DSK Legal represented CREDAI-MCHI before the Supreme Court of India with respect to Flamingo Creek Sanctuary
DSK Legal advised and represented CREDAI-MCHI before the Hon’ble Supreme Court in the captioned matter. CREDAI-MCHI is part of the Maharashtra chapter of the Confederation of Real Estate Developers’ Association (“CREDAI“) being the apex body of real estate developers and filed an Interim Application in Re: T. N. Godavarman Thirumulpad v Union of India & Ors (IA NO. 1000 of 2003 in Writ Petition (C) No. 202 of 1995) for clarification of the order dated June 3, 2022 passed by the Hon’ble Supreme Court (“June Order“) with respect to the Eco-Sensitive Zone (“ESZ/s“) around Sanjay Gandhi National Park (“SGNP“) and Thane Flamingo Creek Sanctuary (“Flamingo Creek“).
Brief Background:
On February 9, 2011, the Ministry of Environment, Forest & Climate Change (“MoEF & CC“) framed guidelines to facilitate the States / Union Territories for declaration of ESZs around National Parks and Wildlife Sanctuaries (“Guidelines“). As per the said Guidelines, the purpose behind declaration of ESZs was to regulate rather than prohibit certain activities around National Parks / Sanctuaries so as to minimise the negative impact of such activities on the fragile ecosystem encompassing these protected areas. The MoEF & CC had constituted an Expert Committee for considering the proposals received from the State Governments for ESZs.
In the interregnum, MOEF&CC published a draft notification for SGNP in January, 2016 calling for suggestions/objections and thereafter the final notification was issued on December 5, 2016 (“SGNP Final Notification“). The ESZ in the SGNP Final Notification was set as 100m to 4 km. Subsequently, as no proposals were received for 21 National Parks/Wildlife Sanctuaries, vide an order dated December 11, 2018, the Hon’ble Supreme Court directed, as an interim measure, that an area of 10 kms around these 21 National Parks / Wildlife Sanctuaries (including the Flamingo Creek) be declared as an ESZ by the MoEF & CC and granted liberty to State Governments to move for modification along with the proposals (“2018 December Order“).
Pursuant to the 2018 December Order, draft ESZ notification for Flamingo Creek was published by the MoEF & CC on November 6, 2019. Several Expert Committee meetings were held from 2020-2021 to consider the proposal for Flamingo Creek and a revised draft Notification was once again issued on April 8, 2021. Subsequently, the final notification was published on October 14, 2021 wherein the ESZ extent was set as 0 to 3.89 km. (“Flamingo Creek Final Notification”).
June Order:
The June Order was passed by the Hon’ble Court, inter alia, directing that:
(i) the decision in respect of Flamingo Creek has to be placed before this Court;
(ii) the Guidelines are reasonable in suggesting that a 1 km boundary for Category B forests is reasonable, however subject to changes in special circumstances.
(iii) SGNP has urban activities in its close proximity and is a special case; and
(iv) a direction for a mandatory 1 km boundary to be fixed for each protected national park or wildlife sanctuary.
Interim Application:
In view of the fact that the SGNP Final Notification and Flamingo Creek Final Notification (“Final Notifications“) were already in force, CREDAI-MCHI filed the captioned application seeking clarification on:
(a) final ESZ notification in respect of SGNP and Flamingo Sanctuary were already published by Ministry of Environment and Forest & CC on December 5, 2016 and October 14, 2021, respectively.
(b) Whilst, passing the June order these final notifications were inadvertently not brought to the notice of the Court and thus it remained to be carved out of the June order, and
(c) SGNP has been held as a special case by the Supreme Court itself in its June 2022 order due to urbanisation in close proximity and Flamingo Sanctuary is similarly placed.
The captioned Interim Application was heard by the specially constituted Green bench comprising of Hon’ble Mr. Justice B. R. Gavai, Hon’ble Mr. Justice Surya Kant and Hon’ble Mr. Justice J. B. Pardiwala on September 23, 2022 and the Hon’ble Court was pleased to pass an order clarifying that the ESZ boundaries of 1 km fixed by them vide the June Order will not apply to SGNP and Flamingo Sanctuary.
This order has brought a huge respite and relief to the real estate development sector as several large-scale projects in that area which were ongoing in accordance with the Final Notifications were halted by the Forest Department if they fell within the 1 km ESZ boundary.
Team:
Counsels: Sr. Advocates Mr. Mukul Rohatgi, Mr. Atmaram Nadkani along with Mr. Kunal Vajani (Black Robe Chambers).
DSK Legal: Mr. Mani Bhushan (Court Clerk), Ms. Shivani Khanwilkar (Senior Associate), Ms. Saloni Shah (Senior Associate), and Mr. Samit Shukla (Partner).