Pradeep
Krishen Vs. Union of India & Ors [1996] INSC 718
(10 May 1996)
B.L.
Hansaria, S.C. Sen Ahmadi, Cji
ACT:
HEAD NOTE:
The
petitioner, an environmentalist actuated by public interest, has filed this
petition under Article 32 of the Constitution of India challenging the legality
and constitutional validity of an order issued by the State of Madhya Pradesh, Department of Forest, No.
F.14/154/91/10/2 dated March
28, 1995, permitting
collection of tendu leaves from Sanctuaries and National Parks by villagers
living around the boundaries thereof with the avowed object of maintenance of
their traditional rights. The petitioner contends that this act of the State
Government is ultra- vires the provisions of the Wild Life (Protection) Act,
1972, as well as the petitioner's fundamental rights guaranteed by Articles 14
and 1 of the Constitution and is even otherwise inconsistent with the Directive
Principle contained in Article 48A and the Fundamental Duty cast on every
citizen under clause (g) of Article 51A of the Constitution of India. The
petitioner further contends that the said order is mala fide and against public
interest. The order complained of reads as under:
"Government
of Madhya Pradesh Department of Forest Mantralaya, Vallabh Bhawan, Bhopal Immediate S.No. F-14/154/91/10/2 Bhopal, Dated 28th
March '95 To The Chief
Conservator of Forests (W.L.), Madhya Pradesh, Bhopal.
Sub:-
Extraction of Forest produce from National Parks and
sanctuaries consequent o the amendment of the Wild-Life (Protection) Act.
Ref:-
This departments notification of even No. dated 13th Dec. 1994 The following
order is being circulated by the State Government partly modifying its earlier
order on the above subject:-
1.
Keeping in view the traditional rights of the villagers living around the
boundaries of those National Parks and sanctuaries in respect of which the
final notification U/s 26-A and 35 have not been issued, the blocks/areas
earmarked for collection of tendu leaves would be reopened as done in the past.
2. In
order to provide sufficient wages to the villagers living in these areas, labour
intensive works should be provided to them to the maximum extent possible.
In the
name of the Governor and in accordance with the order Sd/- (S.K. PANWAR) Deputy
Secretary, Forest Department, Govt. of Madhya Pradesh" According to the
petitioner in the State of Madhya Pradesh, 11 areas have been declared as
National Parks and 33 areas as Sanctuaries covering a total area of nearly
16,790 sq. Mks. i.e. 12.4% of the total forest area of the State admeasuring 1,35,396
sw. Mks. He refers to a news item published in `The Sunday Times' dated April
16, 195, headlines "Forest cover shrinking in MP" and further refers
to the report of the Comptroller and Auditor General of India stating that
excessive grazing, reckless felling of trees and forest fires are responsible
for the depletion of the forest area by 145 sw. Mks. between 1991 and 1993. He
further contends that indiscriminate felling of trees has resulted in a
depletion of the forest area in the entire country including Madhya Pradesh,
causing concern to not only environmentalists, but also to every right thinking
citizen. He has also referred to the criticism appearing in the media in regard
to the issuance of the order dated March 28, 1995. He says that in the year 1498, the
State Government bad taken a decision to ban commercial exploitation of minor
forest produce from the National Parks and Sanctuaries but the said ban was
lifted by the Department in 1992 when it allowed commercial exploitation of
minor forest produce, in particular, tendu leaves from National Parks and
sanctuaries. A copy of the order lifting the ban dated April 16, 1992, has been
produced on record.
He
further points out that thereafter, at a meeting held on August 18, 1994 by the
State Wild Life Advisory Board, a unanimous decision was taken whereby the
State Government was requested to withdraw the order of April 16, 1992, thereby
continuing the ban on commercial exploitation of minor forest produce from
National Parks and Sanctuaries.
Thereafter,
by an order dated December 13, 1994, the earlier order of April 16, 1992 was
cancelled. Yet again, contends the petitioner, the State of Madhya Pradesh
succumbed to pressure from the business lobby and passed the impugned order of
March 28, 1995, permitting collecting of tendu leaves from the National Parks
and Sanctuaries in respect whereof no notification under Sections 26A and 35 of
the Act has been issued.
The
petitioner contends that while the impugned order dated March 28, 1995
permitting collection of tendu leaves has been issued ostensibly with a view to
providing employment and reasonable livelihood to people living in the vicinity
of the National Parks and Sanctuaries, it has ignored the need to protect the
flora and the fauna as well as wild life which are, so to say, nature's
laboratory where evolutionary process of life in all forms takes place and
which ought not to be interfered with. The presence of human beings, albeit in
earmarked Parks, will not only adversely affect the flora and the fauna but
will also scare away wild life. That is because, contends the petitioner, the
collection of tendu leaves is a destructive process and can cause extensive
damage to ecology and regeneration of trees etc. Besides, the destruction of
organic matter is bound to affect the structure of the soil and there is the
real apprehension of forest ires. The petitioner has, therefore, filed this
petition with a view to preserving the ecology, environment and wild life in
the National Parks and Sanctuaries which are likely to be adversely affected by
the implementation of the impugned order. On the above pleadings and
contentions, the petitioner has raised two contentions which have been
formulated as under:-
(i)
Whether an area declared as a Sanctuary and National Park under Section 18 and
Section 35, respectively, of the Wild Life (Protection) Act, 1972 can be
exploited for the collection of minor forest produce in violation of the
restrictions contained in the said Act? And
(ii)
Whether the State Government has the right to exploit minor forest produce from
the sanctuaries and National Parks which have been so declared for the
protection and preservation of ecology, flora, fauna, geomorphologies, natural
or zoological significance?
This court
issued notice on April
20, 1995 to the
respondents. On behalf of the respondents Nos. 2 to 4, one Muhammadan Hashing,
Chief Conservator of Forests (Production), Government of Madhya Pradesh, has
filed a counter affidavit contending that since no fundamental right of the
petitioner has been violated, the petition is not maintainable under Article 32
of the Constitution. So also, the petitioner has no locus standi to challenge
the impugned order on the strength of Articles 14, 21, 48A and/or 51A (g) of the
Constitution of India. The deponent further contends that the traditional
rights of the villagers living in and around the boundaries of the National
Parks and Sanctuaries in respect of which the final notification under Sections
26A and 35 of the Wild Life Protection Act, 1972 has not been issued, cannot be
questioned till the same has been acquired; due compensation has been paid and
the villagers have been rehabilitated. He has further contended that the State
Government has the right to exploit minor forest produce under the Act. While
conceding that the State Government has, by its order dated September 16, 1982,
forbidden collection of minor forest produce from the sanctuaries in the year
19822-83, it did permit collection of certain minor forest produce like Honey,
Tamarind, Mango, Mail leaves, Mail flowers etc., by the tribals for their bona
fide use. By order dated September 1, 1983, and by a subsequent order dated May
7, 1990, it also permitted collection of tendu leaves, etc., from the Sanctuaries.
The collection was then done departmentally. Again, by the order dated April
16, 1992, the State Government permitted collection of forest produce from
Sanctuary areas and proposed National Parks departmentally, or through agents,
and the local people were permitted to collect non- nationalised forest produce
for their bona fide use and for sale in the local market. The above orders were
partly modified by the order of December 13, 1994, whereby the collection of tendu
leaves was permitted for villagers living in and around the areas not notified
as Sanctuaries and National Parks under Section 26 and 35 of the Act.
Dealing
with the petitioner's contention regarding the depletion of the forest area,
figures have been quoted from the Forest Survey cover from 1987 to 1991 with a
marginal decrease between 1991 and 1993. However, the petitioner's broad
contention in regard to the depletion of the forest cover in the State of Madhya Pradesh remains unassailed.
The
deponent further states that there are 11 National Parks and 33 Sanctuaries in
the State of Madhya Pradesh, out of which 3 National Parks are finally notified
under the National Park Act, 1955 and one Sanctuary is notified under the Act
as amended in 1991, but the final notification is yet to be issued. The
remaining 8 National Parks and 32 Sanctuaries were notified from time to time
under the Act prior to its amendment in 1991. In these National Parks and
Sanctuaries, proceedings under Sections 19 to 25 of the Act were not taken to
acquire the rights of the people. That is why they were not finally notified.
The State Government could not have taken away the rights of the tribals and
villagers dependent on minor forest to produce without acquisition of those
rights after payment of compensation.
It is
for this reason that the final notification under Section 26A could not be
issued unless provision for payment of compensation and rehabilitation were
simultaneously made.
So
also, in regard to National Parks, the final declaration could not be issued
under section 35 of the Act for the same reason.
Dealing
with the apprehension of the petitioner that setting fire to tendu bushes may
set the forest on fire, the deponent states that the practice of setting fire
to tendu bushes has been completely stopped and only pruning operations are
permitted under strict supervision and no pruning is done by setting fire to
bushes or trees in the forest. Since pruning operations are expensive, the same
is done by the State Government. Briefly put, the deponent contends that the
State Government is equally concerned about protecting the forest from fire as
well as ensuring that the ecology of the place and its bio-diversity are not
adversely affected. With a view to protecting the wild life and curbing
poaching activities in the forest area, a special cell comprising police and
forest officials under the control of the Inspector General of Police has been
set up to supervise the forest area. There is, therefore, no real danger to the
flora, fauna, trees and wild life in the National Parks and Sanctuaries. It is,
therefore, contended that the entire petition is based on suspicion and
misconceived apprehension.
In his
rejoinder to the said counter affidavit, the petitioner has raised the very
same contentions, though in a somewhat elaborate manner. It is, however,
clarified that the petitioner does not challenge the right of the tribals
living in and around the National Parks and the Sanctuaries to collect minor
produce for their personal bona fide use, but only challenges the commercial
exploitation thereof, in particular, the tendu leaves through contractors. since
it is inconsistent with the object and spirit of the Act. It is said that under
the impugned order, only non-nationalised minor forest produce is covered and
not nationalised produce and since tendu leaves are nationalised products, they
cannot be exploited. It is, therefore contended that the petitioner's grievance
has not been correctly appreciated and the counter-affidavit is wholly
misconceived and has failed to meet the challenge. According to the petitioner,
Sanctuaries which were declared as such under Section 18 of the Act prior to
its amendment would continue as such even after the amendment and their status
does not get affected by the amendment and therefore, in respect thereof, a
second notification under Section 26A is unnecessary and the non- issuance of a
fresh notification cannot take away the protection extended by Sections 27 to
34 of the Act. This, in brief, is the stand taken in the rejoinder.
In the
present proceedings, three persons (i) Bali Ram (ii) Shyam Lal and (iii) Munshi
Lal, have filed I.A.No.3 of 1995 seeking permission to intervene. These three
persons, who claim to be tribals, contend that they are vitally interested in
the present proceedings as they largely depend in minor forest produce for
their survival. They contend that they collect tendu leaves during the
forty-day season on a token payment to the State Government and if the prayer
sought in the writ petition is granted, their interest will be greatly
prejudiced. They deny the allegation that during the process of collection of tendu
leaves, they disturb the flora and fauna or in any manner disturb the
eco-system of the sanctuaries. They also deny that their presence is the prime
cause for fires in the forest area. This, they say, is the handiwork of
racketeers and contractors. According to them, what they earn from the tendu
leaves is barely enough for their sustenance and is not a big commercial
venture as is sought to be made out by the petitioner. They lastly contend that
they have been enjoying this privilege for generations and the denial of this
privilege to the small tribal population located around the sanctuaries would
result in ruination of the entire tribal population since their survival is on
minor forest produce only. Briefly, they contend, that while the petitioner is
projecting himself to be eco-friendly, he has totally overlooked the rights and
privileges of the indigenous tribals living around the sanctuaries and surviving
on minor forest produce like tendu leaves, Mail flowers, tamarind and other
wild berries. etc., which are nature's bounty to human-beings.
They,
therefore, contend that no fundamental right of the petitioner, for that matter
of environmentalists, is violated and the Court should refuse to entertain the
petition.
The
historical background provided by the petitioner, which has not been assailed,
shows that the State Government had, in 1992, prohibited the collection of
minor forest product from National parks and Sanctuaries but, by its subsequent
order dated 1.9.1983, permitted collection of minor forest produce, such as,
tamarind, Mail leaves, and flowers, wild fruits including mangoes, honey, etc.,
to the tribals for their bona fide personal consumption and not for commercial
exploitation. Thereafter, by an order dated 7.5.1990, the collection of tendu
leaves was done departmentally. By the order of 16.4.1992, the State Government
permitted collection of tendu leaves, etc., from National Parks and Sanctuaries
by the local people for selling in local markets and for their bona fide use.
Thereafter,
by a notification dated 13.12.1994, the notification dated 16.4.1992 was
cancelled and the collection of all types of forest produce was totally banned
with immediate effect. Soon thereafter, by the impugned notification dated
28.3.1995, the earlier notification of 13.12.1994 was modified, in that,
keeping in view the traditional rights of the villagers living around the
National Parks and Sanctuaries in respect whereof no final notification was
issued under Section 26A and Section 35 of the Act, the blocks/areas earmarked
for collection of tendu leaves were reopened. This briefly shows the vagaries
of Government orders issued from time to time.
We may
now notice the relevant provisions of the Act.
Enacted
in 1972, it was a major step in the direction of protecting wildlife and birds.
Hunting of various animals specified in the First Schedule to the Act is
totally prohibited while hunting of certain other animals specified in
Schedules II, III and IV is permitted only on licence.
Under
the Act, the Central Government is empowered to declare any area of adequate
ecological, geomorphologies, natural or geological significance, a Sanctuary.
In such Sanctuaries, public entry is barred and hunting without a licence is
prohibited. The Act contemplates that a specified area can be declared a
National Park. National Parks so constituted are meant for protection,
propagating and developing wildlife. Trade and commerce in wild animals,
articles and products of such animals, except in specified conditions, is
forbidden. Any violation of the provisions of the Act may be visited with
penalties of imprisonment and fine. Several authorities have been created under
the Act to give effect to the provisions intended to protect wildlife and
birds. By a subsequent amendment made in 1991, specified plants have also been
brought under the protective umbrella of the Act. This, broadly speaking, is
the purport of the enactment.
We may
now be more specific. The Act was enacted by Parliament in pursuance of the
resolution passed by the requisite number of States under Article 252 (1) of
the Constitution. It was initially brought into force in those States, which
included the State of Madhya
Pradesh.
Provision
was made for extending it to other States. Section 2 contains the dictionary of
the Act. Several expressions used in the Act, to wit, animals, animal article,
big game, captive animal, cattle, etc., have been duly defined. We may,
however, notice the definitions of the terms, National Park and Sanctuary.
"2(21)
"National Park" means an area declared, whether under Section 35 or
Section 38, or deemed, under sub-section (3) of Section 66, to be declared, as
a National Park;
2(26)
"Sanctuary" means an area declared, whether under Section 26A or
Section 38, or deemed, under sub-section (3) of Section 66, to be declared, as
a wildlife sanctuary." Sections 3 and 4 contemplate the appointment of
certain officers for carrying out the purposes of the Act. Section 6 provides
for the Constitution of a Wildlife Advisory Board.
Sections
7 and 8 set out the functions and duties of the Board. By the 1991 Amendment,
Section 8 was amended and clause (cc) was inserted which added to the list of
duties, the duty to advise the State Government in relation to the measures to
be taken for harmonising the needs of tribals and other dwellers of the forest
with the protection and conservation of wildlife. Chapter III deals with
Hunting of Wild Animals. Chapter IV, inter alia, deals with National Parks and
Sanctuaries. Section 18 empowers the State Government to declare by
notification any area to be a sanctuary if the area is considered to be of
adequate ecological, faunal, floral, geomorphologies, natural or zoological
significance. Once a notification is issued under Section 18, Section 20 bars
the accrual of new rights.
Section
24 provides for the acquisition of extant rights. We may now notice the
relevant part of Section 26A introduced by way of an amendment which reads as
under:
"26A.
(1) When-
(a) a
notification has been issued under Section 18 and the period for preferring
claims has elapsed, and all claims, if any, made in relation to any land in an
area intended to be declared as a sanctuary, have been disposed of by the State
Government; or
(b)
any area comprised within any reserve forest or any part of the territorial
waters, which is considered by the State Government to be of adequate
ecological, faunal, floral, geomorphologies, 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:
(3) No
alteration of the boundaries of a sanctuary shall be made except on a
resolution passed by the Legislature of the State." We may next notice the
relevant part of Section 35(1) which reads thus:
"35(1)
Whenever it appears to the State Government that an area, whether within a
sanctuary or not, is by reason of its ecological, faunal, floral,
geomorphologies, or zoological association or importance, needed to be
constituted as a National Park for the purpose of protecting, propagating, or
developing wildlife therein or its environment, it may, by notification,
declare its intention to constitute such area as a National Park.
Two reliefs
are claimed in this writ petition, namely, (i) to quash the notification dated
28.3.1995 issued by the Government of Madhya Pradesh; and (ii) to direct the
State Government to strictly enforce the provisions of Sections 27 to 33 of the
Act in relation to National Parks and Sanctuaries notified under Sections 18
and 35 of the Act. As pointed out earlier, in the rejoinder affidavit filed by
the petitioner, he stated in no uncertain terms that he was not questioning the
right of the villagers (tribals) living in and around the National Parks and
Sanctuaries to collect minor forest produce therefrom for their personal bona
fide use but questions the Government's right to permit commercial exploitation
of such produce. That would mean the petitioner does not object to the entry of
villagers in the National Parks and Sanctuaries for the limited purpose of
collecting the minor forest produce including tendu leaves.
If
that be so, the apprehension that their entry into those areas would be cause
for fire must recede in the background.
Instances
of forest fires in Panna National Park and Udayanti Sanctuary were relied on, but there is no
material on record to show that these fires were caused by the villagers/tribals
who entered the forest to collect minor forest produce. It is further stated
that since 1989, the practice of setting fire to tendu bushes has been
completely and totally stopped. Therefore, in the absence of any reliable
evidence in that behalf, the apprehension must be stated to be rejected. Even
otherwise, in the counter affidavit filed by the State Government, it has been
clarified that every precaution has been taken to ensure that no such tragedy
takes place and proper arrangements have been made so that there is no danger
to the flora and fauna and wildlife in those areas. Therefore, we must allow
the matter to rest at that.
We may
now mention that according to the petitioner, the State of Madhya Pradesh has
the largest forest area, almost 30.5% of its total geographical area, vide
State Forest Report, 1993, out of which eleven areas have been declared
National Parks ad thirty-three areas as Sanctuaries, covering approximately an
area of 16,790 sq. kms. Of these, only Orcha Sanctuary was declared a Sanctuary
after the 1991 Amendment, whereas the rest were declared prior to the amendment
of Section 18 of the Act. According to the State Government, except the Kanha, Bandhavgarh
and Madhav National Parks, all other National Parks and Sanctuaries are outside the
scope of Sections 27 to 33 of the Act. It is the State's contention that tendu
leaves collected by the tribals are sold to a co-operative which in turn sells
them to the `Beedi' manufacturers so that the tribals can survive from the
small income made thereby.
However,
the petitioner laments the gradual erosion or destruction of the forest area
because of the damage caused by tribals. Besides, their presence disturbs
animal life, marine life, birds and reptiles, in addition to the damage caused
to the fauna and flora. These allegations have been specifically denied in the
State's counter affidavit.
Referring
to the Forest Survey of India for 1987 to 1993, it is shown that the actual
forest cover has increased and not decreased; the small reduction from 1991 to
1993 is due to interpretational correction and the actual depletion can be said
to be only 145 sw. kms. According to the State Government, the aforementioned 3
National Parks were notified under the National Park Act, 1955, and therefore
they are finally notified Parks. The remaining 8 National Parks and 32
Sanctuaries out of the existing 33, were notified from time to time under the
Act prior to the 1991 Amendment, while the remaining single Sanctuary was
notified after the 1991 Amendment. However, according to the State Government,
in these 8 Nation Parks and 33 Sanctuaries, proceedings under Sections 19 to 25
of the Act were not conducted to acquire the rights of those living in and
around them and therefore, they are not finally notified. In other words,
unless the traditional rights are acquired, the final declaration cannot be
used under Section 26A of the Act.
It is
evident from the above pleadings that since neither the traditional rights of
those living in the vicinity of these parks and sanctuaries have been acquired,
nor have provisions been made to either compensate or rehabilitate them, the
final declaration under Sections 26A and 35 has not been possible. That is the
reason why the State Government had to permit collection of tendu leaves by the
impugned notification dated 28.3.1995.
Now as
pointed out earlier, since Parliament had no power to make laws for the States
except as provided by Articles 249 and 250 of the Constitution, the States were
required to pas resolutions under Article 252 (1) to enable Parliament to enact
the law. After as many as 11 States passed resolutions to that effect, the Act
came to be enacted to provide for the protection of wild animals and birds and
for matters connected therewith or ancillary or incidental thereto. Even
Articles 48A and 51A(g) inserted in the Constitution by the 42nd Amendment
oblige the State and the citizen, respectively, to protect and improve the
natural environment and to safeguard the forest and wildlife off the country.
The statutory as well as the constitutional message is therefore loud and clear
and it is this message which we must constantly keep in focus while dealing
with issues and matters concerning the environment and the forest area as well
as wildlife within those forests. This objective must guide us in interpreting
the laws dealing with these matters and our interpretation must, unless the
expression or the context conveys otherwise, subserve and advance the
aforementioned constitutional objectives. With this approach in mind we may now
proceed to deal with the contentions urged by parties.
Chapter
IV, inter alia, deals with Sanctuaries and National Parks. Section 18 before
its amendment by Act 44 of 1991 provided that the State Government, may, by
notification, declare any area to be a Sanctuary if it considers that such area
is of adequate ecological, faunal, floral, geomorphologies, natural or
zoological significance for the purpose of protecting, propagating wildlife or
its environment. After its amendment, it provides that the State Government
may, by notification declare its intention to constitute any area other than an
area comprised within any reserved forest or territorial waters as a Sanctuary
if it considers that such area is of adequate ecological, faunal, floral,
geomorphologies, natural or zoological significance for the purpose of
protecting, propagating or developing wildlife or its environment. In
substance, the thrust of the Section is the same except that earlier the State
Government could straightaway declare any area to be a Sanctuary by issuing a
notification but under the amended Section, it has to declare its intention to
constitute any area other than an area comprised within any reserved forest or
territorial waters as a Sanctuary. When a notification is issued under section
18, the Collector is required to entire into and determine the existence,
nature and extent of the rights of any person in or over the land comprised
within the limits of the Sanctuary. After such a notification is issued under
section 18, the Collector is required to enquire into and determine the
existence, nature and extent of the rights of any person in or over the land
comprised within the limits of the Sanctuary. After such a notification is
issued, no rights can be acquired in or over the land comprised within the said
limits except by succession, testamentary or otherwise. Section 21 requires the
Collector to publish the notification in the regional language in every town
and village in or in the neighbourhood of the area comprised therein specifying
the situation and the limits of the Sanctuary and calling upon persons claiming
any right to prefer the claim before the Collector specifying the nature and
extent o such right and the amount and particulars of the compensation, if any,
and the claim in respect thereof.
The
Collector is then expected to inquire into the claim preferred by any person
and pass an order admitting or rejecting the same in whole or in part. If such
a claim is admitted in whole or in part, the Collector may either exclude such
land from the limits of the proposed Sanctuary or proceed to acquire such
rights unless the rightholder agrees to surrender his rights on payment of
agreed compensation, worked out in accordance with the provisions of the Land
Acquisition Act, 1894 or allow the continuance of any right of any person in or
over any lad within the limits of the Sanctuary. If he decides to proceed to
acquire such land or right in or over such land, he shall proceed in accordance
with the provisions of the Land Acquisition Act.
Section
27 bars the entry of any person other than those specified in clauses (a) to
(e) thereof from entering or residing in the area of the Sanctuary except in
accordance with the conditions of permit granted under Section 28, Section 26A,
which was introduced in the Act by the amending Act 44 of 1991, has already
been extracted earlier. Sections 29 and 30 prohibit the destruction and setting
of fire within the Sanctuary with any weapon unless specifically permitted.
Section 32 bans the use of injurious substances;
Section
33 provides for control of Sanctuaries; Section 34 requires registration of
certain persons in possession of arms. These are the provisions which relate to
Sanctuaries.
Section
35, which we have extracted earlier deals with National Parks and sub-section
(3) thereof provides that where any area is intended to be declared as a
National Park, the provisions of Sections 19 to 26A (both inclusive) except
clause (c) of Section 24(2) shall, as far as may be, apply to the investigation
and determination of claims, and extinguishment of right, in relation to any
land in such area as they apply in the said matters in relation to any land in
a Sanctuary. It will be seen from this provision that the provisions which
apply in relation to investigation and determination of claims, and extinguishment
of rights in the case of Sanctuaries also apply, as far as may be, in the case
of National Parks.
On a
plain reading of these provisions, it is, therefore, obvious that the procedure
in regard to acquisition of rights in and over the land to be included in a
Sanctuary or National Park has to be followed before a final notification under
Section 26A or Section 35(1) is issued by the State Government. In the instant
case, it is not the contention of the petitioner that the procedure for the acquisition
of rights in or over the land of those living in the vicinity of the areas
proposed to be declared as Sanctuaries and National Parks under Section 26A and
35 of the Act has been undertaken. It was for this reason that the order of
28.3.1995 in terms stated that since no final notification was issued under the
said provisions, the State Government was not in a position to bar the entry of
villagers living in and around the Sanctuaries and the National Parks so long
as their rights were not acquired and final notifications under the aforesaid
provisions were issued. It is, therefore, not possible to conclude that the
State Government had violated any provision of law in issuing the notification
dated 28.3.1995 in question.
The
matter, however, does not rest there. The petitioner contends that the forest
cover in the State of Madhya
Pradesh is gradually
shrinking. As pointed out earlier, there is a shrinkage to the extent of 145 sw.
kms. between 1991 and 1993. In our country, the total forest cover is far less
than the ideal minimum of one-third of the total land. We cannot, therefore,
afford any further shrinkage in the forest cover in our country. If one of the
reasons for this shrinkage is the entry of villagers and tribals living in and
around the Sanctuaries and the National parks, there can be no doubt that
urgent steps must be taken to prevent any destruction or damage to the
environment, the flora and fauna and wildlife in those areas. If the only
reason which compels the State Government to permit entry and collection of tendu
leaves is it not having acquired the rights of villagers/tribals and having
failed to locate any area for their rehabilitation, we think that inertia in
this behalf cannot be tolerated. We are, therefore, of the opinion that while
we do not quash the order of 28.3.1995, we think that the State Government must
be directed to decide on the question of completing the process for issuing
final notifications and then take urgent steps to complete the procedure for
declaring/notifying the areas as Sanctuaries and National Parks under Sections
26A and 35 of the Act. We, therefore, direct that the State Government shall
take immediate action under Chapter IV of the Act and institute an inquiry,
acquire the rights of those who claim any right in or over any land proposed to
be included in the Sanctuary/National Park and thereafter proceed to issue a
final notification under Section 26A and 35 of the Act declaring such areas as
Sanctuaries/National Parks. We direct the State Government to initiate action
in this behalf within a period of 6 months from today and expeditiously
conclude the same showing that sense of urgency as is expected of a State
Government in such matters as enjoined by Article 48A of the Constitution and
at the same time keeping in view the duty enshrined in Article 51A (g) of the
Constitution. We are sure, and we have no reason to doubt, that the State
Government would show the required zeal to expeditiously declare and notify the
areas as Sanctuaries/National Parks.
We
dispose of the writ petition with these directions.
We
make the rule absolute as per the directions given above with no order as to
costs.
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