AJIT D PADIWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) . By way of Public Interest Litigation, in these two petitions, the petitioners have challenged the action of the State Government in reducing the limit of Narayan Sarovar Sanctuary in view of the Resolution dated 24th July, 1995 delimiting the area of "Narayan Sarovar Chinkara Sanctuary" on the ground that the said action is unfair, bad in law, illegal and suffering from non-application of mind and would amount to by-passing the judgment and order rendered by this Court in Special Civil Application Nos. 13139 of 1993, 6061 of 1994 and Letters Patent Appeal No. 197 of 1994. The State Government altered the boundary of the sanctuary in accordance with the Resolution dated 24th July, 1995 passed by the Legislative Assembly under Sec. 26-A(3) of the Wild Life (Protection) Act, 1972. The facts giving rise to the present proceedings are briefly narrated hereinbelow :-

(2.) . In exercise of powers conferred by Sec. 18(1) of the Wild Life (Protection) Act, 1972, the State Government vide its Resolution dated 14th April, 1981, declared and defined limits of forest area in Lakhpat Taluka falling in the Kachchh District, as specified in the Schedule annexed thereto, as a "Wild Life Sanctuary". A Notification vide Annexure-III, annexed to Special Civil Application No. 6707 of 1995 was issued as it appeared to the Government at the relevant time that it is necessary for the purpose of protecting, propagating and developing Wild life and enviroment. By the said Notification, 76,579.53 Hectares, i.e., to say 765.79 total sq. kms. of area was declared as the Wild Life Sanctuary by the aforesaid Notification. It appears from the record of the case that there was a proposal to de-notify the sanctuary. Director of Geology and Mining indicated that huge amount of minerals of high value are deposited and the ban on exploitation of these materials on account of the fact that area has been declared as sanctuary has an adverse impact on the economic development of Kachchh District, which is mainly a backward district in the State of Gujarat. From the record, it also appears that on 27th July, 1993, in exercise of powers conferred by Sec. 26-A(1)(b) of the Wild Life Protection Act, a fresh Notification was issued by the Forest and Environment Department declaring an area of 94.87 sq. kms. as the Chinkara Wild Life Sanctuary from the date of that Notification and also cancelled the earlier Notification dated 14th April, 1981. It appears that the petitioners of Special Civil Application No. 6061 of 1994 preferred a petition before this Court challenging the said Notification dated 27th July, 1993. In the Letters Patent Appeal, reference of which is given earlier, the Court has observed - "The only violation of the law in as much as the impugned notification which has been issued by the Government is in conflict with Sec. 26-A(3) of the Wild Life (Protection) Act, 1972 and is, therefore, ultra vires." The Court further held that - "For the aforesaid reasons, we come to the conclusion that the impugned Notifcation No. BVN-16 (93)-WLP /1092/2156/V2, dated 27th of July, 1993, purporting to cancel the earlier Notification dated 14th April, 1981 is illegal and is quashed. As a consequence thereof, the second Notification also dated 27th of July, 1993, whereby a new Sanctuary, of a much smaller area, was sought to be set up in the same Taluka, is also quashed. As a result of the quashing of the Notification dated 27th of July, 1993, the earlier Notification dated 14th April, 1981, establishing Narayan Sarovar Sanctuary is revived. We express no opinion with respect to the desirability or otherwise of the reduction in sanctuary area. This judgment should not be construed as expressing any opinion on this aspect one way or the other." The Court with regard to the applicability of Sec. 26-A, while considering the Apex Court's judgment has observed as :-

(3.) . Minutes of the Meeting held on 7th February, 1995 regarding Narayan Sarovar Sanctuary in G.I.I.C. Committee Room, Ahmedabad is placed on record vide Annexure-I in Spl. Civil Application No. 6707 of 1995. On behalf of the petitioner, Managing Trustee Shri Manubhai Shah was present. In all 12 persons attended the meeting. The Additional Chief Secretary (Industries), Secretary, Forest & Environment, Director Geology and Mining, Deputy Conservator of Forests, President - WWF - Gujarat, Chief Conservator of Forest (WL), President of World Wild Life Foundation, Director, Centre for Environmental Education, Member-Secretary, Gujarat Ecology Commission, Member, Centre for Environmental Education, Member-Secretary, Gujarat Ecology Commission, alongwith two members from Gujarat University were present in the meeting. From the Minutes it transpires that NGO's representatives pointed out that areas reserved for Wild life constitute only 4% of the total geographical area of the country and this should be left untouched as far as possible. It was pointed out that there is no industrial zoning for the whole region at present. The NGO representatives requested the Government of Gujarat to consider adding about 71 sq. kms. to the sanctuary area. This 71 sq. kms. is at present reserve forest and is adjoining the sanctuary area. It was also part of the sanctuary as per 1981 notification. There was discussion about Kachchh Wild Life Foundation. It is also noted that "NGO representatives represented that the requirement of Sanghi Cement is unlikely to be for the entire leased area of 20 sq. kms. The requirement will be in phases, say four phases. Therefore, initially 5 sq. kms. may be released for exploitation but the third phase requirement may be released only after the present, existing flora of the first phase mining site is restored by, for example, ensuring that the topsoil is not buried beneath layers of dead soil and lost forever. There is no objection to reserving 20 sq. kms. for Sanghi Cement at this stage. But as mentioned above, it is released to the party or the actually working of the lease may be phased out. A suitable mechanism to do this may be found."