Heard Sri Arun Kumar Gupta, learned counsel for the petitioner and Sri Shashi Prakash Singh, learned Additional Solicitor General appearing for the Union of India. The State is represented through its learned Standing ...
No Acts & Articles mentioned in this case
1
AFR
Reserved on 05.12.2018
Delivered on 04.01.2019
Chief Justice's Court
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 4820 of 2018
Petitioner :- Bharat Jhunjhunwala
Respondent :- Union Of India And 4 Others
Counsel for Petitioner :- Arun Kumar Gupta
Counsel for Respondent :- C.S.C.,A.S.G.I.,Avinash Chandra
Srivastava
Hon'ble Govind Mathur,Chief Justice
Hon'ble Dr. Yogendra Kumar Srivastava,J.
(Per Hon'ble Dr. Yogendra Kumar Srivastava,J.)
1.Heard Sri Arun Kumar Gupta, learned counsel for the petitioner
and Sri Shashi Prakash Singh, learned Additional Solicitor General
appearing for the Union of India. The State is represented through its
learned Standing Counsel.
2.The present public interest litigation has been filed under Article
226 of the Constitution of India praying for a direction commanding
the respondents to consider the scientific studies and the reports
submitted by the petitioner to the respondents and also the report of
Wildlife Institution of India (in short 'WII') including its comments and
to protect the Turtle Wildlife Sanctuary (in short 'TWS') at Kashi
(Varanasi), notified as a sanctuary vide notification dated 21.12.1989
issued under Section 18 of the Wild Life (Protection) Act, 1972
1
. A
further prayer has been made for an appropriate direction to the
respondents not to shift the TWS upstream and to protect and stop the
plying of motorboats, inland waterways vessels and ships and also stop
human activities in the protected sanctuary area. The third prayer with
regard to the issue pertaining to navigation of ships/vessels in the river
Ganga, has not been pressed by the petitioner for the present.
1the Act, 1972
Neutralu&itationuNoHuvuYbDV95;&9DgbyvxM
2
3.The records of the case indicate that upon an earlier public
interest litigation in Bharat Jhunjhunwala Vs. Union of India & 3
Ors.
2
filed by the petitioner, raising similar issues with regard to the
Turtle Wildlife Sanctuary, this Court vide order dated 10.01.2018
disposed of the petition in the following terms:-
"….... In regard thereto, the petition is disposed of granting liberty to
the petitioner to supply a copy of the research paper on the protection
of Turtle Wildlife Sanctuary Management within four weeks from
date, in the event of the same being received by the Principal Chief
Conservator of Forest Wildlife, Lucknow, we hope and trust the paper
shall be considered by him or by any other authority/committee who
he deems proper."
4.Pursuant to the aforementioned order, the petitioner is said to
have submitted a representation dated 07.02.2018 to the Principal Chief
Conservator of Forests in Wildlife, Lucknow. Further, it has been
submitted that upon seeking information under the Right to
Information Act, the WII forwarded the required institution.
5.The petitioner has referred to a communication dated 16.03.2018
sent by the Principal Chief Conservator of Forests (Wildlife), UP,
Lucknow to the Director Wildlife Institution, Handia, Dehradun, on the
subject of review of management effectiveness of TWS, Varanasi
wherein it was stated that the location of sanctuary being along the
ghats of Varanasi city, the Ministry of Environment, Forest and Climate
Change (Wildlife) (in short MOEF & CC) had constituted an expert
team in June, 2017 to assess the ground realities in the said sanctuary
and the expert team has submitted its report to the Ministry and in
continuation thereof the MOEF & CC had desired that a review of the
management effectiveness of the turtle sanctuary in terms of its
biological, ecological and ecosystem service value, possible
rationalization of the boundaries in the sanctuary to include mosaic of
riverine habitat matrix may be taken at the earliest, and accordingly, it
was decided to request the WII to carry out the said study.
2 PIL No.34434 of 2017
3
6.A technical report entitled "Assessment of the Wildlife Values of
the Ganga River from Bijnor to Ballia including Turtle Wildlife
Sanctuary, Uttar Pradesh", submitted by the WII, Dehradun, in July,
2018 is on record. In the report, it has been noted that out of 13 species
of turtle reported from the Ganga River, only 5 species were
encountered during the field sampling with the combined efforts of
visual encounter surveys and in-stream sampling within the TWS and
upstream and downstream of the sanctuary limit. The report notes that
very low encounter of turtles in the TWS indicates high human
disturbance leading to habitat alterations within a very small and
protected area, and that sites along the TWS on the left bank were seen
to have the least suitable habitat for turtles with high anthropogenic
disturbances such as cemented ghats, intense ferry boat activity,
pollution and human presence along the river.
7.The report submitted by the Wild Life Institute is based on the
study period from April to May, 2018 wherein sampling was conducted
for 32 days and on the basis of the same it was recorded that the
capture rates for turtle species was very low indicating a low
abundance of turtles in the TWS and the study showed the presence of
only 5 out of 13 species of freshwater turtle and three species
encountered within the TWS. The low encounter rate of turtles was
attributed to poor aquatic habitat quality and high anthropogenic
disturbances within the TWS.
8.The report concludes by stating that very low encounter rate of
turtles in the TWS indicates high human disturbances leading to habitat
alterations within a very small protected area, and sites along the TWS
on the left bank were seen to have the least suitable habitat for the
turtles with anthropogenic disturbances such as cemented ghats, intense
ferry and boat activity, pollution and human presence along the river.
Based on an overview of facts as noticed in the study it was
4
recommended that the stretch from downstream Newada in Allahabad
District to Adalpur in Mirzapur District be considered as a conservation
priority area. The report further suggests that this area may be brought
under the purview of the Act, 1972 by declaring it as a wildlife
sanctuary for conservation of aquatic biodiversity of the Ganga River
in Uttar Pradesh. The report of the aforementioned study “Assessment
of the Wild Life Values of Ganga River from Bijnor to Ballia including
Turtle Wildlife Sanctuary, Uttar Pradesh" conducted by the WII,
Dehradun was submitted to the State Government on 06.07.2018.
9.The proposal for denotification of the TWS from 940 kms to 970
kms which was submitted by the State Government was taken up at the
50
th
Meeting of the Standing Committee of the National Board for
Wildlife held on 07.09.2018 and it highlighted the following findings
of the WII study:-
“50.3.12.2 De-notification of Kachhua Wildlife Sanctuary from 940
km to 970 km.-
x x x x x
“Only five freshwater turtle species were encountered in TWS out of
the 13 species reported from the Ganga river. Capture rates for turtle
species were low in the TWS, indicating low abundance of turtles
during the sampling period and high anthropogenic disturbance
within TWS.”
x x x x x
“3.1.5 very low encounter rate of turtles in TWS indicate high human
disturbance leading to habitat alteration within a very small
Protected Area. Sites along the TWS in left bank are seen to have
least suitable habitat for turtles with high anthropogenic presence
such as cemented ghats, intense ferry and boat activity, pollution and
human presence along the river. The sand bar in the right bank of the
sanctuary though is an excellent habitat for turtles and breeding
birds, is also under severe anthropogenic pressure. Higher diversity
and catch of fish species from the TWS is indicative of restriction on
fishing in the sanctuary”
x x x x x
“it is clear from the above that 7 km stretch was observed to have
high anthropogenic disturbance throughout the day and night due to
motor boat and tourist activities in certain areas of the sanctuary and
is ranked as ‘No habitat-1’. This shows that Kacchua Wildlife
5
Sanctuary has been classified into no habitat class. Hence, due to
high human disturbance leading to habitat alterations within a very
small protected area, Kacchua Wildlife Sanctuary is found to have
least suitable habitat for turtles with high anthropogenic disturbance
and aforesaid area is no longer is of adequate ecological, faunal,
floral, geomorphological, natural or zoological significance, for the
purpose of protecting, propagating or developing wildlife or its
environment”
x x x x x
“10. Based on combined score the stretch from downstream Newada
in Allahabad district to Adalpur in Mirzapur district, a total of 140
km may be considered as conservation priority area and notified as
wildlife sanctuary under provision of Wildlife (Protection) Act, 1972.
Since the ecological characteristics and wildlife values vary along the
140 km stretch on account of anthropogenic pressure, harmonization
for excluding some areas having high anthropogenic pressures on
account of intense cultural religious uses may be required and to be
done by the Uttar Pradesh Forest Department.
For the purpose of identifying suitable stretch for declaring as
Wildlife Sanctuary from the stretch of 140 km suggested by WII study
the state government has analyzed the cumulative score of stretches
and concluded that cumulative score of 3 stretches (940-950, 950-
960, 960-970) comes out to be 10.36, which is highest in all the
stretches. Accordingly state government concludes that;
“considering the high conservation suitability of this particular
stretch of 30 km near Newada near Allahabad ( 940-970 km), it is
considered appropriate to notify it as a Wildlife Sanctuary under the
provision of Wildlife (Protection) Act, 1972 for conservation of turtles
and other aquatic fauna. This would sufficiently compensate/mitigate
the existing Kacchua Wildlife Sanctuary, which is only 7 km stretch
length, while the aforesaid area being proposed as sanctuary would
cover 30 km length in an areas which is more than 4 times and of
much higher conservation value as per WII report.”
10.On the basis of the aforementioned conclusions recorded in the
study, the State Government analyzed the score of the stretches and
concluded that the cumulative score of 3 stretches (940-950, 950-960,
960-970) was the highest and considering the high conservation
suitability of the particular stretch of 30 kms near Newada in Allahabad
(940-970 kms), it was considered appropriate to notify it as a wildlife
sanctuary under the provisions of the Act, 1972 for conservation of
turtles and other aquatic fauna. This, in the opinion of the State
Government would sufficiently compensate/mitigate the existing TWS
6
which was only 7 kms stretch length, while the aforesaid proposed
sanctuary would cover 30 kms length in an area of more than four
times and of much higher conservation value as per WII report.
11.The State Board for Wild Life (in short 'SBWL') recommended
the denotification of the TWS alongwith compensatory/mitigation
measures, in the following terms:-
“(1) Kacchua Wildlife Sanctuary, Varanasi was found to be very low
on the basis of different parameters for suitability. Hence the proposal
for de-notification may be forwarded to MoEF&CC for approval of
the standing committee of the NBWL and as per prevailing legal
provisions the permission be obtained from CEC / Hon’ble Supreme
Court.
(2) Proposal for notification of 30 km (940 km to 970 km) stretch near
Newada (Allahabad) as wild life sanctuary may be forwarded to
MoEF&CC for approval of standing committee of NBWL and
following action may also be taken simultaneously:
(a) The social Impact assessment of proposed Kacchua
Wildlife Sanctuary will be conducted and mitigation measures
would also be adopted.
(b) Opinion of Chief Naval Hydrographer would also be
obtained.
The State Chief Wildlife Warden has recommended the
proposal with following conditions:
(i) Social Impact Assessment of the proposed Kacchua Wildlife
Sanctuary will be conducted and mitigation measures would be
adopted.
(ii) Opinion of Chief Naval Hydrographer would be obtained.”
12.In view of the recommendations made by the SBWL at its
meeting held on 30.08.2018, the State Government recommended the
proposal for denotification of the TWS, and the same was taken up as
an Agenda Item at the 50
th
Meeting of the NBWL held on 07.09.2018,
and after discussions and noticing the recommendations made in the
report based on the study by the WII, the Standing Committee decided
to recommend the proposal of the State Government, and it was
resolved that the State Government may proceed with the process of
notification of the proposed wildlife sanctuary and denotification of
existing TWS as per the prevailing instructions and relevant provisions
7
for the Act, 1972.
13.The petitioner seeks to raise a grievance against the proposed
denotification of the turtle wildlife sanctuary from its present site at
Varanasi which had been declared as a sanctuary vide notification dated
21.12.1989, and it is sought to be contended that though the report
submitted by the WII has made observations with regard to human
activities in the TWS at Varanasi causing adverse effect to the
sanctuary, the respondents instead of protecting the sanctuary are trying
to shift it and the said action is contrary to the provisions of the Act,
1972.
14.It is further sought to be contended that the proposed shifting of
the sanctuary is based on non-application of mind without any adequate
study with regard to the impact of the said shifting, and as such the said
action is in violation of Article 14 of the Constitution of India as well
as it is not in public interest.
15.Sri Shashi Prakash Singh, learned Additional Solicitor General
has submitted that the proposal for shifting of the existing sanctuary is
based on a study conducted by the WII, Dehradun on the request of the
State Government, and it is only on the basis of the findings recorded
in the aforementioned study that the proposal for shifting the sanctuary
had been submitted. It was also pointed out that the State Government
while submitting the proposal had referred to specific findings of the
WII Study and on the basis of the same had proposed to notify the
stretch of 30 kms at Newada near Allahabad (940-970 kms) as wildlife
sanctuary under the provisions of the Act, 1972 for conservation of
turtles and other aquatic fauna. It is submitted that the proposal is based
on a scientific study made by WII, and the same is a well considered
one, and as such the proposed shifting of the sanctuary suffers from no
illegality.
16.Learned Standing Counsel appears for the State has adopted the
8
submissions made by the learned Additional Solicitor General of India.
17.We have heard the learned counsel for the parties and perused
the records.
18.The factual matrix of the case lies in a narrow compass. The Act,
1972 (Act No.53 of 1972) was enacted by the Parliament to provide for
the protection of wild animals, birds, plants and for matters connected
therewith an ancillary or incidental thereto with a view to ensuring the
ecological and environmental security of the country. The Act was
enforced in the State of UP on 01.02.1973 vide Gazette of India, 1973,
Extra, Pt. II.
19.The scope and ambit of the Act, 1972 was considered by the
Supreme Court in Pradeep Krishen Vs. Union of India
3
and it was
observed as follows:-
“10. We may now notice the relevant provisions of the Act. Enacted in
1972, it was a major step in the direction of protecting wildlife and
birds. Hunting of various animals specified in the First Schedule to
the Act is totally prohibited while hunting of certain other animals
specified in Schedules II, III and IV is permitted only on licence.
Under the Act, the Central Government is empowered to declare any
area of adequate ecological, geomorphologies, natural or geological
significance, a Sanctuary. In such Sanctuaries, public entry is barred
and hunting without a licence is prohibited. The Act contemplates that
a specified area can be declared a National Park. National Parks so
constituted are meant for protecting, propagating and developing
wildlife. Trade and commerce in wild animals, articles and products
of such animals, except in specified conditions, is forbidden. Any
violation of the provisions of the Act may be visited with penalties of
imprisonment and fine. Several authorities have been created under
the Act to give effect to the provisions intended to protect wildlife and
birds. By a subsequent amendment made in 1991, specified plants
have also been brought under the protective umbrella of the Act. This,
broadly speaking, is the purport of the enactment.
11.We may now be more specific. The Act was enacted by Parliament
in pursuance of the resolution passed by the requisite number of
States under Article 252 (1) of the Constitution. It was initially
brought into force in those States, which included the State of Madhya
Pradesh. Provision was made for extending it to other States. Section
2 contains the dictionary of the Act. Several expressions used in the
Act, to wit, animals, animal article, big game, captive animal, cattle,
31996 (8) SCC 599
9
etc., have been duly defined. We may, however, notice the definitions
of the terms, National Park and Sanctuary.
"2. (21) 'National Park' means an area declared, whether under
Section 35 or Section 38, or deemed, under sub-section (3) of
Section 66, to be declared, as a National Park;
2. (26) "sanctuary" means an area declared, whether under Section
18 or Section 38, or deemed, under sub-section (3) of Section 66, to
be declared, as a wildlife sanctuary."
Sections 3 and 4 contemplate the appointment of certain officers for
carrying out the purposes of the Act. Section 6 provides for the
Constitution of a Wildlife Advisory Board. Sections 7 and 8 set out the
functions and duties of the Board. By the 1991 Amendment, Section 8
was amended and clause (cc) was inserted which added to the list of
duties, the duty to advise the State Government in relation to the
measures to be taken for harmonising the needs of tribals and other
dwellers of the forest with the protection and conservation of wildlife.
Chapter III deals with Hunting of Wild Animals. Chapter IV, inter
alia, deals with National Parks and Sanctuaries. Section 18
empowers the State Government to declare by notification any area to
be a sanctuary if the area is considered to be of adequate ecological,
faunal, floral, geomorphologies, natural or zoological significance.
Once a notification is issued under Section 18, Section 20 bars the
accrual of new rights. Section 24 provides for the acquisition of
extant rights. We may now notice the relevant part of Section 26A
introduced by way of an amendment which reads as under:
"26A. (1) When—
(a) a notification has been issued under Section 18 and the period
for preferring claims has elapsed, and all claims, if any, made in
relation to any land in an area intended to be declared as a
sanctuary, have been disposed of by the State Government; or
(b) any area comprised within any reserve forest or any part of the
territorial waters, which is considered by the State Government to
be of adequate ecological, faunal, floral, geomorphologies, natural
or zoological significance for the purpose of protecting, propagating
or developing wild life or its environment, is to be included in a
sanctuary,
the State Government shall issue a notification specifying the limits of
the area which shall be comprised within the sanctuary and declare
that the said area shall be a sanctuary on and from such date as may
be specified in the notification:
(3) No alteration of the boundaries of a sanctuary shall be made
except on a resolution passed by the Legislature of the State."
We may next notice the relevant part of Section 35(1) which reads
thus:
"35(1) Whenever it appears to the State Government that an area,
whether within a sanctuary or not, is by reason of its ecological,
10
faunal, floral, geomorphologies, or zoological association or
importance, needed to be constituted as a National Park for the
purpose of protecting, propagating, or developing wildlife therein or
its environment, it may, by notification, declare its intention to
constitute such area as a National Park.
x x x x x
15. Now as pointed out earlier, since Parliament had no power to
make laws for the States except as provided by Articles 249 and 250
of the Constitution, the States were required to pass resolutions under
Article 252(1) to enable Parliament to enact the law. After as many as
11 States passed resolutions to that effect, the Act came to be enacted
to provide for the protection of wild animals and birds and for matters
connected therewith or ancillary or incidental thereto. Even Articles
48-A and 51-A(g) inserted in the Constitution by the 42nd Amendment
oblige the State and the citizen, respectively, to protect and improve
the natural environment and to safeguard the forest and wildlife off
the country. The statutory as well as the constitutional message is
therefore loud and clear and it is this message which we must
constantly keep in focus while dealing with issues and matters
concerning the environment and the forest area as well as wildlife
within those forests. This objective must guide us in interpreting the
laws dealing with these matters and our interpretation must, unless
the expression or the context conveys otherwise, subserve and
advance the aforementioned constitutional objectives. With this
approach in mind we may now proceed to deal with the contentions
urged by parties.
16. Chapter IV, inter alia, deals with Sanctuaries and National Parks.
Section 18 before its amendment by Act 44 of 1991 provided that the
State Government, may, by notification, declare any area to be a
Sanctuary if it considers that such area is of adequate ecological,
faunal, floral, geomorphologies, natural or zoological significance
for the purpose of protecting, propagating wildlife or its environment.
After its amendment, it provides that the State Government may, by
notification declare its intention to constitute any area other than an
area comprised within any reserved forest or territorial waters as a
Sanctuary if it considers that such area is of adequate ecological,
faunal, floral, geomorphologies, natural or zoological significance
for the purpose of protecting, propagating or developing wildlife or
its environment. In substance, the thrust of the Section is the same
except that earlier the State Government could straightaway declare
any area to be a Sanctuary by issuing a notification but under the
amended section, it has to declare its intention to constitute any area
other than an area comprised within any reserved forest or territorial
waters as a Sanctuary. When a notification is issued under section 18,
the Collector is required to entire into and determine the existence,
nature and extent of the rights of any person in or over the land
comprised within the limits of the Sanctuary. After such a notification
is issued, no rights can be acquired in or over the land comprised
within the said limits except by succession, testamentary or otherwise.
11
Section 21 requires the Collector to publish the notification in the
regional language in every town and village in or in the
neighbourhood of the area comprised therein specifying the situation
and the limits of the Sanctuary and calling upon persons claiming any
right to prefer the claim before the Collector specifying the nature
and extent o such right and the amount and particulars of the
compensation, if any, and the claim in respect thereof. The Collector
is then expected to inquire into the claim preferred by any person and
pass an order admitting or rejecting the same in whole or in part. If
such a claim is admitted in whole or in part, the Collector may either
exclude such land from the limits of the proposed Sanctuary or
proceed to acquire such rights unless the right-holder agrees to
surrender his rights on payment of agreed compensation, worked out
in accordance with the provisions of the Land Acquisition Act, 1894
or allow the continuance of any right of any person in or over any lad
within the limits of the Sanctuary. If he decides to proceed to acquire
such land or right in or over such land, he shall proceed in
accordance with the provisions of the Land Acquisition Act. Section
27 bars the entry of any person other than those specified in clauses
(a) to (e) thereof from entering or residing in the area of the
Sanctuary except in accordance with the conditions of permit granted
under Section 28, Section 26-A, which was introduced in the Act by
the amending Act 44 of 1991, has already been extracted earlier.
Sections 29 and 30 prohibit the destruction and setting of fire within
the Sanctuary and Section 31 prohibits entry into the Sanctuary with
any weapon unless specifically permitted. Section 32 bans the use of
injurious substances; Section 33 provides for control of Sanctuaries;
Section 34 requires registration of certain persons in possession of
arms. These are the provisions which relate to Sanctuaries. Section
35, which we have extracted earlier deals with National Parks and
sub-section (3) thereof provides that where any area is intended to be
declared as a National Park, the provisions of Sections 19 to 26-A
(both inclusive) except clause (c) of Section 24(2) shall, as far as may
be, apply to the investigation and determination of claims, and
extinguishment of right, in relation to any land in such area as they
apply in the said matters in relation to any land in a Sanctuary. It will
be seen from this provision that the provisions which apply in relation
to investigation and determination of claims, and extinguishment of
rights in the case of Sanctuaries also apply, as far as may be, in the
case of National Parks.”
20.The State of UP vide notification dated 21.12.1989 exercising
powers granted under sub-section (1) of Section 18 declared the area
spread within 7 kms near the mid-stream of Ganga River at Varanasi as
Tortoise Wildlife Sanctuary, Varanasi.
21.The schedule of the notification gives the area of the proposed
12
wildlife sanctuary, and the same is as follows:-
^^mRrj izns'k ljdkj
ou vuqHkkx&3
la[;k%4170@14&5 62@89
y[kuÅ% fnukad 21 fnlEcj] 1989
vf/klwpuk
pw¡fd jkT; ljdkj dh jk; gS fd og {ks= ftldk C;ksjk uhps nh x;h vuqlwph
esa fn;k x;k gS] oU; tho vkSj muds Ik;kZoj.k dk laj{k.k] lao/kZu vkSj fodkl djus ds
iz;kstu ds fy, Ik;kZIr ikfjfLFkfrd] izkf.ktkr] izkd`frd vkSj izkf.krRoh; egRo dk gS]
vr,o] vc] oU; tho ¼laj{k.k½ vf/kfu;e] 1972 ¼vf/kfu;e la[;k 53 lu~
1972½ dh /kkjk 18 dh mi/kkjk ¼1½ ds v/khu 'kfDr dk iz;ksx djds] jkT;iky] okjk.klh
'kgj ds fudV xaxk unh dh e/; /kkjk ds fdukjs ds yxHkx 7 fdyksehVj ij QSys
mDr {ks= dks dNqvk oU; tho fogkj] okjk.klh ?kksf"kr djrs gSaA
vuqlwph
ftyk unh dk ukeizLrkfor oU; tho fogkj dk {ks=
okjk.klh xaxk vius nksuksa rVksa ls lhekUr xaxk unh
ds e/; /kkjk ds fdukjs dk yxHkx
lkr fdyksehVj dk {ks=
lhek;sa& m/oZ izokg lhek&jkeuxj fdykA
v| izokg lhek&ekyoh; jsy ,oa lM+d iqyA
vkKk ls]
th0 xus'k
lfpoA^^
22.For an appreciation of the rival contentions it may be necessary
to refer to the relevant statutory provisions of the Act, 1972 (Act No.53
of 1972) which was enacted to provide for the protection of wild
animals, birds, plants and for matters connected therewith. Chapter IV
of the said Act deals with protected areas including sanctuaries. The
term “sanctuary”, as defined under Section 2(26), prior to the
amendment of the Act, 1991, was as follows:-
“2. Definitions.-In this Act, unless the context otherwise requires,—
x x x x x
26. “sanctuary” means an area declared, whether under section 18
or section 38, or deemed, under sub-section (3) of section 66, to be
declared, as a wild life sanctuary.”
23.Section 18, as it stood prior to the amendment made in the year
13
1991, was as follows:-
“18. Declaration of sanctuary.— (1) The State Government may, by
notification, declare any area to be a sanctuary if it considers that
such area is of adequate ecological, faunal, floral, geomorphological,
natural or zoological significance, for the purpose of protecting,
propagating or developing wild life or its environment.
(2) The notification referred to in sub-section (1) shall specify, as
nearly as possible, the situation ans limits of such area.”
Explanation.—For the purposes of the this section, it shall be
sufficient to describe the area by roads, rivers, ridges or other well-
known or readily intelligible boundaries.
24.Section 19 requires the Collector to inquire into and determine
the existence, nature and extent of the rights of any person in or over
the land comprised within the limits of the sanctuary. For the said
purpose, claims could be filed within the period specified under
Section 21(b) and after the inquiry was made, the Collector could pass
orders under Section 24 of the Act, 1972. The relevant provisions
contained under Sections 19 and 24, prior to the amendment made in
the year 1991, are as follows:-
“19. Collector to determine rights.— Whenever any area is declared
to be a sanctuary, the Collector shall inquire into, and determine, the
existence, nature and extent of the rights of any person in or over the
land comprised within the limits of the sanctuary.
x x x x x
24. Acquisition of rights.— (1) In the case of a claim to a right in or
over any land referred to in section 19, the Collector shall pass an
order admitting or rejecting the same in whole or in part.
(2) If such claim is admitted in whole or in part, the Collector may
either—
(a) exclude such land from the limits of the proposed sanctuary, or
(b) proceed to acquire such land or rights, except where by an
agreement between the owner of such land or the holder of rights
and the Government, the owner or holder of such rights has agreed
to surrender his rights to the Government, in or over such land, and
payment of such compensation, as is provided in the Land
Acquisition Act, 1894. (1 of 1984)”
25.The effect of a conjoint reading of the aforementioned
provisions, as they stood prior to the amendment of the year 1991, was
that the sanctuary came into existence the moment the notification
14
under Section 18 of the Act was issued, and that the notification
declaring the sanctuary was final unless and until it was altered by the
order of the Collector under Section 24(2) of the Act, 1972.
26.The Wild Life (Protection) Amendment Act, 1991
4
(amending
Act No.44 of 1991) brought about certain important amendments in the
Act, 1972. The amendments which are relevant for the purpose of the
controversy involved in the present case were the substitution of sub-
section (1) of Section 18 of the Act and the enactment of a new Section
26A. The amended Section 18 and the newly inserted Section 26A read
as follows:-
“18. Declaration of Sanctuary.—(1) The State Government may, by
notification, declare its intention to constitute any area other than an
area comprised within any reserve forest or the territorial waters as a
sanctuary if it considers that such area is of adequate ecological,
faunal, floral, geomorphological, natural or zoological significance,
for the purpose of protecting, propagating or developing wildlife or
its environment.
x x x x x
26A. Declaration of area as Sanctuary.— (1) When—
(a) a notification has been issued under section 18 and the period
for preferring claims has elapsed, and all claims, if any, made in
relation to any land in an area intended to be declared as a
sanctuary, have been disposed of by the State Government; or
(b) any area comprised within any reserve forest or any part of the
territorial waters, which is considered by the State Government to
be of adequate ecological, faunal, geomorphological, natural or
zoological significance for the purpose of protecting, propagating or
developing wildlife or its environment, is to be included in a
sanctuary,
the State Government shall issue a notification specifying the limits of
the area which shall be comprised within the sanctuary and declare
that the said area shall be sanctuary on and from such date as may be
specified in the notification.
Provided that where any part of the territorial waters is to be so
included, prior concurrence of the Central Government shall be
obtained by the State Government.
Provided further that the limits of the area of the territorial waters to
be included in the sanctuary shall be determined in consultation with
the Chief Naval Hydrographer of the Central Government and after
taking adequate measures to protect the occupational interests of the
4the Amendment Act, 1991
15
local fishermen.
(2) Notwithstanding anything contained in sub-section (1), the right
of innocent passage of any vessel or boat through the territorial water
shall not be affected by the notification issued under sub-section (1).
(3) No alteration of the boundaries of a sanctuary shall be made
except on a resolution passed by the Legislature of the State.”
27.The amendment made to sub-section (1) of Section 18 of the Act,
1972 and the insertion of the new Section 26A brought about a major
change in the scheme of Chapter IV under the Act, 1972. As against the
unamended Section 18 where the declaration of sanctuary was final,
unless modified by an order under Section 24(2), under the amended
sub-section (1) of Section 18, the notification made by the State
Government is only a declaration of the intention to constitute any area
as a sanctuary. In terms of the amendment the declaration of an area as
a sanctuary is now to be made under Section 26A(1), and accordingly
Section 2(26), which defines the word “sanctuary” was also amended,
and in place of Section 18 in the definition reference was now made to
Section 26A. Section 2(26) as stood after its amendment in the year
1991 was as follows:-
“2. Definitions.—In this Act, unless the context otherwise requires.—
x x x x x
26. “sanctuary” means an area declared, whether under section
26A or section 38, or deemed, under sub-section (3) of section 66, to
be declared, as a wildlife sanctuary.”
28.Sub-section (3) of Section 26A as inserted by the amending Act
No.24 of 1991 provided that no alteration of boundaries of the
sanctuary could be made by the State Government except on a
resolution passed by the Legislature of the State.
29.The provisions contained under sub-section (3) of Section 26A of
the Act, 1972 were amended in terms of the Wild Life (Protection)
Amendment Act, 2002
5
(Act No.16 of 2003) and the amended sub-
section (3), now reads as follows:-
5the Amendment Act, 2002
16
“........ (3) No alteration of the boundaries of a sanctuary shall be
made by the State Government except on a recommendation of the
National Board.”
30.The scope of the powers with regard to alteration of the
boundaries of a sanctuary made under sub-section (3) of Section 26A,
as it stood after the amending Act No.44 of 1991 came to be considered
by the Supreme Court in the case of the Consumer Education and
Research Society Vs. Union of India & Ors.
6
. In the aforementioned
case, the area of the “Narayan Sarovar Chinkara Sanctuary” which
had been declared and denotified under Section 18(1) of the Act, 1972,
was sought to be reduced by exercising powers under sub-section (3) of
Section 26A of the Act, 1972 and a resolution to the said effect was
passed by the State Legislature and thereupon the State Government
had issued a notification. The said notification was put to challenge
before the High Court which dismissed the writ petition, and the matter
was taken to the Supreme Court where it was sought to be contended
that the State Legislature had not considered all the aspects of the
problem. The Supreme Court declined to quash the notification altering
the boundaries of the sanctuary, and it was held as follows:-
“6. What we find from the Debate that took place in the Assembly and
the resolution is that the matter was discussed for two days, a number
of objections that were raised were considered and the decision was
taken in overall public interest. The following paragraph from the
resolution discloses that:
“AND WHEREAS the State Government has considered all
aspects of the problem in arriving at this conclusion. Protecting the
wildlife is an article of faith for the Government and the
Government does not intend to give a go-by to that commitment
merely for the sake of development. At the same time the natural
resources available in the area is a key to sustainable development
and this is all the more so to a more backward region like Kutch
which is ravaged by nature's inhospitality and which is based upon
minerals and enter into an era of development and prevent famine,
unemployment and migration. Kutch and its people have been
neglected in the development process due to several adverse
conditions. The geological explorations have revealed good deposits
of certain minerals which can be the foundation for the development
of Kutch. It has become necessary to make such mineral available
for exploitation and with this intention and without in any way
6(2002) 2 SCC 599
17
diluting the commitment to protect wildlife and to improve the
habitat by positive steps the Government is proposing this resolution
under the provisions of Section 26-A(3) of the Wild Life (Protection)
Act, 1972.”
We agree with Mr. Dhavan that some aspects deserved better
consideration and some other relevant aspects should also have been
taken into account by the State Legislature. But it will not be proper
to invalidate the resolution of the State Legislature on such a ground
when we find that It took the decision after duly deliberating upon the
material which was available with it and did not think it necessary to
call for further information. The power to take a decision for
reduction of the notified area is not given to the State Government but
to the State Legislature. The State Legislature consists of
representatives of the people and it can be presumed that those
representatives know the local areas well and are also well aware of
the requirements of that area. It will not be proper to question the
decision of the State Legislature in a matter of this type unless there
are substantial and compelling reasons to do so. Even when it is
found by the Court that the decision was taken by the State
Legislature hastily and without considering all the relevant aspects it
will not be prudent to invalidate its decision unless there is material
to show that it will have irreversible adverse effect on the wild life
and the environment.”
31.In the facts of the present case, the State Government exercising
powers under sub-section (1) of Section 18 of the Act, 1972 had
declared and notified the area spread within 7 kms near the mid-stream
of the Ganga River at Varanasi as a Tortoise Wildlife Sanctuary.
Subsequently upon a communication dated 16.03.2018 sent by the
Principal Chief Conservator of Forests (Wildlife), UP, Lucknow to the
Director Wildlife Institute, Dehradun, a review of the management
effectiveness of the TWS at Varanasi, was sought and it was stated that
the location of the sanctuary being along the ghats in Varanasi City, the
MOEF & CC (Wildlife Division) had constituted an expert team in
June, 2017 to assess the ground realities in the said sanctuary and the
expert team had submitted its report to the Ministry and in continuation
thereof the MOEF & CC had desired that a review of the management
effectiveness of the turtle sanctuary in terms of its biological,
ecological and ecosystem service value and also a possible
rationalization of boundaries of the sanctuary to include the mosaic of
18
riverine habitat matrix may be taken at the earliest; accordingly, it had
been decided to request the WII to carry out the said study.
32.The terms of reference of the proposed study as communicated
to the WII vide letter dated 16.03.2018 of the Principal Chief
Conservator of Forests (Wildlife Division), UP, Lucknow were as
follows:-
“1. To analyze the current management practices of Kachhua Turtle
Sanctuary and its effectiveness in achieving the objectives laid down
in the Management Plan.
2. To comprehensively study the ecological status of riverine habitat
within existing Kachhua Turtle Sanctuary in terms of its biological,
ecological and ecosystem service value and to suggest measures to
augment the same.
3. To analyze and assess the impact of expansion/rationalization of
existing boundaries of the sanctuary to include mosaic of riverine
habitat matrix preferably on downstream side in the interest of long
terms turtle conservation and maintenance of riverine ecosystem.
4. To suggest a better protection and management regime for the
sanctuary to augment its effectiveness in meeting the objectives of its
creation.”
33.The WII submitted a technical report entitled "Assessment of the
Wildlife Values of the Ganga River from Bijnor to Ballia including
Turtle Wildlife Sanctuary, Uttar Pradesh", in July, 2018. The report
specifically pointed out that out of 13 species of turtle reported from
Ganga River, only 5 species were encountered during the field
sampling with the combined efforts of the visual encounter surveys and
in-stream sampling within the TWS and upstream and downstream of
the sanctuary limit. It is also noted in the report that the sites along the
TWS on the left bank were seen to have the least suitable habitat for
turtles with high anthropogenic disturbances such as cemented ghats,
intense ferry boat activity, pollution and human presence along the
river. The report indicates that an assessment of wildlife values was
conducted in the entire stretch of the River Gage falling within Uttar
Pradesh and priority areas were identified through a scoring matrix
based on scientific parameters. The anthropogenic influence scores
19
were also considered, and on the basis of the same it was recorded that
in spite of the protected status the TWS scored low due to its small size
and high human disturbances and based on the technical analysis it was
noted that the 140 kms stretch downstream Newada and Allahabad
District to Adalpur and Mirzapur District be considered as a priority
stretch for conservation and it was suggested that this area may be
brought under the purview of the Act, 1972.
34.Referring to the TWS which is a 7 kms section of the middle
stretch of the Ganga River near Varanasi, UP between Ramnagar Fort
to Malviya Bridge, the report takes note of the fact that the middle
Ganga stretch is characterized by large fertile flood planes that were
extensively used for agriculture, and the alteration due to agriculture,
construction and sand mining had disrupted the lateral connectivity of
the river. Further, it was noted that the aquatic and riverine habitat of
TWS had also been disrupted by similar threats. The report also takes
note of the fact that being a place of the considerable religious and
cultural importance, the region was experiencing tremendous tourist
pressure and also although declared a protected area, the increase in
river bank and river-bed agriculture, increase in river traffic and water
pollution and sewage were posing threats to the biodiversity of this
section to the river. Upon a special assessment of the habitat dynamics
in TWS the report takes note of the fact that the bank of the river
Ganga in Varanasi is almost concretized with more than 80 ghats
witnessing thousands of pilgrims everyday.
35.Based on the study period from April to May, 2018 wherein
extensive sampling was conducted for 32 days, the report states that the
capture rates for turtle species were very low indicating a low
abundance of turtles in the TWS and the study showed the presence of
only 5 out of 13 species of fresh water turtles and 3 species
encountered within the TWS. Based on the aforementioned study, the
20
report concludes by stating that very low encounter rates for turtles in
the TWS indicate high human disturbances leading to habitat
alterations within a very small protected area and sites along the TWS
on the left bank were seen to have the least suitable habitat for the
turtles with anthropogenic disturbances such as cemented ghats, intense
ferry and boat activity, pollution and human presence along the river.
Upon an overview of the facts as noticed in the study, it was
recommended that the stretch from downstream Newada in the
Allahabad District to Adalpur at Mirzapur District be considered as a
conservation priority area and may be brought under the purview of the
Act, 1972 by declaring it as a wildlife sanctuary for the conservation of
aquatic biodiversity of the Ganga River in Uttar Pradesh.
36.The report of the study "Assessment of the Wildlife Values of the
Ganga River from Bijnor to Ballia including Turtle Wilelife Sanctuary,
Uttar Pradesh" conducted by the WII was submitted to the State
Government on 06.07.2018, and the proposal submitted on the basis
thereof for denotification of the TWS from 940 kms to 970 kms was
taken up at the 50
th
Meeting of the Standing Committee of the National
Board for Wildlife held on 07.09.2018. The State Government on the
basis of the conclusions recorded in the study analyzed the cumulative
score of the stretches and concluded that considering the high
conservation suitability of particular stretch of 30 kms at Newada near
Allahabad (940-970 kms) it was proposed to notify it as a wildlife
sanctuary under the provisions of the Act, 1972 for conservation of
turtles and other aquatic fauna. In the opinion of the State Government,
this would sufficiently compensate/mitigate the existing TWS, which
was of only 7 kms stretch length, while the area being proposed would
cover 30 kms length which would be more than 4 times and of much
higher conservation value as per the WII Report.
37.The proposal submitted by the State Government was discussed
21
in the meeting of the SBWL on 30.08.2018, and recommendation was
made for denotification of the TWS alongwith detailed
compensatory/mitigation measures. In view of the recommendations
made by SBWL the State Government recommended the proposal for
denotification of the TWS and notification of the 30 kms (940-970
kms) stretch near Newada (Allahabad) as Wildlife Sanctuary. The
aforementioned proposal was taken up as an Agenda Item at the 50
th
Meeting of the Standing Committee of the National Board for Wildlife
held on 07.09.2018 and after discussions noticing the recommendations
made in the report based on the study of WII the Standing Committee
has resolved that the State Government may proceed with the process
of notification of the proposed wildlife sanctuary and denotification of
the existing TWS as per the prevailing instructions and relevant
provisions of the Act, 1972.
38.The aforementioned facts clearly demonstrate that the proposed
notification of the wildlife sanctuary and denotification of the existing
sanctuary has been made on the basis of the report submitted by an
expert team constituted by the MOEF & CC (Wildlife Division),
Government of India to assess the ground realities in respect of the
existing sanctuary and on the basis of the report submitted by the said
Committee, the Ministry had desired a review of the management
effectiveness of the TWS and for the said purpose the WII was
requested to carry out a study with specific terms of reference. A
detailed scientific study based on extensive sampling was conducted
and the WII submitted a technical report which was then analyzed by
the State Government. The SBWL, which is an expert body constituted
under sub-section (1) of Section 6 of the Act, 1972 had made
recommendations for denotification of the TWS alongwith
compensatory/mitigation measures and in view thereof the State
Government had recommended the proposal which was then taken up
as an Agenda Item and a resolution for the notification of the proposed
22
wildlife sanctuary and denotification of the existing TWS was made by
the NBWL which also is an expert body constituted under Section 5A
of the Act, 1972.
39.We may at this stage also refer to the provisions contained under
Sections 5A, 5B, 5C, 6 and 8 as inserted/amended by the Wild Life
(Protection) Amendment Act, 2002 (Act No.16 of 2003), which provide
for constitution of the National Board and its Standing Committee,
functions of the National Board, constitution of the State Board for
Wildlife and its duties respectively. For ease of reference the
aforementioned provisions are being extracted below:-
“5. Power to delegate.— x x x x x
5A. Constitution of the National Board for Wild Life.—(1) The Central
Government shall, within three months from the date of commencement of
the Wild Life (Protection) Amendment Act, 2002, constitute the National
Board for Wild Life consisting of the following members, namely:-
(a) the Prime Minister as Chairperson;
(b) the Minister in-charge of Forests and Wild Life as Vice-
Chairperson;
(c) three Members of Parliament of whom two shall be from the
House of the People and one from the Council of States;
(d) Member, Planning Commission in-charge of Forests and Wild
Life;
(e) five persons to represent non-governmental organisations to be
nominated by the Central Government;
(f) ten persons to be nominated by the Central Government from
amongst eminent conservationists, ecologists and environmentalists;
(g) the Secretary to the Government of India in-charge of the
Ministry or Department of the Central Government dealing with
Forests and Wild Life;
(h) the Chief of the Army Staff;
(i) the Secretary to the Government of India in-charge of the
Ministry of Defence;
(j) the Secretary to the Government of India in-charge of the
Ministry of Information and Broadcasting;
(k) the Secretary to the Government of India in-charge of the
Department of Expenditure, Ministry of Finance;
(l) the Secretary to the Government of India, Ministry of Tribal
Welfare;
(m) the Director-General of Forests in the Ministry or Department
of the Central Government dealing with Forests and Wild Life;
23
(n) the Director-General of Tourism, Government of India ;
(o) the Director-General, Indian Council for Forestry Research and
Education, Dehradun;
(p) the Director, Wild Life Institute of India , Dehradun;
(q) the Director, Zoological Survey of India;
(r) the Director, Botanical Survey of India;
(s) the Director, Indian Veterinary Research lnstitute;
(t) the Member-Secretary, Central Zoo Authority;
(u) the Director, National Institute of Oceanography;
(v) one representative each from ten States and Union territories by
rotation, to be nominated by the Central Government;
(w) the Director of Wild Life Preservation who shall be the Member-
Secretary of the National Board.
(2) The term of the office of the members other than those who are members
ex officio, the manner of filling vacancies referred to in clauses (e), (f) and
(v) of sub-section (1), and the procedure to be followed in the discharge of
their functions by the members of the National Board shall be such, as may
be prescribed.
(3) The members (except members ex officio) shall be entitled to receive
such allowances in respect of expenses incurred in the performance of their
duties as may be prescribed.
(4) Notwithstanding anything contained in any other law for the time being
in force, the office of a member of the National Board shall not be deemed
to be an office of profit.]
5B. Standing Committee of the National Board.—(1) The National Board
may, in its discretion, constitute a Standing Committee for the purpose of
exercising such powers and performing such duties as may be delegated to
the Committee by the National Board.
(2) The Standing Committee shall consist of the Vice-Chairperson, the
Member-Secretary, and not more than ten members to be nominated by the
Vice-Chairperson from amongst the members of the National Board.
(3) The National Board may constitute committees, sub-committees or
study groups, as may be necessary, from time to time in proper discharge of
the functions assigned to it.]
5C. Functions of the National Board.—(1) It shall be the duty of the
National Board to promote the conservation and development of wild life
and forests by such measures as it thinks fit.
(2) Without prejudice to the generality of the foregoing provision, the
measures referred to therein may provide for—
(a) framing policies and advising the Central Government and the
State Governments on the ways and means of promoting wild life
conservation and effectively controlling poaching and illegal trade
of wild life and its products;
(b) making recommendations on the setting up of and management
of national parks, sanctuaries and other protected areas and on
matters relating to restriction of activities in those areas;
24
(c) carrying out or causing to be carried out impact assessment of
various projects and activities on wild life or its habitat;
(d) reviewing from time to time, the progress in the field of wild life
conservation in the country and suggesting measures for
improvement thereto; and
(e) preparing and publishing a status report at least once in two
years on wild life in the country.
6. Constitution of State Board for Wild Life.—(1) The State Government
shall, within a period of six months from the date of commencement of the
Wild Life (Protection) Amendment Act, 2002 constitute a State Board for
Wild Life consisting of the following members, namely:—
(a) the Chief Minister of the State and in case of the Union territory,
either Chief Minister or Administrator, as the case may be—
Chairperson;
(b) the Minister in-charge of Forests and Wild Life—Vice-
Chairperson;
(c) three members of the State Legislature or in the case of a Union
territory with Legislature, two members of the Legislative Assembly
of that Union territory;
(d) three persons to represent non-governmental organisations
dealing with wild life to be nominated by the State Government;
(e) ten persons to be nominated by the State Government from
amongst eminent conservationists, ecologists and environmentalists
including at least two representatives of the Scheduled Tribes;
(f) the Secretary to the State Government or the Government of the
Union territory, as the case may be, in-charge of Forests and Wild
Life;
(g) the Officer in-charge of the State Forest Department;
(h) the Secretary to the State Government, Department of Tribal
Welfare;
(i) the Managing Director, State Tourism Development Corporation;
(j) an officer of the State Police Department not below the rank of
Inspector-General;
(k) a representative of the Armed Forces not below the rank of a
Brigadier to be nominated by the Central Government;
(l) the Director, Department of Animal Husbandry of the State;
(m) the Director, Department of Fisheries of the State;
(n) an officer to be nominated by the Director, Wild Life
Preservation;
(o) a representative of the Wild Life Institute of India, Dehradun;
(p) a representative of the Botanical Survey of India;
(q) a representative of the Zoological Survey of India;
(r) the Chief Wild Life Warden, who shall be the Member-Secretary.
(2) The term of office of the members other than those who are members ex
officio and the manner of filling vacancies referred to in clauses (d) and (e)
25
of sub-section (1) and procedure to be followed shall be such, as may be
prescribed.
(3) The member (except members ex officio) shall be entitled to receive
such allowances in respect of expenses incurred in the performance of their
duties as may be prescribed.]
x x x x x
8. Duties of State Board for Wild Life.—It shall be the duty of the State
Board for Wild Life to advise the State Government,—
(a) in the selection and management of areas to be declared as
protected areas;
(b) in formulation of the policy for protection and conservation of
the wild life and specified plants;
(c) in any matter relating to any Schedule;
(cc) in relation to the measures to be taken for harmonizing the
needs of the tribals and other dwellers of the forest with the
protection and conservation of wildlife; and
(d) in any other matter connected with the protection of wild life
which may be referred to it by the State Government.”
40.The scope of judicial review in a matter relating to a policy
decision based on the view of the NBWL constituted under Section 5A
of the Act, 1972 and the decision taken by the MOEF and the Central
Government on the basis thereof was sought to be questioned in the
case of Centre for Environmental Law, Wold Wide Fund-India Vs.
Union of India & Ors.
7
and the primacy of the opinion expressed by
the National Board for wildlife was affirmed in the following terms:-
“32. The Parliament later vide Act 16 of 2003 inserted Section 5-A
w.e.f. 22-09-2003 authorising the Central Government to constitute
the National Board for Wild Life (in short “NBWL”). By the same
Amendment Act, Section 5-C was also introduced eliciting functions
of the National Board. Section 5-B was also introduced by the
aforesaid amendment authorising the National Board to constitute a
Standing Committee for the purpose of exercising such powers and
performing such duties as may be delegated to the Committee by the
National Board. NBWL is, therefore, the top most scientific body
established to frame policies and advise the Central and State
Governments on the ways and means of promoting wild life
conservation and to review the progress in the field of wild life
conservation in the country and suggesting measures for improvement
thereto. The Central and the State Governments cannot brush aside
its opinion without any cogent or acceptable reasons. Legislation in
its wisdom has conferred a duty on NBWL to provide conservation
and development of wildlife and forests.”
7 (2013) 8 SCC 234
26
x x x x x
57. The views of NBWL constituted by the Central Government in
exercise of its powers conferred under Section 5-A of the Wildlife
(Protection) Act, have to prevail over the views expressed by SBWL.
The duties conferred on the National Board under Section 5-C of the
Act and on the State Board under Section 8 of the Act are entirely
different. NBWL has a duty to promote conservation and development
of wildlife and frame policies and advise the Central Government and
the State Governments on the ways and importance of promoting
wildlife conservation. It has to carry out/make assessment of various
projects and activities on wildlife or its habitat. NBWL has also to
review from time to time the progress in the field of wildlife
conservation in the country and suggest measures for improving
thereto. Those functions have not been conferred on the State Board.
The State Board has been conferred with a duty to advise the State
Government the selection and management of areas to be declared as
protected areas and advise the State Government in formation of their
policies for protection and conservation of the wildlife and specify
plans, etc. Statutorily, therefore, it is the duty of NBWL to promote
conservation and development of wildlife with a view to ensuring
ecological and environmental security in the country. We are,
therefore, of the view that the various decisions taken by NBWL that
Asiatic lion should have a second home to save it from extinction, due
to catastrophes like epidemic, large forest fire, etc., which could result
in extinction, is justified. This Court, sitting in the jurisdiction, is not
justified in taking a contrary view from that of NBWL.”
41.Learned counsel for the petitioner has not been able to point out
any material irregularity with regard to the procedure which has been
followed with regard to the notification of the proposed wildlife
sanctuary and the denotification of the existing sanctuary. Learned
counsel has not been able to dispute the powers under sub-section (3)
of Section 26A of the Act, 1972 whereunder the alteration of the
boundaries of a sanctuary may be made by the State Government upon
a recommendation of the National Board, and it is in accordance with
the said powers that the alteration of the boundaries of the sanctuary
earlier declared and notified in exercise of powers under sub-section
(1) of Section 18 of the Act, 1972 has been proposed.
42.The Supreme Court in the case of Consumer Education and
Research Society (supra) while considering the powers under sub-
section (3) of Section 26A with regard to alteration of boundaries of a
27
wildlife sanctuary, has clearly held that it would not be proper to
question the decision in a matter of this type unless there are substantial
and compelling reasons to do so, and even when it is found by the
Court that the decision was taken without considering all the relevant
aspects it would not be prudent to invalidate the decisions unless there
was material to show that it would have irreversible and adverse effect
on the wildlife and the environment.
43.The scope of judicial review in the policy matters and
administrative decisions, has been considered by the Apex Court in a
number of cases.
44.In a public interest litigation against setting up a public project
involving environmental pollution, the Government's clearance to the
proposal for construction of a thermal power plant was challenged, and
after going into the matter in depth and finding nothing wrong in the
decision of the Government the High Court dismissed the writ petition
whereupon special leave petitions were filed before the Supreme Court
and reiterating the self-imposed restrictions of a court in considering
such an issue, the special leave petitions were dismissed by the
Supreme Court in the case of Dahanu Taluka Environment Protection
Group & Anr. Vs. Bombay Suburban Electricity Supply Company
Ltd & Ors.
8
with the following observations:-
“2. The limitations, or more appropriately, the self-imposed
restrictions of a Court in considering such an issue as this have been
set out by the Court in Rural Litigation & Entitlement Kendra v. State
of U.P. and Ors. 1987 (1) SCR 637 and Sachidanand Pandey v. State
of W.B. The observations in those decisions need not be reiterated
here. It is sufficient to observe that it is primarily for the Governments
concerned to consider the importance of public projects for the
betterment of the conditions of living of the people on the one hand
and the necessity for preservation of social and ecological balances,
avoidance of deforestation and maintenance of purity of the
atmosphere and water free from pollution on the other in the light of
various factual, technical and other aspects that may be brought to its
notice by various bodies of laymen, experts and public workers and
strike a just balance between these two conflicting objectives. The
8(1991) 2 SCC 539
28
Court's role is restricted to examine whether the Government has
taken into account all relevant aspects and has neither ignored or
overlooked any material considerations nor been influenced by
extraneous or immaterial considerations in arriving at its final
decision.”
45.The scope of judicial review of a policy evolved by the
Government was considered before the Supreme Court in Federation
of Railway Officers Association & Ors. Vs. Union of India
9
wherein
the decision of the Government to create new Railway Zones on the
basis of recommendations made by a Railway Reforms Committee and
also a study group set up for the purpose was sought to be challenged.
Upholding the decision of the High Court wherein it had been held that
propriety or beneficence of a policy decision of the Government was
beyond domain of the Court, the Special Leave Petitions were
dismissed, with the following observations:-
“12. In examining a question of this nature where a policy is evolved
by the Government judicial review thereof is limited. When policy
according to which or the purpose for which discretion is to be
exercised is clearly expressed in the statute, it cannot be said to be an
unrestricted discretion. On matters affecting policy and requiring
technical expertise Court would leave the matter for decision of those
who are qualified to address the issues. Unless the policy or action is
inconsistent with the Constitution and the laws or arbitrary or
irrational or abuse of the power, the Court will not interfere with such
matters.”
46.In Essar Oil Ltd. Vs. Halar Utkarsh Samiti
10
while considering
the decision of the State Government, which had been put to challenge,
granting permission under Section 29 of the Act, 1972, the law on the
subject was laid down in the following terms:-
“37. Once the State Government has taken all precautions to ensure
that the impact on the environment is transient and minimal, a court
will not substitute its own assessment in place of the opinion of
persons who are specialists and who may have decided the question
with objectivity and ability. [See Shri Sachidanand Pandey v. The
State of W.B. (1987) 2 SCC 295: AIR 1987 SC 1109.] Courts cannot
be asked to assess the environmental impact of the pipelines on the
wild life but can at least oversee that those with established
9(2003) 4 SCC 289
10(2004) 2 SCC 392
29
credentials and who have the requisite expertise have been consulted
and that their recommendations have been abided by, by the State
Government. If it is found that the recommendations have not been so
abided by, the mere fact that large economic costs are involved should
not deter the Courts from barring and if necessary, undoing the
development.”
47.The ambit of judicial review of the decision making process of
the Government again came up before the Supreme Court in a matter
pertaining to the safety and environmental aspects of the Tehri Dam, in
N.D. Jayal & Anr. Vs. Union of India & Ors.
11
wherein the decision of
the Government on a particular safety aspect of the dam, which was
based upon a report submitted by group of experts, was sought to be
questioned, and the Apex Court by its majority judgment held that the
Court cannot sit in judgment over the cutting edge of scientific analysis
and where the Government or the authorities concerned after due
consideration of all view points and full application of mind had taken
a decision it would not be appropriate for the Court to interfere and
such matters must be left to the wisdom of the Government or the
implementing agency, and only, if such decision is based on irrelevant
consideration or non-consideration of material or is thoroughly
arbitrary, then the Court would get in the way.
48.The relevant observations of the Supreme Court made in the
aforesaid judgment are as follows:-
“19. In the present case the Government, even after the decision of
this Court which did not interfere with the decision of the Government
on safety aspects in Tehri Bandh Virodhi Sangarsh Samiti's case
(supra) again seriously examined safety aspects as a matter of
precaution. The Office Memorandum dated 1.2.1999 of the Ministry
of Power, Government of India, before us testifies this position. Green
signal for further works was given by the Government after satisfying
itself with the safety of the dam. A mere revisit to the earlier decision
cannot be counted as a sign of doubt regarding the dam safety. If the
Government so desires they could have abandoned the Project. The
necessity or effectiveness of conducting 3D Non- Linear Test or Dam
Break Analysis were taken into account by the Government and if the
Government decided not to conduct such tests upon the opinion of the
expert bodies concerned, then the Court cannot advice the
11(2004) 9 SCC 362
30
Government to go for such tests unless malafides, arbitrariness or
irrationality is attributed to that decision. The decision of the
Government is not based on any financial constraints or uncertainty
as to technical opinion. It was clearly of the view that the last
Committee was unanimous that the Tehri Dam to be constructed is
safe but the advice based on abundant caution was not accepted. As a
result, we need not re-examine the safety aspects of the dam.
20. This Court cannot sit in judgment over the cutting edge of
scientific analysis relating to the safety of any project. Experts in
science may themselves differ in their opinions while taking decisions
on matters related to safety and allied aspects. The opposing
viewpoints of the experts will also have to be given due consideration
after full application of mind. When the Government or the
authorities concerned after due consideration of all viewpoints and
full application of mind took a decision, then it is not appropriate for
the Court to interfere. Such matters must be left to the mature wisdom
of the Government or the implementing agency. It is their forte. In
such cases, if the situation demands, the Courts should take only a
detached decision based on the pattern of the well-settled principles
of administrative law. If any such decision is based on irrelevant
consideration or non-consideration of material or is thoroughly
arbitrary, then the Court will get in the way. Here the only point to
consider is whether the decision-making agency took a well-informed
decision or not. If the answer is “yes”, then there is no need to
interfere. The consideration in such cases is in the process of decision
and not in its merits.”
49.The scope of a public interest litigation and the exercise of
judicial review in a policy matter was considered by the Supreme Court
in Networking of Rivers In Re.
12
and the principles in this regard were
restated in the following terms:-
“74. The abovestated principles clearly show that a greater element
of mutuality and consensus needs to be built between the States and
the Centre on the one hand, and the States inter se on the other. It will
be very difficult for the Courts to undertake such an exercise within
the limited scope of its power of judicial review and even on the basis
of expanded principles of Public Interest Litigation. A Public Interest
Litigation before this Court has to fall within the contours of
constitutional law, as no jurisdiction is wider than this Court's
constitutional jurisdiction under Article 32 of the Constitution. The
Court can hardly take unto itself tasks of making of a policy decision
or planning for the country or determining economic factors or other
crucial aspects like need for acquisition and construction of river
linking channels under that programme. The Court is not equipped to
take such expert decisions and they essentially should be left for the
Central Government and the State concerned. Such an attempt by the
12(2012) 4 SCC 51
31
Court may amount to the Court sitting in judgment over the opinions
of the experts in the respective fields, without any tools and expertise
at its disposal.”
50.In the case of Jal Mahal Resorts (P) Ltd. Vs. K.P. Sharma
13
the
Supreme Court while examining the decision of the Government of
Rajasthan to restore the Lake and Jal Mahal monument and declare the
precinct area on a public-public partnership format observed as
follows:-
“137. Although the Courts are expected very often to enter into the
technical and administrative aspects of the matter, it has its own
limitations and in consonance with the theory and principle of
separation of powers, reliance at least to some extent to the decisions
of the State Authorities specially if it based on the opinion of the
experts reflected from the project report prepared by the technocrats,
accepted by the entire hierarchy of the State administration,
acknowledged, accepted and approved by one Government after the
other, will have to be given due credence and weightage. In spite of
this if the Court chooses to overrule the correctness of such
administrative decision and merits of the view of the entire body
including the administrative, technical and financial experts by taking
note of hair splitting submissions at the instance of a PIL petitioner
without any evidence in support thereof, the PIL petitioners shall
have to be put to strict proof and cannot be allowed to function as an
extraordinary and extra judicial ombudsmen questioning the entire
exercise undertaken by an extensive body which include
administrators, technocrats and financial experts. This might lead to
a friction if not collision among the three organs of the State and
would affect the principle of governance ingrained in the theory of
separation of powers.”
51.In the case of Centre for a Public Interest Litigation Vs. Union
of India & Ors.
14
while considering the scope of a judicial review of a
policy decision of the Government, a view was taken calling for
minimal interference by the Courts in exercise of powers of judicial
review of Government policy when based on deliberations of technical
experts. It was held that interference with the discretion of the
Government would be warranted only when found to be arbitrary, mala
fide, based on extraneous considerations or against statutory provisions.
The observations made by the Supreme Court in the said judgment are
13(2014) 8 SCC 804
14(2016) 6 SCC 408
32
being extracted below:-
“21. Such a policy decision, when not found to be arbitrary or based
on irrelevant considerations or mala fide or against any statutory
provisions, does not call for any interference by the Courts in exercise
of power of judicial review. This principle of law is ingrained in stone
which is stated and restated time and again by this Court on
numerous occasions. In Jal Mahal Resorts (P) Ltd. v. K.P. Sharma,
the Court underlined the principle in the following manner:
137. From this, it is clear that although the courts are expected very
often to enter into the technical and administrative aspects of the
matter, it has its own limitations and in consonance with the theory
and principle of separation of powers, reliance at least to some
extent to the decisions of the State authorities, specially if it is based
on the opinion of the experts reflected from the project report
prepared by the technocrats, accepted by the entire hierarchy of the
State administration, acknowledged, accepted and approved by one
Government after the other, will have to be given due credence and
weightage. In spite of this if the court chooses to overrule the
correctness of such administrative decision and merits of the view of
the entire body including the administrative, technical and financial
experts by taking note of hair splitting submissions at the instance of
a PIL petitioner without any evidence in support thereof, the PIL
petitioners shall have to be put to strict proof and cannot be allowed
to function as an extraordinary and extra-judicial ombudsmen
questioning the entire exercise undertaken by an extensive body
which include administrators, technocrats and financial experts. In
our considered view, this might lead to a friction if not collision
among the three organs of the State and would affect the principle of
governance ingrained in the theory of separation of powers. In fact,
this Court in M.P. Oil Extraction v. State of M.P., (1997) 7 SCC 592
at p. 611 has unequivocally observed that:
'41. The power of judicial review of the executive and
legislative action must be kept within the bounds of
constitutional scheme so that there may not be any occasion
to entertain misgivings about the role of judiciary in
outstepping its limit by unwarranted judicial activism being
very often talked of in these days. The democratic set-up to
which the polity is so deeply committed cannot function
properly unless each of the three organs appreciate the need
for mutual respect and supremacy in their respective fields.'
138. However, we hasten to add and do not wish to be
misunderstood so as to infer that howsoever gross or abusive may
be an administrative action or a decision which is writ large on a
particular activity at the instance of the State or any other authority
connected with it, the Court should remain a passive, inactive and a
silent spectator. What is sought to be emphasised is that there has to
be a boundary line or the proverbial “Laxman rekha” while
examining the correctness of an administrative decision taken by the
State or a Central authority after due deliberation and diligence
which do not reflect arbitrariness or illegality in its decision and
execution. If such equilibrium in the matter of governance gets
disturbed, development is bound to be slowed down and disturbed
33
specially in an age of economic liberalisation wherein global
players are also involved as per policy decision.
22. Minimal interference is called for by the courts, in exercise of
judicial review of a Government policy when the said policy is the
outcome of deliberations of the technical experts in the fields
inasmuch as courts are not well-equipped to fathom into such domain
which is left to the discretion of the execution. It was beautifully
explained by the Court in Narmada Bachao Andolan v. Union of
India (2000) 10 SCC 664 and reiterated in Federation of Railway
Officers Assn. v. Union of India (2003) 4 SCC 289 in the following
words:
“12. In examining a question of this nature where a policy is
evolved by the Government judicial review thereof is limited. When
policy according to which or the purpose for which discretion is to
be exercised is clearly expressed in the statute, it cannot be said to
be an unrestricted discretion. On matters affecting policy and
requiring technical expertise the court would leave the matter for
decision of those who are qualified to address the issues. Unless the
policy or action is inconsistent with the Constitution and the laws or
arbitrary or irrational or abuse of power, the court will not interfere
with such matters.”
23. Limits of the judicial review were again reiterated, pointing out
the same position by the courts in England, in G. Sundarrajan v.
Union of India (2013) 6 SCC 620 in the following manner:
“15.1. Lord MacNaughten in Vacher & Sons Ltd. v. London Society
of Compositors (1913 AC 107 : (1911-13) All ER Rep 241 (HL) has
stated:
“... Some people may think the policy of the Act unwise and
even dangerous to the community. … But a judicial tribunal
has nothing to do with the policy of any Act which it may be
called upon to interpret. That may be a matter for private
judgment. The duty of the court, and its only duty, is to
expound the language of the Act in accordance with the
settled rules of construction.”
15.2. In Council of Civil Service Unions v. Minister for the Civil
Service (1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935
(HL), it was held that it is not for the courts to determine whether a
particular policy or particular decision taken in fulfilment of that
policy are fair. They are concerned only with the manner in which
those decisions have been taken, if that manner is unfair, the
decision will be tainted with what Lord Diplock labels as
“procedural impropriety.”
15.3. This Court in M.P. Oil Extraction v. State of M.P. (1997) 7
SCC 592 held that unless the policy framed is absolutely capricious,
unreasonable and arbitrary and based on mere ipse dixit of the
executive authority or is invalid in constitutional or statutory
mandate, court's interference is not called for.
15.4. Reference may also be made of the judgments of this Court in
Ugar Sugar Works Ltd. v. Delhi Admn. (2001) 3 SCC 635, Dhampur
Sugar (Kashipur) Ltd. v. State of Uttaranchal (2007) 8 SCC 418 and
34
Delhi Bar Assn. v. Union of India (2008) 13 SCC 628.
15.5. We are, therefore, firmly of the opinion that we cannot sit in
judgment over the decision taken by the Government of India,
NPCIL, etc. for setting up of KKNPP at Kudankulam in view of the
Indo-Russian Agreement.”
24. When it comes to the judicial review of economic policy, the
Courts are more conservative as such economic policies are generally
formulated by experts. Way back in the year 1978, a Bench of seven
Judges of this Court in Prag Ice & Oil Mills v. Union of India (1978)
3 SCC 459 : AIR 1978 SC 1296 : 1978 Cri LJ 1281 carved out this
principle in the following terms:
“24. We have listened to long arguments directed at showing us that
producers and sellers of oil in various parts of the country will
suffer so that they would give up producing or dealing in mustard
oil. It was urged that this would, quite naturally, have its
repercussions on consumers for whom mustard oil will become even
more scarce than ever ultimately. We do not think that it is the
function of this Court or of any court to sit in judgment over such
matters of economic policy as must necessarily be left to the
government of the day to decide. Many of them, as a measure of
price fixation must necessarily be, are matters of prediction of
ultimate results on which even experts can seriously err and
doubtlessly differ. Courts can certainly not be expected to decide
them without even the aid of experts.”
25. Taking aid from the aforesaid observations of the Constitution
Bench, the Court reiterated the words of caution in Peerless General
Finance and Investment Co. Limited v. RBI (1992) 2SCC 343 with the
following utterance:
“31. The function of the court is to see that lawful authority is not
abused but not to appropriate to itself the task entrusted to that
authority. It is well settled that a public body invested with statutory
powers must take care not to exceed or abuse its power. It must keep
within the limits of the authority committed to it. It must act in good
faith and it must act reasonably. Courts are not to interfere with
economic policy which is the function of experts. It is not the
function of the courts to sit in judgment over matters of economic
policy and it must necessarily be left to the expert bodies. In such
matters even experts can seriously and doubtlessly differ. Courts
cannot be expected to decide them without even the aid of experts.”
26. It cannot be doubted that the primary and central purpose of
judicial review of the administrative action is to promote good
administration. It is to ensure that administrative bodies act
efficiently and honestly to promote the public good. They should
operate in a fair, transparent, and unbiased fashion, keeping in
forefront the public interest. To ensure that aforesaid dominant
objectives are achieved, this Court has added new dimension to the
contours of judicial review and it has undergone tremendous change
in recent years. The scope of judicial review has expanded radically
and it now extends well beyond the sphere of statutory powers to
include diverse forms of “public” power in response to the changing
35
architecture of the Government. Thus, not only has judicial review
grown wider in scope; its intensity has also increased.
Notwithstanding the same,
“it is, however, central to received perceptions of judicial review
that courts may not interfere with exercise of discretion merely
because they disagree with the decision or action in question;
instead, courts intervene only if some specific fault can be
established–for example, if the decision was reached procedurally
unfair.
27. The raison d'etre of discretionary power is that it promotes
decision maker to respond appropriately to the demands of particular
situation. When the decision-making is policy-based, judicial
approach to interfere with such decision making becomes narrower.
In such cases, in the first instance, it is to be examined as to whether
policy in question is contrary to any statutory provisions or is
discriminatory/arbitrary or based on irrelevant considerations. If the
particular policy satisfies these parameters and is held to be valid,
then the only question to be examined is as to whether the decision in
question is in conformity with the said policy.”
52.In G. Sundarrajan Vs. Union of India
15
a challenge sought to be
raised regarding setting up of a nuclear power plant on grounds of
safety and environmental protection was repelled by the Apex Court
and it was held that fairness and reasonableness of policy and findings
by experts were not amenable to judicial review and that the Courts
were concerned only with the manner in which the policy decisions had
been taken and unless the policy framed was absolutely capricious,
unreasonable and arbitrary and based on mere ipse dixit of the authority
or was invalid in constitutional or statutory mandate the Court's
interference was not called for.
53.In the present case, as we have discussed earlier, the process for
notification of the proposed sanctuary and the denotification of the
existing sanctuary has been initiated on the basis of a report submitted
by an expert team constituted by MOEF & CC to assess the ground
realities in respect of the existing sanctuary and on the basis of the
report submitted by the expert team a review of the management
effectiveness of the TWS was sought and for the said purpose the WII
was requested to carry out a study with specific terms of reference
15(2013) 6 SCC 620
36
whereafter a detailed scientific study based on extensive sampling was
conducted by the WII and a technical report was submitted which was
then analyzed by the State Government. The SBWL, an expert body
constituted under sub-section (1) of Section 6 of the Act, 1972 made
recommendations for denotification of the TWS alongwith
compensatory/mitigation measures and in view thereof the State
Government recommended the proposal which was when taken up as
an Agenda Item at the 50
th
Meeting of the Standing Committee of
NBWL held on 07.09.2018, and after discussions the Standing
Committee has decided to recommend the proposal of the State
Government, and accordingly it was resolved that the State
Government may proceed with the process of notification of the
proposed wildlife sanctuary and denotification of the TWS. The
proposed decision is thus based on the opinion of the experts and after
following the due procedure under law and there does not appear to be
any material illegality in the same.
54.On the basis of the facts of the case as available on record, the
submissions of the parties and the legal position referred to above, we
are of the considered view that no interference is called for in exercise
of jurisdiction under Article 226 of the Constitution of India in the
present public interest litigation.
55.The writ petition lacks merits and is, accordingly, dismissed.
56.It would, however, be open to the petitioner to submit his
suggestions, if any, on the proposal in question before the authorities
concerned.
Order Date :- 4.1.2019
Shahroz
(Dr. Y.K. Srivastava,J.) (Govind Mathur,C.J.)
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