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Nature Care Trust, Madurai represented by the Founder and Managing Trustee, V. Asokan Vs. The Secretary to Government of India, Ministry of Environment and Forests, New Delhi and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberW.P.(MD) No. 652 of 2015 & M.P.(MD) Nos. 2 & 3 of 2015
Judge
AppellantNature Care Trust, Madurai represented by the Founder and Managing Trustee, V. Asokan
RespondentThe Secretary to Government of India, Ministry of Environment and Forests, New Delhi and Others
Excerpt:
.....that the petitioner sought for the above relief by saying that since the declaration of kodaikanal wild life sanctuary notification by the respondent no.2 is without following the provision of the wild life (protection) act 1972 and against the guidelines hold by the hon ble apex court in w.p.(c) no.460 of 2004 while declaration of eco-sensitive zones in and around wild life sanctuaries at kodaikanal, dindigul district. 3. the writ petitioner has come forward by saying that the petitioner is owning agricultural land in vilpatti village, kodaikanal, dindigul district in survey nos.2060, 2050, etc. to an extent of 25 acres. he has also states that kodaikanal is a city in the hills of the dindigul district in the state of tamil nadu and the gift of the forest, kodaikanal is referred to as a.....
Judgment:

(Prayer: Writ Petition filed under Article 226 of the Constitution of India, for the issuance of Writ of Certiorari, to call for the records pertaining to the Impugned Notification in G.O.(Ms)No.143 (Environment and Forests (FR.5) Department dated 20.09.2013 on the file of the Respondent No.2 and quash the same as illegal.)

1. This writ petition has been filed by the petitioner namely Nature Care Trust, represented by the Founder and Managing Trustee Mr.V.Asokan, Plot No.17/55, K.K.Nagar, Madurai-20 under the Public Interest Litigation, seeking for the issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to the Impugned Notification in G.O.(Ms)No.143 (Environment and Forests (FR.5) Department dated 20.09.2013 on the file of the Respondent No.2 and quash the same as illegal.

2. The case of the petitioner is that the petitioner sought for the above relief by saying that since the declaration of Kodaikanal Wild Life Sanctuary Notification by the respondent No.2 is without following the provision of the Wild Life (Protection) Act 1972 and against the guidelines hold by the Hon ble Apex Court in W.P.(C) No.460 of 2004 while declaration of Eco-Sensitive Zones in and around wild life sanctuaries at Kodaikanal, Dindigul District.

3. The writ petitioner has come forward by saying that the petitioner is owning Agricultural land in Vilpatti Village, Kodaikanal, Dindigul District in Survey Nos.2060, 2050, etc. to an extent of 25 acres. He has also states that Kodaikanal is a city in the hills of the Dindigul District in the State of Tamil Nadu and the gift of the forest, Kodaikanal is referred to as a princess of hill stations and has a long history as a retreat and popular destination kodaikanal was established in 1845 as a refuge from the high temperature. There are 16 villages are in the Kodaikanal and the Number of Revenue Villages as are follows:

Adukkam Pachalur Poombarai VellakariK.C.Patty Pannaikadu Poondi VilpattyKamanur Periyur ThandikudiKodaikanal Poolathur Vadagounchi
4. He has also stated that the vegetables and fruits in Kodaikanal are famous for their freshness and peaches, pears, Grapes, Plum and all the other fruits of temperate hills are grown here and potatoes in huge volumes, cauliflowers and other vegetables are here. Apart the coffee estate in the plantations, cultivating orchards, flowers, blue gum, eucalyptus trees, pines wattles and fruit trees are also available. Among the different kinds of flowers sweet smelling Madonna, lilies, daturas, Dahlias, etc.

5. There are 6 lakhs people living in and around of Kodaikanal Wild Life Sanctuary and most of them only depending upon the above mentioned agriculture cultivation and relating manual works. In the meanwhile, on 20.09.2013 the second respondent has issued Notification in G.O.(Ms)No.143 (Environment and Forest (FR.5) Department for the declaration of Kodaikanal Wild Life Sanctuary under Section 26 A1(b) of Wild Life (Protection) Act 1972, since the Kodaikanal Wild Life Sanctuary comes under the jurisdiction including Theni and Dindigul District, the Kodaikanal Wild Life Sanctuary area to an extent of 60,895.482 Hectares. He has also states that the issuance of impugned notification in G.O.Ms.No.143 by the second respondent is against law and without following the provisions of the Wild Life (Protection) Act, 1972 and the Forest Conservation Act, 1980 as well as the guidelines issued by the Hon ble Apex Court given in W.P.No.460 of 2004.

6. The writ petitioner also states that on 07.11.2014 a meeting was held in the presence of the District Forest Officer, Kodaikanal, Dindigul District/Respondent No.8 to declare the Eco-Sensitive Zone in an around of Kodaikanal Wild Life Sanctuary and the resolution passed which is absolutely violated the guidelines issued by the Hon ble Apex Court order in W.P.No.460 of 2004 and the provisions of the said Act.

7. The petitioner also come forward by saying that the impugned order in G.O.(Ms)No.143, dated 20.09.2013 passed by the second respondent and also resolution dated 07.11.2014 passed by the eighth respondent has failed to consider about the livelihood of the 6 lakhs people and 16 villages in and around Kodaikanal. Agricultural cultivations and more over the rights of the traditional people viz. Paliyar and Pulaiyar Tribal people who are living from time immemorial and the respondents did not analysis properly the livelihood of the villagers while recommendation for declare the Eco-Sensitive Zone in and around Kodaikanal Wild Life Sanctuary.

8. Therefore, on 19.12.2014 and 06.01.2015 one Bharathiya Kisan Sangam made a detailed representation to the respondents and the writ petitioner also sent a representation on 12.01.2015 with a request to take necessary steps, but the respondents have not taken any action till today. Hence, he has filed the writ petition, challenging the said impugned notification dated 20.09.2013.

9. The writ petitioner challenging the said G.O.Ms.No.143 on various grounds that according to Section 19 of the Wild Life (Protection) Act, 1972 when a notification been issued under Section 18, the concerned District Collector shall inquire into and the existence nature and extent of the rights of any person in or over the land comprised within the limit of sanctuary. But the instant impugned G.O. was passed without any inquiry of public and without any study and the existence nature and livelihood of the villagers, who are having cultivating rights in the said area. Hence, the present impugned order has been passed.

10. The writ petitioner also states that as per Section 21 of the Wild Life (Protection) Act, 1972, Proclamation collect when a notification has been issued under Section 18, the Collector shall (within a period of sixty days) publish in the regional language in every town and village in or in the neighbourhood of the area comprised therein a proclamation.

(i) specifying as nearly as possible, the situation and the limit of the sanctuary land;

(ii) requiring any person, claiming any right mentioned in Section 19 prefer before the Collector within two months from the such proclamation a written claim in the prescribed form specifying the nature and the extent of such right with necessary details and the amount and particulars of compensation if any claimed in respect thereof.

But, the respondents did not conduct any Public Hearing or Convene any meeting to discuss about the instant wild life sanctuary and failed to narrate all the facts.

11. The writ petitioner also states that the impugned notification is issued with the violation of Section 21 of the Wild Life (Protection) Act, 1972. Therefore, it is made clear that the public was not aware about the declaration of Kodaikanal wild life sanctuary as well as the Eco-Sensitive Zone. He has also given various provisions of the Act since the present impugned order has been passed by violating the above Act. Therefore, he sought for this Court to quash the said G.O.Ms.No.143 dated 20.09.2013 passed by the second respondent.

12. A counter affidavit has been filed by the District Forest Officer, Kodaikanal Division, Kodaikanal/8th respondent herein. In the counter, the 8th respondent has denied all the averments made in the affidavit.

13. The 8th respondent has stated that as per the present impugned notification in G.O.(Ms)No.143 Environment and Forests, dated 20.09.2013 under Section 26A(1)(b) of Wild Life Protection Act 1972, Section 26A(1)(b) reads as follows:

Any area comprised within any reserved forest or any part of the territorial waters, which is considered by the State Government to be of adequate eco-logical faunal, floral, geomorphological, natural or zoological significance for the purpose of protecting, propagating or developing wild life or its environment, is to be included in a sanctuary, the State Government shall issue a notification specifying the limits of the area which shall be comprised within the sanctuary and declare that the said area shall be a sanctuary on and from such date as may be specified in the notification:

Provided that where any part of the territorial waters is to be so included, prior concurrence of the Central Government shall be obtained by the State Government.

Provided further that the limits of the area of the territorial waters to be included in the sanctuary shall be determined in consultation with the Chief Naval Hydrographer of the Central Government and after taking adequate measures to protect the occupational interests of the local fishermen.

14. The counter also states that the Government have empower to pass or declare sanctuary by either following procedures under Sections 18 to 25 of the Wild Life Protection Act, 1972 or by declaring a Reserved Forest area as sanctuary under Section 26A(1)(b).

15. The 8th respondent also states that the notification under Section 18is only needed to the area other than areas comprised in Reserved Forest. As per Section 18(1) reads as follows:

Declaration of Sanctuary:- The State Government may, by notification, declare its intention to constitute any area other than an area comprised within any reserve forest or the territorial waters as a sanctuary if it considers that such area is of adequate ecological, faunal, floral, geomorphological, natural or zoological significance, for the purpose of protecting, propagating or developing wild life or its environment.

16. The respondent also come forward by saying that the entire sanctuary area of 608.95 kms is comprising only the 26 Reserved Forests as follows:

Sl.No.Name of Reserved ForestsArea of the Reserved Forests
1.Kudhiraiyar4344.53
2.Oliyanuthu1761.25
3.Pombarai Vilpatty7152.45
4.Velancombai67.59
5.Andipatti RF5137.62
6.Gundar Valley1806.78
7.Gundar Valley Extension2133.681
8.Ampth Hill Down12392.163
9.Kookal346.01
10.Poombarai6.83
11.Shengalvarayar1812.62
12.Karungalthonimedu1134.47
13.Amburuvi3538.1
14.Kilanavayal226.37
15.Samikanal654.06
16.Unjalnachi208.46
17.Palani Hills Southern Slope East RF (Kodaikanal Division)4991.48
18.Mulaiyar959.94
19.Pambar1693.373
20.Perumalmalai2581.91
21.Arunkanal490.055
22.Adukkam2269.79
23.Maruthanadiyar1979.79
24.Kaduguthadi148.73
25.Murugamalai RF2793.00
26.Palani Hills Southern Slope East RF (Dindigul Division)264.43
Total Area60895.482

Or

608.95 Sq. Km

Hence, it is made clear that no area other than the area comprised within Reserved Forest has been declared as Kodaikanal Wild Life Sanctuary as per the present impugned notification.

17. The 8th respondent further states in the counter that the writ petitioner filed the writ petition by challenging the G.O. stating that the Wild Life Sanctuary declared without following the guidelines issued by the Hon ble Apex Court issued the order in W.P.No.460 of 2004 is in connection with the declaration of Eco-Sensitive Zone around an existing Wild Life Sanctuary. It is not speaking about the declaration of Wild Life Sanctuary as such, the order issued in the above said writ petition reads as follows:

The Ministry is directed to give a final opportunity to all States / Union territories to respond to its letter dated 27th May 2005. The State of Goa also is permitted to give appropriate proposal in addition to what is said to have already been sent to the Central Government. The communication sent to the States / Union Territories shall make it clear that if the proposals are not sent even now within a period of four weeks of receipts of the communication from the Ministry, this Court may have to consider passing orders for implementation of the decision that was taken on 21st January 2002, namely notification of the areas within 10 Km of the boundaries of the Sanctuaries and National parks as eco-sensitive area with a view to conserve the forest, wild life and environment, and having regard to the precautionary principles. If the States / union territories now fail to respond, they would do so at their own risk and peril.

18. The 8th respondent also states that for the purpose of declaring Eco-Sensitive Zone around the National Park and Sanctuaries is to create some kind of Shock Absorber for the protected areas, they would also Act as a transaction Zone from areas of high protection to areas involving lesser protection has decided by the National Board for Wild Life, the activities in the Eco-Sensitive Zones would be of a regulatory nature rather than prohibitive nature, unless and otherwise so required. The Government also issued the procedures, which is mentioned in the guidelines as follows:

As a first step towards achieving this goal, it is a pre-requisite that an inventory of the different land use patterns and the different types of activities, types and number of industries operating around each of the Protected Area (National Parks, Sanctuaries) as well as important Corridors be made. The inventory could be done by the concerned Range Officers, who can take a stock of activities within 10 Km of his range.

For the above purpose, a small committee comprising the concerned Wild Life Warden, an Ecologist, an official from the Local Self Government and an official of the Revenue Department of the concerned area, could be formed. The said committee could suggest the:

(i) Extent of eco-sensitive zones for the Protected Area being considered.

(ii) The requirement of such a zone to act as a shock absorber

(iii) To suggest the best methods for management of the eco-sensitive zones, so suggested.

(iv) To suggest broad based thematic activities to be included in the Master Plan for the region.

Based on the above, the Chief Wild Life Warden could group the activities under the following categories.

(i) Prohibited

(ii) Restricted with safe guards

(iii) Permissible

Once the proposal for Eco Sensitive Zones has been finalized, the same may be forwarded to the Ministry of Environment and Forests for further processing and notification.

19. The respondent further states that as per the above guidelines a committee was held on 07.11.2014 and Eco-Sensitive Zonation has been discussed in detail and suggestion made it. The committee is comprised with the following officials:

District Forest Officer, Dindigul

District Forest Officer, Theni

District Forest Officer, Kodaikanal

Project Officer, DRDA Dindigul

Project Officer, DRDA Theni

Revenue Divisional Officer, Kodaikanal

Revenue Divisional Officer, Palani

Revenue Divisional Officer, Periyakulam

Representatives from, Palani Hills Conservation Council (PHCC), Kodaikanal.

Therefore, as per the suggestion taken up in the committee meeting, the proposal is proposed and submitted to Chief Wild Life Warden for notification. The entire procedures have been carried out as per the Government of India guidelines.

20. The respondent also come forward by saying that there are hundreds of sanctuaries declared in the past. Few were declared even before independence and there are thousands of villages situated inside these sanctuaries. Lakhs of people are living in these villages, none of the villager had lost his livelihood due to the declaration of these sanctuaries. They are rearing their cattle and they are doing agricultural activities in their lands and constructed their houses, schools, health centres, other community structures. In fact, the said villages, they have infrastructures like road, water supply, sanitation farcicalities etc., and none of these facilities were denied to them because of the declaration of sanctuaries. Similarly in Kodaikanal also care has been taken to declare the Wild Life Sanctuary excluding the areas where habitations are existing. Hence, it is submitted that the contention of the petitioner that the livelihood of the people in and around Kodaikanal Wild Life Sanctuary will be affected, is a wrong conception and baseless. The petitioner had come to this conclusion without going in to the fact that no existing rights inside these Reserved Forests were extinguished or barred during the declaration of Wild Life Sanctuary. All pre existing rights are still in continuation. No one has been denied of his right which was existing already.

21. The further case of the respondents is that the Eco Sensitive Zone has been defined only as per the direction of the Hon ble Apex Court and it is submitted to point out that if the Eco Sensitive Zone was not defined and declared within a stipulated time, the Hon ble Apex Court has stated that an area within 10 Km from the boundaries of the Wild Life Sanctuary will be declared as Eco Sensitive Zone by the Hon ble Apex Court itself. Hence, it is submitted that Eco Sensitive Zone has been defined as per the directions of Hon ble Apex Court only and no Court or individual has locus standi to interfere in the direction of the Hon ble Apex Court. It is also submitted that the pros and cons of declaring Eco Sensitive Zone was analyzed by the Hon ble Apex Court in detail before using such direction. If the rights of any community is affected by the declaration of Eco Sensitive Zone, as alleged by the petitioner, the Hon ble Apex Court would not have given such direction. Hence, the allegations by the petitioner are pre conceived and imaginary and there is no base for the allegations by the petitioner.

22. It is stated that the Kodaikanal is a hill station and attracts lakhs of tourists every year. The tourist spots mentioned in the affidavit are already visited by lakhs of tourists every year. The tourists coming from far of places are pleased to visit these areas and enjoy the natural beauty. Therefore, they cannot close the entire area of tourism and it will affect the livelihood of thousands of families who are depending upon the income from these tourists. Hence, it was decided to exclude these areas from the purview of Wild Life Sanctuary, since these area are more important in tourism point of view than the Wild Life point of view. If these areas are declared as Wild Life Sanctuary, there may be a restriction for the tourists which will deprive the tourists and also affects the livelihood of the families depending upon them.

23. The 8th respondent also states that the Eco Tourism is approved by the Government of India and is practiced without affecting the Eco system of the particular landscape. The principle of Eco tourism is to allow the tourism without causing damage to the ecology and this is what practiced in these areas which will not attract the provision of Section 2 of Forest Conservation Act 1980. Therefore, the contention of the petitioner about the direction given by the Hon ble Supreme Court about the Saw mills in I.A.No.566 of 2000 in W.P.No.202 of 1995 is totally irrelevant to the current case, which is meaningless. The allegations of the writ petitioner is that the declaration of Eco Sensitive Zone will affect the riverbeds, Agricultural and throw every the traditional people is baseless, since the Hon ble Apex Court has already analysed the Pros and Cons of such declaration and gave direction. It is infact the riverbeds and Agriculture will be protected by the declaration of Eco Sensitive Zone as large scale industries and commercial utility of lands will be regulated by Eco Sensitive Zone. Therefore, the 8th respondent filed the counter on behalf of the other respondents also and sought for the dismissal of the writ petition.

24. We have heard Mr.T.Lajapathi Roy, learned counsel appearing for the petitioner, Mr.R.Murugappan, learned Central Government Standing Counsel, appearing for the first respondent and Mr.M.Govindan, learned Special Government Pleader appearing for the respondents 2 to 10 and we have also perused the records.

25. The Hon ble Apex Court considered and given a suitable direction in the writ petition in WP.No.460 of 2004 and also following order of the writ petition, the Government of India is also issued guidelines.

26. The Hon ble Apex Court very clearly held that in the above judgment in W.P.No.460 of 2004 as follows:

The Ministry is directed to give a final opportunity to all States / Union territories to respond to its letter dated 27th May 2005. The State of Goa also is permitted to give appropriate proposal in addition to what is said to have already been sent to the Central Government. The communication sent to the States / Union Territories shall make it clear that if the proposals are not sent even now within a period of four weeks of receipts of the communication from the Ministry, this Court may have to consider passing orders for implementation of the decision that was taken on 21st January 2002, namely notification of the areas within 10 Km of the boundaries of the Sanctuaries and National parks as eco-sensitive area with a view to conserve the forest, wild life and environment, and having regard to the precautionary principles. If the States / union territories now fail to respond, they would do so at their own risk and peril.

27. We have also gone through the report of the committee which was held on 07.11.2014 and committee is comprised more than 10 officials and on their suggestions taken in the committee meeting, the proposal was submitted to Chief Wild Life Warden for notification and the entire procedures have been carried out as per the Government of India guidelines. We have also gone through the guidelines issued by the Government, which is stated in para-9 of the counter affidavit. In fact, the said guidelines were issued, pursuant to the order passed by the Hon ble Apex Court in WP.No.460 of 2004. It is admitted fact that the livelihood of the people in and around Kodaikanal Wild Life Sanctuary will be affected, is totally wrong conception and baseless, since no existing rights inside these Reserved Forests were extinguished or barred during the declaration of Wild Life Sanctuary and all pre-existing rights are still in continuation, no one has been denied of his right which was existing already.

28. We also came to know the facts and gone through the records and the Hon ble Apex Court stating that the pros and cons of declaring Eco Sensitive Zone was analyzed in detail before using such direction and thereafter if the rights of any community is affected by the declaration of Eco Sensitive Zone, as alleged by the petitioner, the Hon ble Apex Court would not have given such direction. In fact, the respondents also come forward by saying that the tourists coming from far of places are pleased to visit these areas and enjoy the natural beauty. They cannot close the entire area of tourism and it will affect the livelihood of thousands of families who are depending upon the income from these tourists. Therefore, it was decided to exclude these areas from the purview of Wild Life Sanctuary, since these area are more important in tourism point of view. It is also made clear that the above Eco Tourism is approved by the Government of India and is practiced without affecting the Eco system of the particular landscape. The principle of Eco tourism is to allow the tourism without causing damage to the ecology and hence the provision of Section 2 of Forest Conservation Act, 1980.

29. During the course of arguments, the writ petitioner has produced a judgment reported in AIR 1995 GUJARAT 133 (Consumer Education and Research Society, Ahamedabad and etc. v. Union of India and others), it is stated that the affected parties should be given a hearing before an area was declared as a Sanctuary and hence in this case, the case of the writ petition is that there was no personal hearing given by the writ petitioner.

30. But, we have gone through the counter affidavit filed by the respondents in para-10, it is clearly stated that as per the guidelines a committee meeting was held on 07.11.2014 and Eco Sensitive Zonation has been discussed in detail and suggestion made it, the committee is comprised with the following officials:

District Forest Officer, Dindigul

District Forest Officer, Theni

District Forest Officer, Kodaikanal

Project Officer, DRDA Dindigul

Project Officer, DRDA Theni

Revenue Divisional Officer, Kodaikanal

Revenue Divisional Officer, Palani

Revenue Divisional Officer, Periyakulam

Representatives from, Palani Hills Conservation Council (PHCC), Kodaikanal.

As per the suggestion taken in the committee meeting, the proposal is proposed and submitted to Chief Wild Life Warden for notification. The entire procedures have been carried out as per the Government of India guidelines. Therefore, that judgment is not applicable in the present case. Hence, the judgment produced by the learned counsel appearing for the petitioner is not applicable in this case since it was already complied by the respondents.

31. The respondent also produced the Guidelines for Declaration of Eco-Sensitive Zones around National Parks and Wild Life Sanctuaries issued by the Government of India, Ministry of Environment and Forests (Wild Life Division), in which the procedure to be adopted was mentioned in the guidelines procedure were given for declaration of Wild Life Sanctuary.

32. Pursuant to the above direction given by the Hon ble Apex Court in W.P.No.460 of 2004 and the guidelines issued by Government of India, the respondents were passed the present impugned order. Therefore, the writ petitioner has not made out any grounds for challenging the impugned order. Hence, the writ petition is liable to be dismissed.

33. In the result, this writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.


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