PRADEEP KRISHEN Vs. UNION OF INDIA

JUDGEMENT

(1.) 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 2S, 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 21 of the Constitution and is even otherwise inconsistent with the Directive Principle contained in Article 4SA and the Fundamental Duty cast on every citizen under clause (g) of Article 51 A 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:

(2.) 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. Kms. i.e. 12.4% of the total forest area of the' State admeasuring 1,35,396 sq. Kms. He refers to a news item published in 'The Sunday times' dated April 16, 1995, headlined' '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 sq. Kms. 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 1982, the State Government had 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 collection 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.

(3.) THIS Court issued notice on April 20, 1995 to the respondents. On behalf of the respondents Nos. 2 to 4, one Muhammad Hashim, 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 had, by its order dated September 16, 1982, forbidden collection of minor forest produce from the Sanctuaries in the year 1982 -83, it did permit collection of certain minor forest produce like Honey, Tamarind, Mango, Mahul leaves, Mahul 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 april16, 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 26A 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 of India showing a gradual improvement in the forest 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.