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2012 DIGILAW 1705 (RAJ)

State of Rajasthan v. Collector, Bundi

2012-08-06

ALOK SHARMA

body2012
Hon'ble SHARMA, J.—By this petition a challenge has been laid to the order dated 21.08.1998, passed by the Collector, Bundi under the provisions of Section 21 of the Wild Life (Protection) Act, 1972 (hereinafter 'the Act of 1972'). 2. The case of the petitioners-State is that the order dated 21.08.1998 passed by the Collector is liable to be quashed and set aside on the ground that the said order flies in the face of Section 26A(3) of the Act of 1972 as it seeks to alter the boundary of a sanctuary notified in 1982 under Section 18 of the Act of 1972 prior to the amendment of the Act of 1972 in 1991. It is submitted that the said declaration had thereupon attend finality and the boundary of the sanctuary could not have been altered without the State Government taking a decision to do so on the recommendation of the National Wild Life Board. The second ground for impugning the order dated 21.08.1998, passed by the Collector is that it seeks to confer rights on the identified right holders in the notified sanctuary beyond the ken of Section 20 of the Act of 1972 which provides that after the issue of a notification qua a sanctuary under Section 18 of the Act of 1972, only limited rights can be acquired in, on or over the land comprised in the sanctuary by way of succession, testamentary or intestate. It has been submitted that under the impugned order, an absolute right to transfer khatedari rights has been conferred. The third and final ground challenging the impugned order is that therein the Collector has sought to expand the spectrum of rights in respect of rights of way granted when part of the sanctuary was earlier declared to be protected forest under the Rajasthan Forest Act, 1953 (hereinafter 'the Act of 1953') vide two notifications dated 24.05.1962 and 16.05.1962. 3. On notice being served of the writ petition, the Collector, Bundi has filed reply to the writ petition. The respondent No.2, Mahavir Meena however has not responded to the notice in spite of service and consequently this Court is proceeding ex-parte against him. 4. The dispute in the present writ petition concerns rights claimed by the residents of the notified Ramgarh Wild Life Sanctuary. The respondent No.2, Mahavir Meena however has not responded to the notice in spite of service and consequently this Court is proceeding ex-parte against him. 4. The dispute in the present writ petition concerns rights claimed by the residents of the notified Ramgarh Wild Life Sanctuary. As background facts, it is necessary to record that block comprising villages Pipliya, Manak Chowk and Folai was declared as protected forest with reference to Section 29 of the Act of 1953 under notifications dated 24.05.1962 and 16.05.1962. While declaring the aforesaid forest blocks as protected forest, the Government recognized for the residents of the two blocks, rights of thoroughfare, grazing rights for animals and using of existing ways– Pagdandis as also paths for running of local transportation such as through bullock cart (gadi gadar). The identified residents of the two blocks were also conferred the right to collect dried wood as fuel for personal use within the confines of the forest blocks but commercial exploitation was completely prohibited. Except for the rights conferred, the forest blocks declared to be protected forest as aforesaid could not be in any event whatsoever exploited and were to be allowed to sustain in their pristine glory. 5. The Act of 1972 was enacted with a view to protecting wild animals, birds and plants. Section 18 thereof conferred the power on the State Government by notification to declare any area to be a sanctuary if it considered such area to be of prescribed importance. Under the said notification the situation and limits of the sanctuary were to be specified as nearly as possible. Resorting to extant Section 18 of the Act of 1972, the State Government being of the view that the forest blocks of villages Pipliya, Manak Chowk and Folai as also adjoining areas being bestowed with the attributes of a sanctuary, issued a notification on 20.05.1982 declaring the Ramgarh Wild Life Sanctuary as per the description of the boundaries detailed therein. With the declaration of the Ramgarh Wild Life Sanctuary as aforesaid, the provisions of the Act of 1972 ipso facto applied to the areas covered by the sanctuary as defined. 6. The Hon'ble Supreme Court came to be engaged in the case of T.N. Gadavarman Thirumulkpad vs. Union of India in the year 1995. With the declaration of the Ramgarh Wild Life Sanctuary as aforesaid, the provisions of the Act of 1972 ipso facto applied to the areas covered by the sanctuary as defined. 6. The Hon'ble Supreme Court came to be engaged in the case of T.N. Gadavarman Thirumulkpad vs. Union of India in the year 1995. Thereafter, the Hon'ble Supreme Court has on various occasions issued myriad interim orders /continuing mandamuses and also constituted a Centrally Empowered Committee (CEC) to visit various forest areas, sanctuaries and national parks throughout the country to ensure strict compliance with the provisions of the Forest (Conservation) Act, 1980 as also the Act of 1972. In an interim application No.2 in writ petition (C) No.337/1995 in the case of Central for Environmental Law WWF-1 vs. Union of India & Ors., it was brought to the notice of the Hon'ble Supreme Court that even though notifications in respect of sanctuaries / national parks had been issued under Section 18/35 by the State Governments, yet proceedings with reference to Section 21 of the Act of 1972 and other related steps as contemplated under the Act had not taken place consequent to which there was no clarity on the rights of the people living in the areas notified as sanctuary and owing to the resultant of State of vacuousness, sanctuaries and national parks were not protected as necessary under the Act of 1972. The Hon'ble Supreme Court thereupon inter alia directed that the concerned State Governments issue proclamation under Section 21 of the Act of 1972 within a period of two months and complete the process of determining the rights of the persons residing within the areas notified as sanctuary and where deemed necessary in accordance with the Act of 1972 acquire their rights and land within a period of one year thereafter. The order of the Hon'ble Supreme Court as aforesaid was passed on 22.08.1997. 7. Seeking to comply with the directions of the Hon'ble Supreme Court as aforesaid, the Collector, Bundi issued a proclamation under Section 21 of the Act of 1972 on or about 20.10.1997 requiring all persons, claiming rights in terms of Section 19 of the Act of 1972, to appear before him and submit their claims. 7. Seeking to comply with the directions of the Hon'ble Supreme Court as aforesaid, the Collector, Bundi issued a proclamation under Section 21 of the Act of 1972 on or about 20.10.1997 requiring all persons, claiming rights in terms of Section 19 of the Act of 1972, to appear before him and submit their claims. Respondent No.2 Mahavir Meena filed a claim before the Collector, Bundi apparently on behalf of the villagers apparently living in various villages included in the notification dated 20.05.1982 declaring the Ramgarh Wild Life Sanctuary as a sanctuary under the Act of 1972 pleading that the villagers had been collecting dried forest wood and grazing their cattle over the land notified as Ramgarh Wild Life Sanctuary for generations and that the said rights be protected. It was also pleaded that the boundary of the Ramgarh Wild Life Sanctuary as notified on 20.05.1982 under the extant Section 18 of the Act of 1972 be limited only to “reserved forest blocks” of villages Pipliya, Manak Chowk and Folai forest blocks as according to him the area outside the “reserved forest blocks” had negligible population of wildlife which needed no protection. The State filed a reply to the aforesaid application praying that the objection be determined meticulously and except for the rights necessary for the sustenance of the villagers as per their customary right but keeping in mind the purpose and object of the Act of 1972, efforts be made to maximize the protection of the sanctuary. 8. The Collector, Bundi however on consideration of the objections filed by the respondent No.2 and reply thereto of the State and after hearing both the parties passed the impugned order dated 21.08.1998 accepting the claim of respondent No.2 whereunder the right to use path ways (pagdandi) within the sanctuary was expanded to allow the widening of path way to an extent of 25 ft. The Collector also allowed collecting of wood for fire and agricultural equipments from dead wood by the residents in the sanctuary and also recognized an absolute right to transfer their khatedari rights over agriculture land. More and most importantly, the Collector proceeded to exclude areas outside the “reserved forest blocks” of village Pipliya, Manak Chowk and Folai forest blocks from the boundary of the sanctuary as notified on 20.05.1982 and thus truncated the area of the existing sanctuary. 9. Mr. More and most importantly, the Collector proceeded to exclude areas outside the “reserved forest blocks” of village Pipliya, Manak Chowk and Folai forest blocks from the boundary of the sanctuary as notified on 20.05.1982 and thus truncated the area of the existing sanctuary. 9. Mr. R.P. Singh, Additional Advocate General appearing for the State has vociferously submitted that the impugned order dated 21.08.1998, passed by the Collector, Bundi be quashed and set aside as it is plainly without jurisdiction in the context of Section 26A(3) of the Act of 1972. He submits that the Collector has proceeded to truncate and alter the boundary of the Ramgarh Wild Life Sanctuary as notified on 20.05.1982. Counsel submits that the order of the Hon'ble Supreme Court passed on 22.08.1997 did not undo the finality of the notification dated 20.05.1982. It is submitted that under Section 66(4) of the Act of 1972 any reserved forest or sanctuary declared as such under Section 18 prior to the date of commencement of the Wild Life (Protection) Amendment Act, 1991 (hereinafter 'the Act of 1991') is to be deemed to be a sanctuary declared under Section 26A of the Act of 1972. He therefore submits that once a notification under Section 18 of the Act of 1972 declaring an area to be a sanctuary under the extant provisions prior to the Act of 1991 had been issued, the said notification partook the character of a notification under Section 26A of the Act of 1972. Mr. Singh submits that in this view of the matter, the Collector could not have overlooked the provisions of Sub-section (3) of Section 26A of the Act of 1972 and directed the exclusion of villages outside the “reserved forest blocks” of villages Pipliya, Manak Chowk and Folai forest blocks from the boundary of the Ramgarh Wild Life Sanctuary. The other submission of the learned AAG is that under the impugned order dated 21.08.1998, the Collector has conferred an absolute right of transfer of khatedari rights by the residents of the sanctuary to third parties. The other submission of the learned AAG is that under the impugned order dated 21.08.1998, the Collector has conferred an absolute right of transfer of khatedari rights by the residents of the sanctuary to third parties. It is submitted that in terms of Section 20 of the Act of 1972 after the issue of a notification under Section 18 thereof, as has been done in the present case on 20.05.1982, no right in a sanctuary can be capable of acquisition in respect of land comprised within the limits of the sanctuary except by way of succession; testamentary or intestate. Counsel submits that if the order of the Collector were allowed to stand, it would entail acquisition of rights in a sanctuary subsequent to the notification also by way of transfer of property either by way of sale, mortgage with possession or gift. The submission therefore is that consequently the order of the Collector is in contravention of the Act of 1972 on this count. It is finally submitted by Mr. R.P. Singh that the right of way within the sanctuary either on foot or by transportation is an extremely limited right confined to the bare necessities warranted for the protection of customary rights of the residents of the villages covered under a Section 18 notification. It is submitted that in this view of the matter, contrary to the restricted rights conferred on the residents of “reserved forest blocks” at the time of notification of villages Pipliya, Manak Chowk and Folai forest blocks whereunder apart from the use of existing pagdandis, the residents were allowed to use of bullock cart (gadi gadar), the Collector in the impugned order dated 21.08.1998 has allowed the broadening of narrow path ways for use of villagers into a regular road of 25 ft. width. Counsel submits that if the pre-existing path ways were broadened to allow for free flow of traffic of all manner of vehicles, the very quitetude of a sanctuary as also the safety of the resident wildlife would be jeopardized. 10. None appeared for the respondent No.1 at time of hearing of the matter by this Court. width. Counsel submits that if the pre-existing path ways were broadened to allow for free flow of traffic of all manner of vehicles, the very quitetude of a sanctuary as also the safety of the resident wildlife would be jeopardized. 10. None appeared for the respondent No.1 at time of hearing of the matter by this Court. However, a perusal of the reply filed by the respondent No.1 indicates that the contention is that rights granted to the villagers in the sanctuary by the Collector, Bundi have been limited to the rights granted to the villagers vide notifications dated 24.05.1962 and 16.05.1962 when the villages Pipliya, Manak Chowk and Folai forest blocks were declared as protected forest areas under the Act of 1953. It has been denied that the rights conferred on the villagers in the notified Ramgarh Wild Life Sanctuary under the impugned order dated 21.08.1998 have been conferred contrary to the judgment of the Hon'ble Supreme Court. It is however thereafter admitted in the first paragraph of the preliminary objections filed by the District Collector, Bundi that in the impugned order aforesaid “it was also directed that the villages which were not reserved earlier and also situated at the boundaries of the project are kept outside the project.” It has then been further asserted in the reply that the villagers have been conferred mere easementary rights and the rights of Seva Pooja at temples within the sanctuary and that the right to collect fire wood from dead trees and figs has been limited to personal use. It was also stated that the right of the villagers to take the leaves of the trees in the sanctuary as fodder has also been protected. 11. I have heard the learned AAG for the State and perused the writ petition as also reply thereto and the impugned order dated 21.08.1998, passed by the Collector, Bundi. 12. The Hon'ble Supreme Court in the case of Pradeep Krishen vs. Union of India & Ors. ( (1996) 8 SCC 599 ) has held that Articles 48-A and 51-A(g) inserted in the Constitution of India by the 42nd amendment oblige the State and the citizen to protect and improve the natural environment, to safeguard the forests and to protect wildlife of the country. ( (1996) 8 SCC 599 ) has held that Articles 48-A and 51-A(g) inserted in the Constitution of India by the 42nd amendment oblige the State and the citizen to protect and improve the natural environment, to safeguard the forests and to protect wildlife of the country. It has been held by the Hon'ble Supreme Court that the constitutional message now therefore is that constant focus must be maintained on Articles 48-A and 51-A(g) of the Constitution of India while dealing with issues and matters concerning the environment and the forest area as also wildlife therein and this objective must guide the court in interpreting the relevant laws, such that the Constitutional objectives are subserved and advanced. In the aforesaid context of the manner of approach to environmental matters under the governing statute as adumbrated by the Hon'ble Apex Court, I find that the order dated 21.08.1998, passed by the Collector, Bundi is liable to be quashed and set aside. It is plain from the impugned order as also reply to the writ petition by the Collector, Bundi that notified areas of the Ramgarh Wild Life Sanctuary in terms of notification dated 20.05.1982 which had attend finality has been truncated and villages excluded from the sanctuary. This was palpably beyond the jurisdiction of the Collector. The Collector in the course of his enquiry commencing with invitation for objections under Section 19 of the Act of 1972 only determine the customary rights of the villagers living within the areas notified as sanctuary. The rights had to be determined in the context of the constitutional objective enacting the Act of 1972. The rights were to be narrowly evaluated and recognized and not in a manner destructive of the purpose of the declaration of the areas in issue as Ramgarh Wild Life Sanctuary. In this, the Collector quite obviously erred. The Collector for one, overlooked Section 26A(3) of the Act of 1972 which provides for alteration of boundaries for sanctuary only by the State Government on the recommendation of the National Wild Life Board. The learned Collector also overlooked Section 20 of the Act of 1972 in not limiting the rights in, on or over land within the notified sanctuary only by way of succession either testamentary or intestate. The order of the Collector allows for a general transfer of rights and does not limit the transfer only by way of succession. The learned Collector also overlooked Section 20 of the Act of 1972 in not limiting the rights in, on or over land within the notified sanctuary only by way of succession either testamentary or intestate. The order of the Collector allows for a general transfer of rights and does not limit the transfer only by way of succession. Further in my considered opinion, the Collector ought to have evaluated evidence of the customary right of way to animal drawn vehicles for transportation within the sanctuary instead of arbitrarily directing that the existing path ways and pagdandi limited to pedestrian use and Gadi Gadar be widened to 25 ft. The Collector appears to have overlooked the fact that the sanctuary area notified as Ramgarh Wild Life Sanctuary are not to be exploited on a commercial basis and that the inevitability of enhanced traffic in the area consequent to widening of the existing path ways and pagdandi would be an invitation to motorized transport with increasing frequency with the potential of disturbing and endangering the resident wildlife in plain contradiction of the protective mechanism, purposes and objects of the Act of 1972. 13. Consequently, in my considered opinion, the order dated 21.08.1998, passed by the Collector, Bundi is liable to be set aside. The matter is remanded to the Collector, Bundi to reconsider the objections filed by the villagers in the context of the provisions of the Act of 1972 and the observations hereinabove. 14. The writ petition stands disposed of.