AMRUTLAL DEVJIBHAI JOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY filing these three Misc. Civil Applications, the petitioners of Writ Petition PIL. No. 114 of 2012 have prayed for review of the common order dated 24th June 2013 passed by this Bench in Civil Applications No. 6181 of 2013, 6184 of 2013 and 6189 of 2013 thereby interpreting our earlier order dated 25th April 2013 passed in Civil Application No.3858 of 2013 arising out of Writ Petition PIL. No. 114 of 2012 whereby we passed an interim order to this effect that the State -respondent should see that no mining activity was carried on within the safety zone of 1 km. from the boundary of Balaram Ambaji Wildlife Sanctuary until further order.

(2.) IT appears from the records that in view of our above order dated 25th April 2013 passed in Civil Application No.3858 of 2013, the Assistant Geologist, Geology Science and Mineral Department, Palanpur, Banaskantha, passed an order against the applicants of Civil Applications No. 6181 of 2013, 6184 of 2013 and 6189 of 2013 informing them that they should stop their mining activities as their quarry lease of marble mineral falls within 1 km. of the forest/sanctuary area. In view of such order passed by the Assistant Geologist, Geology Science and Mineral Department, Palanpur, they came up with three Civil Applications, being Civil Applications No. 6181 of 2013, 6184 of 2013 and 6189 of 2013 for clarification of our order dated 25th April 2013 passed in C.A. No. 3858 of 2013, and in those applications, Mr. Joshi, the learned Senior Counsel appearing on behalf of those applicants, contented that the quarry lease of his clients do not fall within 1 km. from the boundary of Balaram Ambaji Wildlife Sanctuary, and as such, there was no justification on the part of the State -Respondent of issuing such restraint order on the basis of our order. According to Mr. Joshi, Balaram Ambaji Wildlife Sanctuary is not a sanctuary declared under section 26A of the Wild Life Protection. Act, 1972 the Act, for short, hereafter. nor can it be said to be a "deemed sanctuary" in terms of section 66(4) of the said Act. Mr. Joshi further contended in those three Civil Applications that in respect of the Balaram Ambaji Wildlife Sanctuary, a mere notification under section 18 of the Act was issued, and final notification in terms of section 26A of the Act was yet to be issued. In view of such assertion, we clarified our order only to the extent that unless a notification in terms of either under section 26A of the Act has been passed in respect of the Balaram Ambaji Wildlife Sanctuary or if the said sanctuary comes within the purview of "deemed sanctuary", no restraint order should be passed upon a quarry lease holder unless the activity falls within 1 km. from the sanctuary as indicated in section 26A of the Act or "deemed sanctuary" within the meaning of section 66(4) of the Act. We further observed in the said order dated 24th June 2013 passed in the aforesaid three Civil Applications that we had otherwise not gone into the question whether the mining activities of the applicants fall within the aforesaid area and it was for the State -respondent to satisfy whether the activities of the applicants fall within 1 km. of the sanctuary or "deemed sanctuary" indicated in the said order, and if the mining activities do not fall within 1 km. area, the State Government was directed to modify its order.

(3.) MR . Joshi, the learned Senior Counsel appearing on behalf of some of the respondents and Mr. Raval, the learned advocate appearing on behalf of some others, pointed out that the Balaram Ambaji Wildlife Sanctuary is declared as a sanctuary under old Section 18 of the Act in the year 1988 prior to coming into operation of the new amendment introducing the new section 18 by repealing the earlier one, and at that point of time, there was no question of invoking section 26A. They point out that according to Section 66(4) of the Act, in case of a sanctuary which has been declared as such under the old section 18, if the proceedings mentioned in sections 19 to 25 are pending on the date of coming into operation of the amendment, that is to say in the year 1992, in such a case, only the portion of the land covered by reserved forest or territorial water should be deemed to be sanctuary and other areas than reserved forest and territorial water, should not be deemed to be sanctuary so long the provisions contained in section 19 to 25 of the Act are complied with.