GATEWAY HOTELS AND GATEWAY RESORTS LIMITED BANGALORE Vs. NAGARAHOLE BUDAKATTU HAKKU STHAPANA SAMITHI VIRAJPET COORG DISTRICT AND

JUDGEMENT

(1.) With the proclaimed object of protecting the wildlife and preserving the ecology, the respondents alleged the violation of The Wildlife (Protection) Act, 1972, hereinafter called the "Wildlife Act" and the Forest (Conservation) Act, 1980, hereinafter called as the "Forest Act", and filed the writ petition challenging the validity of various Government Orders culminating in the lease deed at Annexure-F, contending that the same was illegal, void and inoperative. It was prayed that direction be issued to the respondents to forbear from taking up any project for non-forest purpose within the Rajiv Gandhi National Park, Nagarahole, and to direct the respondents to forthwith take all measures to restore the source of livelihood to the displaced tribals of Nagarhole National Park and to involve them in enriching the bio-culture of the National Park. The writ petition was allowed with the direction to the appellants in W.A. No. 1333 of 1997, M/s. Gateway Hotels and Gateway Resorts Limited, to immediately stop all the activities on the forest land in question and hand-over its possession to the State Government, vide the order impugned in these appeals.

(2.) Most of the facts are not in dispute between the parties. The points of law requiring adjudication also revolve around the interpretation of the various provisions of the Acts referred to above. A specified area in Nagarhole forest which was a royal hunting preserve was declared a Sanctuary on 2-7-1955. On 4-2-1975, a declaration of intention to constitute the area into a National Park under the Wildlife Act was issued vide G.O. No. FD 14 FWL. The Government accorded sanction to the transfer of saw mills and workshop in Murukal on 27-3-1975. Final declaration of the area as the Nagarahole National Park in terms of Section 35 of the Wildlife Act was issued on 16-3-1983. It is submitted that the land in question was treated as an equity share of the Karnataka State Forest Industries Corporation Limited (KSFIC) on 14-9- 1984. The Karnataka Forest Development Corporation (KFDC) decided to construct boarding and lodging facilities at Murukal, vide its decision dated 27-11-1985. It is alleged that without any Government Order of transferring the land from KSFIC to KFDC, certain buildings were taken over by the latter on 1-7-1987. Establishment of reception centre in the aforesaid area was approved by the Government on 10-4-1987. The reception centre was to be established at a cost of Rs. 175 lakhs by the Karnataka State Forest Development Corporation. The notified area of the National Park was increased vide revised notification of 8-12- 1988. Tenders were called for running the complex set up by the KFDC on 8-9-1989, presumably in view of the supposed lack of expertise to run hotels. The highest offer was made by M/s. East India Hotels, a subsidi ary of Oberoi Hotels, vide its offer dated 21-7-1990. The KFDC sought the approval of the Government to lease the area to Oberoi on 12-11- 1990. Vide G.O. No. AHFF 220 FPC 87, dated 19-11-1990, ownership of the open space and buildings in relation to the property at Murukal was transferred in favour of KSFIC. On 8-1-1991 the Oberoi Hotels withdrew their offer. At this stage the Forest Minister, at the request of the Taj Hotels, increased the amount and Taj became the highest bidder. On 2-3-1991 the KFDC sought approval to lease out the complex to the appellant-hotels. Upon negotiations it was decided that the lease would be for a period of 18 years. Ultimately, the lease was approved in favour of appellant-hotels on 21-7-1992. On 25-6-1994 lease agreement was registered in favour of the appellant-hotels putting them in possession of super deluxe cottages which were earlier in possession of KFDC. The construction and renovation of the wildlands resort began in February 1996. Thereafter various steps were taken in the form of public protests and dharnas to ensure that the work did not continue in pursuance of the impugned orders and the lease executed in favour of the appellant- hotels.

(3.) In their writ petition the respondents had alleged that the Nagarahole National Park was the home land of elephants, fourhorned antelope and gaurs, sloth bear, leopard, giant squirrel, adjutant stork, Malabar pied hornbill, Shahin falcon, etc. The National Park is stated to be the homeland of several tribals like the Jenukurubas, Bettakurubas, Yeravas and Panivars. All these tribals are stated to have been displaced after the park was declared as National Park and have not yet been provided with any alternative site or means of livelihood. It was contended that as a result of social and cultural uproot the tribals lost their habitats, their source of inspiration, their culture and their very livelihood. It was alleged that like the endangered species of the park, the tribals had also become dwindling human stock and were nearly facing extinction. The project was said to have been conceived and proceeded in a highly secret manner. Pursuant to the impugned project, the appellants are alleged to have started laying new roads to provide access to every nook and corner of the National Park through motor vehicles which was alleged to be a serious source of criminal activity to enable poaching of the wildlife and clandestine removal of forest produce. The impugned project was for a non-forest purpose and had been undertaken despite the total prohibition against such projects under the law applicable in the case. The respondents were alleged to have not taken prior approval of the Central Government before venturing on the project as required under Section 2 of the Forest Act. It was submitted that under Section 35 of the Wildlife Act, a National Park was entitled to all the protections which were available to a Sanctuary under Sections 27, 28, 32, 33, 33-A and 34 of the said Act. A 3-star hotel as the appellant intend to start was stated to be totally prohibited. Commissioning of star hotel or Holiday Resorts was termed to be a non-forest purpose. No forest land in violation of the law could be assigned by way of lease or otherwise to any private person. The appellants are alleged to be not an organisation owned, managed or controlled by the Government. The impugned action was alleged to be ultra vires of Section 2 of the Forest Act. The action of the respondent was also alleged to be in violation of the provisions of Section 3 of the Environment (Protection) Act read with Rule 5 (v and viii) of the Environment Protection Rules. Displacing the tribals from the national Park or providing holiday resort was alleged to be a serious violation of Constitutional guarantee to the tribals as enshrined under Article 21 of the Constitution. The action of the appellants was termed to be posing a threat to the flora and fauna of the National Park. The action of the authorities was alleged to be arbitrary, capricious, and whimsical besides being violative of the fundamental rights as enshrined in Article 14 of the Constitution. It was further contended that there were sufficient number of Government lodges and holiday resorts around the National Park and more resorts were likely to put unnecessary pressure on the resources of the park.