These two issues are clear violations of the Environment (Protection) Act 1986.
e) Violations of the Wildlife (Protection) Act 1972. Serious violations of the Wildlife (Protection) Act, have come to our notice during our investigations.
i) Kudremukh was declared as a National Park under sub section (1) of section 35 of wildlife (Protection) Act 1972, on 2.9.1987, which included five reserve forests.
Since the KIOCL, was a part of the Kudremukh National Park, vide section 20 of the Act, (bar on acrual of rights) all rights were acquired in, on or over the land comprised within the limits of the area specified in the notification, except by succession, testamentary or instate.
According to a case precedent wherein it has been said that an reserve forest area for which a preliminary notification has been made, will be de jure a National park for all non-forest purposes. [(Tarur Bharat Singh Vs Union of India, 1992 FLT 177 (SC)] i.e. a preliminary notified National park will be considered a deemed National park for all non-forest purposes.
Since the area under mining is a reserve forest, then it is a decided fact that for all pre-1991 notifications, the first notification shall be considered the final notification. (Wildlife Protection Act, 1972) for all non forest purposes.
The notification declaring Kudremukh National Park was issued on 2.9.1987, which included the following five reserve forests :
Name of the Reserve forest Notified as a Reserve forest on
1) Andar Reserve Forest 15.01.1891
2) Naravi Reserve Forest 01.06.1900
3) Narasimha Parvatna Reserve Forest 01.03.1916
4) Tungabhadra Reserve Forest 07.07.1916 & 29.08.1914
5) South Bhadra Reserve Forest 29.08.1914
Since the area under mining is a notified reserve forest, it is a decided fact that for all pre-1991 notifications, the first notification shall be considered the final notification (Wildlife Protection Act) (per correspondence with Ashok Kumar of Wildlife Protection Society of India, New Delhi).
ii) Supreme Court in WP (C) No 337/95, dated 22.8.1997, the Honble judges S.C. Agrawal and G.T. Nanavati, had ordered as follows :
Even though notification in respect of sanctuaries/national parks have been issued under action 18/35 in all States/Union Territories, further proceedings. As required under the Act i.e. issue of proclamation under section 21 and other steps on contemplated by the Act have not been taken. The concerned State Governments/Union territories are directed to issue the proclamation under section 21. In respect of the sanctuaries/national parks within two months and complete the process of determination of rights and stimulation of land or rights as contemplated by the Act within a period of one year.
As regards denotification of any area, which is included in a sanctuary/national park, it is directed that before placing the proposal before the Legislative Assembly the concerned State Governments shall refer the proposal to the Indian Board for Wild Life for its opinion and thereafter proposal shall be placed for consideration before the Legislative Assembly along with the opinion of the Indian Board for Wildlife.
iii) The Supreme Court in WP (C) No. 337/95 had given directions on 20.03.1999 to the State Governments to issue proclamation under section 21 of Wildlife (Protection) Act 1972.
In the order the Honble judges S.C. Agrawal and S. Sagir Ahmed had observed as follows :
As regard the State of Karnataka, an affidavit has been filled which shows that the forest settlement officers have been appointed and 10 weeks time is sought for issuing the proclamation (under section 21, of the Wildlife Protection Act, 1972). The time prayed for is allowed.
iv) From the above facts it is very clear that provisions of Wildlife Protection Act are applicable to Kudremukh National Park. Since the mining lease was to expire on 24, July 1999. The KIOCL had applied for extension of lease on 4.6.1998 to the State Government on 17.3.1999. The Chief Wildlife Warden had recommended to the Government for not extending the lease, beyond 24.7.1999. The CWW had expressed that the extension of lease will be a violation of the Wildlife Protection Act. But the State Government took shelter under the Forest Conservation Act (1980) and made its recommendation for extending the lease temporarily, based on a letter from PCCF, dated 3.7.1999, which ignored CWWs views. WLPA which should have been the act to be considered.
v) Surprisingly the CWW, PCCF (Wildlife) has changed his opinion more than once as is evident from the following correspondence :
in letter dated 03.09.1999 Chief Wildlife Warden, PCCF, has observed as follows :
Section 35 (6) of the Wildlife Protection Act, 1972 relates to actions consequent upon the Final notification of a National Park declared under Section 35 (4) of the said Act for Kudremukh National Park the Government have issued Notification so far only as per provisions contained in Section 35 (1) of the said Act stating its intention to constitute it as a National Park.
The Revenue Authorities have issued the proclamation under Section 35 (1) of the said Act and their report is awaited for the issue of the Final Notification of Kudremukh National Park. Thus action under Section 35 (6) does to arise at this stage. The CWW concluded.
In essence the CWW, PCCF (Wildlife) opined that WPA does not apply to Kudremukh National Park, since the final notification has not been issued. However, he drastically changed his opinion, which was exactly the opposite, as can be made but from his orders dated 6.12.2000 and 7.12.2000 for removal of 781 trees, to facilitate relaying of slurry pipes (272 - trees inside the mine lease area and 509 trees - outside the lease area, but within the Kudremukh National Park).
Order dated 6.12.2000
As authorised by the Government of Karnataka to the under signed and in provision to the section 33 of wildlife (protection) act of 1972, permission is hereby granted to fell the tree growth existing on the slurry pipeline running with in the Kudremukh National Park.
This order is exactly the opposite to his own opinion dated 3.9.1999.
vi) The solicitor General of India, Shri Harish Salve in his letter dated 18th July 2000 given the following direction to the Addl. Inspector General of Forests, (Wildlife) Ministry of Environment and Forests (MoEF) :
This has a reference to your letter 1st July, 2000 relating for the grant of permission to mining activity in National Parks and Sanctuaries.
Section 29 of the Wildlife Protection Act prohibits absolutely, the grant of any permission by the State Government or the Chief Wildlife Warden for any activity which damages the habitat of any wild animal within such sanctuary unless such activity is necessary for the better management of wildlife itself.
A similar prohibition in relation to National Parks is provided for under Section 35(6). Section 38 imposes the same restrictions on the powers of Central Government where it declares areas of the National Parks and Sanctuaries.
The context of granting renewal to lease in National Parks and Sanctuaries has to be viewed in this backdrop. In any event, for the present the Supreme Court has imposed an absolute embargo on the removal of even dead and wind-fallen trees etc. from National Parks & Sanctuaries by its order dated 14.02.2000.
I would suggest that wherever permission is sought, you may ask the applicant to first seek clearance of the Supreme Court. If the Supreme Court directs the grant of any such permission or even clears the grant of any such permission, then the matter can be considered. This may be the course of prudence to be adopted in this matter.
But these directions were completely ignored and over-looked and tree-felling order was given by the CWW, PCCF (Wildlife) on 6.12.2000 and 7.12.2000, without seeking clearance from Supreme Court as directed by the Solicitor General of India, in his letter dated 1.7.2000.
This is an instance of clear violation of Supreme Court order dated 14.02.2000 in WP 202/1995.(Civil)
vii) Interestingly decisions are being taken arbitrarily as can be noted from the observations of P.C.C.F. (Wildlife) in his letter-dated 10.10.2000 to Addl. Inspector General of Forests (Wildlife) MoEF, New Delhi.
The Honble Supreme Court of India in their order in 1A No. 539 in 1A No. 424 in Writ Petition No. 202/95 (Civil) between Sri. T. N. Godvarmman Thirumalpad Vs. Union of India and others has ordered the respondents to restrain from the removal of dead, diseased, dying or wind fallen trees, drift wood and grasses etc., from any National Park, Game Sanctuary or Forest.
I Feel that the Supreme Courts orders restraining removal of Tree growth etc., from the National Parks and Wildlife Sanctuaries are on commercial considerations and not on Environmental grounds. In this case the removal of the tree growth for re-laying the pipeline underground is required on environmental considerations and is not driven by commercial reasons and as such the Ban order is not applicable to the instant case.
In the above circumstances, I request you to kindly accord necessary permission to remove the tree growth existing on the pipeline and for the movement of machinery / equipment to repair the damaged slurry pipeline running within the Kudremukh National Park without insisting on the Supreme Court Order in writ Petition No. 202/95 (civil) as this operation is in the interest of safeguarding the flora and