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2017 DIGILAW 232 (SC)

M. K. Balakrishnan v. Union Of India

2017-02-08

MADAN B.LOKUR, PRAFULLA C.PANT

body2017
ORDER We have, at length, heard learned counsel for the parties including learned counsel for the Union of India. 2. An affidavit dated 7th February, 2017 filed by the Union of India has been shown to us. 3. Annexed to the affidavit is an Office Memorandum issued on 6th January, 2017 with reference to the Draft Wetlands (Conservation and Management) Rules, 2016. The Draft Rules were made available to the public for inviting objections/suggestions some time in March, 2016. As many as 175 comments were received. For the examination of these comments, a Committee has been constituted. The Committee was given 45 days to look into the suggestions and submit its report to the Union of India. 4. We are told orally by learned counsel appearing for the Union of India that perhaps the term of the Committee may need to be extended. This is stated by him on the basis of information received pursuant to a meeting held yesterday, i.e., 7th February, 2017 by the said Committee. 5. Be that as it may, for the reasons given below, we are compelled to direct that the Wetlands (Conservation and Management) Rules, 2016 should be notified on or before 30th June, 2017. We are compelled to issue this direction since the matter has been pending with the Union of India for the last almost a year and there has to be some finality to the publication of the Rules. The comments/suggestions have been given by all stakeholders such as the State Governments including its organisations, individuals and civil society organisations. That being the position, there is obviously a great deal of interest in the Rules being formulated and notified. Under these circumstances, there is no justification why the Union of India should not have taken prompt action and constituted the Committee much earlier for the purposes of finalizing the Rules. Finally, the conservation of wetlands is of immense ecological importance. 6. Learned counsel for the Union of India says that all efforts will be made to ensure compliance with this direction and to ensure that the Rules are notified on or before 30th June, 2017. 7. We are sure that both the Committee as well as the Union of India will take into consideration the comments and suggestions offered by the State Governments and its organisations, individuals and civil society organisations before taking a final decision. 8. 7. We are sure that both the Committee as well as the Union of India will take into consideration the comments and suggestions offered by the State Governments and its organisations, individuals and civil society organisations before taking a final decision. 8. With regard to the Central Wetlands Regulatory Authority, we are told that its term is expiring on 14th February, 2017. We have been informed by learned counsel for the Union of India that the Central Wetlands Regulatory Authority will be notified on 13th February, 2017. The Union of India is bound by the statement made by learned counsel for the Union of India, which statement has been made on instructions received by him from an officer of the Ministry of Environment, Forest and Climate Change. 9. In our order dated 31st January, 2017, we had required the Union of India to tell us the steps taken to preserve the 26 wetlands covered by Ramsar Convention, 1971. The affidavit that has now been filed by the Union of India merely gives the disbursal of amount made by the Union of India from time to time. What specific steps have been taken including how the funds made available have been utilized and what is the impact of those steps have not been adverted to. We must have specific details. We direct the Union of India to file an affidavit within four weeks positively giving required specific details. 10. Learned counsel for the petitioners has drawn our attention to an additional affidavit filed by the Union of India on or about 9th September, 2014. The additional affidavit contains an Information Brochure "National Wetland Inventory & Assessment". This Brochure indicates on page 11 thereof that 2,01,503 wetlands have been mapped at 1:50,000 scale. All these wetlands have an area of more than 2.25 hectares. As a first step, the 'Brief Documents' with regard to these 2,01,503 wetlands should be obtained by the Union of India from the respective State Governments in terms of Rule 6 of the Wetlands (Conservation and Management) Rules, 2010. We are told that obtaining these 'Brief Documents' may take some time. We are inclined to grant adequate time for this purpose. The Union of India should follow this up with the State Governments and inform us of the time frame on the next date of hearing. 11. We are told that obtaining these 'Brief Documents' may take some time. We are inclined to grant adequate time for this purpose. The Union of India should follow this up with the State Governments and inform us of the time frame on the next date of hearing. 11. The apprehension expressed by learned counsel for the petitioners is that with the passage of time there is a possibility that some of the wetlands may disappear. On a reading of the Information Brochure, this apprehension is not unfounded. 12. Accordingly, we direct the application of the principles of Rule 4 of the Wetlands (Conservation and Management) Rules, 2010 to these 2,01,503 wetlands that have been mapped by the Union of India. On a reading of the Information Brochure, this apprehension is not unfounded. 12. Accordingly, we direct the application of the principles of Rule 4 of the Wetlands (Conservation and Management) Rules, 2010 to these 2,01,503 wetlands that have been mapped by the Union of India. The Union of India will identify and inventorize all these 2,01,503 wetlands with the assistance of the State Governments and will also communicate our order to the State Governments which will also bind the State Governments to the effect that these identified 2,01,503 wetlands are subject to the principles of Rule 4 of the Wetlands (Conservation and Management) Rules, 2010, that is to say: "(i) reclamation of wetlands; (ii) setting up of new industries and expansion of existing industries; (iii) manufacture or handling or storage or disposal of hazardous substances covered under the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 notified vide S.O. No. 966(E), dated the 27th November, 1989 or the Rules for Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms/Genetically engineered organisms or cells notified vide GSR No. 1037(E), dated the 5th December, 1989 or the Hazardous Wastes (Management, Handling and Transboundry Movement) Rules, 2008 notified vide S.O. No. 2265(E), dated the 24th September, 2008; (iv) solid waste dumping: provided that the existing practices, if any, existed before the commencement of these rules shall be phased out within a period not exceeding six months from the date of commencement of these rules; (v) discharge of untreated wastes and effluents from industries, cities or towns and other human settlements: provided that the practices, if any, existed before the commencement of these rules shall be phased out within a period not exceeding one year from the date of commencement of these rules; (vi) any construction of a permanent nature except for boat jetties within fifty metres from the mean high flood level observed in the past ten years calculated from the date of commencement of these rules; (vii) any other activity likely to have an adverse impact on the ecosystem of the wetland to be specified in writing by the Authority constituted in accordance with these rules." 13. Learned counsel for the Union of India has shown us a chart of proposals/brief documents that have already been received by the Union of India under Rule 6 of the Wetlands (Conservation and Management) Rules, 2010. Learned counsel for the Union of India has shown us a chart of proposals/brief documents that have already been received by the Union of India under Rule 6 of the Wetlands (Conservation and Management) Rules, 2010. The total number of wetlands covered in this document are 1683. Many of these proposals/brief documents received by the Union of India contain deficiencies which have already been identified in the document handed over to us. 14. The Central Wetland Regulatory Authority will take up the rectification of deficiencies with the State Governments with promptitude and ensure that all these deficiencies are removed and complete proposals/brief documents are furnished within the next about one month so that the Central Wetland Regulatory Authority is in a position to take a final decision with regard to these 1683 wetlands and their notification, if required, on or before 31st March, 2017. 15. List the matter on 3rd April, 2017.