development process.
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(2) The Tiger Conservation Foundation shall, inter alia have the following objective:-
a) to facilitate ecological, economic, social and cultural development in the tiger reserves;
b) to promote eco-tourism with the involvement of local stakeholder communities and provide support to safeguard the natural environment in the tiger reserves;
c) to facilitate the creation of, and or maintenance of, such assets as may be necessary for fulfilling the above said objectives;
d) to solicit technical, financial, social, legal and other support required for the activities of the Foundation for achieving the above said objectives;
e) to augment and mobilise financial resources including recycling of entry and such other fees received in a tiger reserve, to foster stake-holder development and eco- tourism;
f) to support research, environmental education and training in the above related fields".
The entire Tourism activities including the establishment and development of facilities in the buffer zone of the Tiger Reserve will be implemented only through the statutorily constituted Periyar Tiger Conservation Foundation having local stakeholders. Therefore, there should not be any objection to carry out such tourism activities which form part of the TCP approved by the NTCA. It is argued by the learned counsel appearing for the State of Kerala that the provisions of the FC Act, 1980 are not applicable even for the civil works such as construction of roads, bridges, buildings, fences or barrier gates etc. and carrying out of such works undertaken in the Protected Areas is to strengthen the measures for protection of wildlife and these activities can be permitted by the Chief Wildlife Warden under section 33 of the WL Act, 1972. Section 33 reads as follows:
"33. Control of sanctuaries. - The Chief Wild Life Warden shall be the authority whoshall control, manage and maintain all sanctuaries and for that purpose, within the limits of any sanctuary,
a) may construct such roads, bridges, buildings, fences or barrier gates,
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and carry-out such other works as he may consider necessary for the purposes of such sanctuary;
b) shall take such steps as will ensure the security of wild animals in the sanctuary and the preservation of the sanctuary and wild life, as he may consider necessary for the improvement of any habitat;
c) may take such measures, in the interests of wild life, as he may consider necessary for the improvement of any habitat".
64. Considering the observations of the Hon‟ble Supreme Court quoted earlier, the comprehensive guidelines issued by the NTCA which are scrutinised and approved by the Hon‟ble Supreme Court, and the fact that the tourism activities listed in Chapter 23 of the Tiger Conservation Plan have been approved by the competent authority, we hold that such activities do not amount to diversion of forest land and utilization of forest land for non-forest purpose attracting the provisions of the Forest (Conservation) Act, 1980. The NTCA is a statutory body constituted under Section 38-O (1)(c) of the Wildlife (Protection)
Act, 1972 under the Chairmanship of Minister for Environment and Forest consisting various responsible authorities and experts in the field as members including the Secretary and Director General of Forests, MoEF&CC. When they examined the draft management plan and approved the TCP, including the development of tourism activities, we cannot agree with the argument put forth by the applicants that such activities attract the provisions of the Forest
(Conservation) Act, 1980 and therefore necessary clearance has to be obtained.
If the constitution of NTCA vis-a-vis Forest Advisory Committee (FAC) which recommends Forest Clearance cases for the diversion of the forest lands is examined, it is clear that the constitution and representation of official and non official members is wider than the FAC. When the Chairperson of the FAC who decides the Forest Clearance proposals, himself is a member of the NTCA, which approves the TCP, we find it not necessary to again approach the
MoEF&CC with the proposal to obtain clearance under the Forest (Conservation)
Act, 1980 as the ecotourism activities involving the local communities are
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ancillary to the conservation, development and management of forests and wildlife.
65. With regard to obtaining „consent‟ from the State Pollution Control
Board for the establishment and operation of the facilities, including STP, the
Project authorities have already submitted proposals and given undertaking that such activities will be established and operated only after the Board grants
„consent‟. We hold that such activities shall be undertaken only after obtaining requisite consent.
66. Accordingly we dispose both the applications viz. Application No. 89 of
2014 and Application No. 212 of 2014.
M.A. No. 176 of 2015 in Application No. 212 of 2014 will not survive in view of the judgement. No orders as to costs.
Justice M.S. Nambiar Judicial Member
Shri P.S.Rao Expert Member
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