CONSUMER EDUCATION AND RESEARCH SOCIETY A

v.

UNION OF INDIA AND ORS.

FEBRUARY 16, 20CO

[G.T. NANAVATI AND S.N. PHUKAN, JJ.j

Wild Life Protection Act, 1972: Sections 18(1) and 26A(3).

Forest Area-Declaration of as "Wildlife Sanctuary-Reduction in area

of sanctuary limit subsequently-Legality of.

B

c

State of Gujarat-Notification declaring forest area as a wildlife

sanctuary-Cancellation of notification and issue of another notification

whereunder only a party

of the said reserved forest declared as wild/if e sanctu~elimitation to the area of sanctuary successfully challenged D

before High Co~Thereafter State Legislature passed a Resolution reducing

the sanctuary

limit-Rest of the area made available for development of

backward area of

District--Consequential notification by Government-Writ

challenging Resolution and Notification dismissed by

High Court-Appeal

before this Court--lnterim order

by Supreme

Court permitting mining of

limestone for meeting the requirements of a cement plant-Held the power to E

take a decision for reduction of the notified area is not given to the State

Government but to the State Legislature--lf an attempt is made by the State

Legislature and the State Government

to balance the need of the environment

and the need

of economic development it would not be proper to apply the

principles

of Prohibition in such a

case--lt would be proper and safer to apply F

the 'Principle of Protection' and the 'Principle of Polluter Pays' keeping in

mind the principle of 'sustainable development' and the 'principle of inter­

generation equity'-The impugned resolution and the notification do not

deserve to be quashed-Proper course

is to permit restricted and regulated

exploitation

of mineral wealth--Direction by Supreme Court-The interim

order passed

by this

Court shall continue for a period of one year-if a need G

arises to carry out mining operation in a larger area that may be permitted

only after obtaining

an order to that effect from this Court-The State Govern­

ment shall constitute a Committee to make a

comprehensive study of the

relevant environmental aspects and also to study the effects of the present

limited mining operation permitted by this Court-It shall also study the effect H

907

908 SUPREME COURT REPORTS [2000) 1 S.C.R.

A of rnnning of the cement plant set up outside the old sanctuary area-The

State Government is restrained from giving permission to others to cany on

any mining operation or to put up a cement plant within the area of JO kms.

from the periphery of the old sanctuary area without obtaining an order from

this court-State Government shall also take steps to monitor air and water

B pollution in this area every three months through its officers and submit its

report in that behalf-The State Government shall also submit a yearly report

to this Court as regards the action taken by it.

State Legislature-Resolution to reduce the limit of wild/if e

sanctuary-Validity of-Power of court to interfere with decision of State

C Legislature in such a matter-Held it is not 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.

D

CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)

No.

13658 of 1996.

From the Judgment and Order dated

11.10.95 of the Gujarat High

Court in S.C.A. No. 6507 of 1995.

Ashok Desai, Attorney General, K.N. Rawal, Altaf Ahmad, Mukul

Rohatagi, Additional Solicitor Generals, Dr. Rajiv Dhawan,

N.N. Gos-

E wami, Dr. Abhished Manu Singhvi,

R.P. Bhatt, P. Chidambaram, Harish

N. Salve, Arun Jaitley, Naresh Mathur, S.K. Dholakia, Ashok Desai, G.

Ramaswamy, Bhaskar Tanna, Raju Ramachandran, Soli J. Sorabjee,

Naresh Mathur,

N.K.

Sahool, Ms. Indoo P. Verma, Samecr Parekh, P.H.

Parekh, N. Singh Rohit Mammen Alex, Ms. Hemantika Wahl, Ms. M.

F Kaur, Anupam Lal Das, Ms. Sandhya Rajpal, T.C. Sharma, Hemant Shar­

ma, S.K. Dwivedi, P. Parmeswaran, Narcsh Bakshi, B.V. Bairam Das, Ms.

Sumita Hazarika, \is. Sunita Sharma, Anip Sachthey, Ms. Anu Sawhney,

Anupam Lal, AL. Das, Ms. Shweta Shalini, B.V. Balaram Das, H. Munshi,

J.P. Pathak, Ms. Indra Sawhney, Krishna Venugopal, C.D. Singh, Ms. Bina

Madhavan,

Ms. Anil Katiyar, M.N.

Shroff, Mihar Joshi, Ms. Mahrook

G Karawala, S.R. Hegde, Ms. Tanuja Sheel and Ms. Reema Bhandari for the

appearing parties.

The Judgment of the Court

was delivered by

G.T.

NANAVATI, J. ln this special leave petition the judgment and

H order passed by the High Court in

Special Civil Application No. 6707 of

CO!<SL Mf:R EDUlAl10N AND RESEARCH SOC!ElY Y. U.U.!. [NANA VATI, J.) 909

1995 is challenged. The petitioner had filed the writ petition challenging A

the Govermm:nt Notification dated 9.8.1995 and the Resolution dated

27.7.1995 passed by the State Legislature reducing the area of "Narayan

Sarovar Chinkara Sanctuary" from 765.79 Sq. K.M. to 444.23 Sq. K.M. The

High Court dismissed that petition.

On 14.4.1981 the Government of Gujarat, in exercise of the powers

conferred

by Section 18(1) of the Wild Life Protection Act, 1972, declared

a part of the forest area in Lakhphat Taluka of Kutch District

as a ''Wild

Life Sanctuary;. The total area of the sanctuary was 765.79 Sq. K.M. On

27. 7.1993 it cancelled that notification and issued another whereby only a

B

c part of the said reserved forest was declared as the "Chinkara Wild Life

Sanctuary". The area so declared was 94.87 Sq. K.M. The said two notifica­

tions were challenged by the petitioner by filing writ petitions in the

Gujarat High Court. The High Court quashed both those notifications. The

result

was that the earlier notification dated 14.4.1981

was revived. There­

after the State Government made certain inquiries and decided to delimit D

the area of that sanctuary as it was found to be more than required and

the delimitation

was likely to

be.: helpful in systematically developing that

area economically

by making use of its mineral wealth. It then moved the State Legislature for passing an appropriate resolution in that behalf. The

State Legislature, thereafter on

27. 7.1995, passed a resolution to reduce the

sanctuary limit

to 444.23 Sq. K.M. and make the area of 321.56 Sq. K.M. E

rich with minerals like limestone, lignite, bauxite and bentonite, available

for the development of the said backward area of Kutchh District. The

resolution

was passed in exercise of the powers conferred by Section

26A(3) of the Wild Life Protection Act. Pursuant to that resolution the

Government issued a notification to that effect on

9.8.1995. The petitioner F

again challenged those notifications by filing the writ petition.

The High Court, after scrutinising the resolution,

was of the view that

"the State Legislature was quite aware about the wild life as without in any

way diluting the commitment to protect wild life and to improve the

habitat, positive steps are taken

so neither wildlife is affected nor the G

improvement is

affected." The High Court held that for about 12CO

Chinkaras the area of 444.23 Sq. K.M. was quite sufficient. It further held

that economic development of the area

was likely to benefit the people of

Kutchh District at large and help in prottction, preservation and

develop­

ment of flora and fauna of that area. As regards permission to set up the H

910 SUPREME COURT REPORTS [2000] 1 S.CR.

A cement plant near that area and to do mining in the de-notified area, it

held that proper conditions have

been imposed for preventing pollution

and to meet other environmental requirements. Taking this view it dis­

missed the writ petition.

Initially

an attempt was made to see if it was possible to pass an

B agreed order. But that attempt did not succeed.

On 8.5.1997 the following

interim order was passed.

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".............. without prejudice to the rights and contentions of the

parties in the pending S.L.P. ( C)

No. 13658 of 1996, the respondent

No. 6

is permitted to undertake prospective operation for the

proposed lime-stone mining in respect of

500 Hee. being close to

their Cement Factory in a compact block which

will also be close

to

the boundary of the reserved sanctuary. The respondent No. 6

is permitted to carry

on actual

mining operation of lime-stone in

any area confined to 250 Hee., on condition that the lime-stone

which will be extracted by such mining operation

will not be sold. Such mining operation, however, may be carried on after getting

necessary permission from all concerned authorities under various

Acts. The respondent No.

6 will also furnish bank guarantee of a

nationalised bank for a sum of Rupees fifty lakhs, for the purpose

of compensating damage to the disputed area and for meeting

obligation, if any, flowing from any order that may be passed later

on.•

Meanwhile, an Expert Committe of the Gujarat Government carried out

p the study of that area and submitted its report to the Government. On

14.5.1999 both the parties were again heard. The report submitted by the

Expert Committee, an earlier report of the Wild Life Institute

and the

counter affidavit filed by

tht: Central Govt:rnment were considert:d. It was

found that

all the relevant aspects

wc::rc not considered by the two Com­

mittees which had enquired into the matter.

It was, therefore, thought

G proper to direct the Central

Govc::rnment to constitute an Expert Commit­

tee consisting of experts in differcnt disciplines. That Committee. was

directed to undertake a survey of the Narayan Sarovar Sanctuary as

originally notified and to consider in the light of the subsequent de-noti,fic~­

tion wht:ther the remaining area is of adequate ecological, fauna1., floral

H geomorphological, natural or zoological significance for the µuip""· OJ

CONSUMER EDUCATION AND RESEARCH SOCIETY v. U.0.1. [NANAVATI, J.] 911

protecting, propagating or developing wild life and its environment. A

The matter was thereafter heard on 11.1.2000, 12.1.2000, 13.1.2000

and 19.1.2000. It was submitted by Mr. Rajiv Dhawan, learned senior

counsel appearing for the petitioner that the State Government had wrong-

ly assumed and believed that the purpose of the notification dated

14.4.1981 was just to protect the Chinkaras in that area. In fact it was issued

with a

view to protect the eco-system also. He also submitted that the State

Government did not apply its mind to all the relevant aspects, did not call

for any further information and mainly relying upon the opinion of the

State Government passed the impugned resolution.

He also submitted that

B

c the fact that there were a large number of trees on the land which was

given on lease for the purpose of setting up the cement plant was not

brought

to the notice of the Legislature. The Legislature was also not made

aware of the condition imposed by the

Union of India on 16.6.1995 that no

mining be done within

25 K.M. of the original sanctuary. He further

submitted that the Debate which took place in the Assembly discloses that

D

the information which was available to the Member of the Assembly was

insufficient and only because the majority of the Members so desired that

the said resolution came to be passed.

What

we find from the Debate that took place in the Assembly and

the resolution

is that the matter was discussed for two days, number of E

objections that was raised

were considered and the decision was taken in

overall public interest. The following paragraph from the resolution dis­

closes that :

"AND WHEREAS the State Government has considered all p

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 nature

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 G

which is ravaged by nature's inhospitality and which is based upon

minerals and enter into an area of development and prevents

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 H

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912 SUPREME COURT Rf.PORTS (2000] 1 S.C.R.

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 diluting the commitment to protect wild life

and tu improve

the habitat by po>itive steps the Government is

proposing this resoluriun under the provisions of S.:ction 26A(3)

of the Wild Life (Protection) Act, 1972."

We agree with Mr. Dhawan that aspects deserved better consideration and

some other relevant aspects should also

have been taken into account by

the State Legislature. But it will not he proper to invalidate the resolution

C of the State Legislature on such a ground when we find that it took the

decision after duly ddiberating upon the material which

was available with

it and did not think

lt 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

D representatives of the people and it can be presumed that those repn:­

sentatives know the local areas well and are also well aware of the require­

ments 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

E 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.

The forest in the notified and de-notified areas

is an

edaphi<; thorn

F forest. It is a desert forest but with a large number of trees. It has been

identified as a potential site for d~ignation as a bio-spht:re reserve by an

Expert Committee constituted

by the Ministry of Environment and Forest.

It has been put

in a Rich area category'', from bio-diversity poiot of view,

by the Gujarat Ecology Commission.

Ewn the Union of India in its

G affidavit has stated that the de-notified area of the sanctuary iocludes many

areas of high and wry high floral and fauna! value and these areas form

integral part of the !'larayan Sarovar Sanctuary. The Rapid Impact Assess­

ment Report by the Wildlife Institute of India has also poioted out that any

reduction io the area of that sanctuary

will reduce the number of species

of trees. It

is also at the same time true, as pointed out by the Government,

H that this part of the Kutch District is a backward area. There is no other

-

CUNsl:MbR hDUCATION AND RESEARCH SOCIEIY v. l!.0.1. [NANA VATI, J.J 913

possibility of industrial development in that area, though it contains rich A

mineral deposits. Therefore, if an attempt is made by the State Legislature

and the State Gowrnment to balance the need of the environment and the

need of economic development

it would not be proper to apply the

principles of Prohibition in such a case. The reports of the three

commit·

tees only point out the ecological importance of the area and express an

apprehension, that any major mining operation within the notified area and

large scale industrialisation near about the sanctuary as originally notified,

may adversely affect the ecological and bio·diversity of that area. It would,

therefore, be proper and safer to apply the 'Principle of Protection' and

the 'Principle of Polluter Pays' keeping in mind the principle of 'sustaina.ble

development' and -the 'principle of Inter·generation equity".

B

c

For the reasons stated above, we are not inclined to accept the

contention raised by Mr. Dhawan that the impugned resolution and the

notification deserve to be quashed. In our opinion the proper course to be

adopted in this case

is to permit restricted and controlled exploitation of D

the mineral wealth of that area, watch its effects for a period of about five

years and direct a comprehensive study of the notified and denotificd area

from the environmental point

of view.

We, accordingly direct that (1) the interim

ordt:r passed by this Court

shall continue for a period

of one year. If a need arises to carry out mining E

operation in a larger area that may be permitted only

after . obtaining an

order to that effect from this Court; (2) the Stak Government shall

constitute a Cimn1ittt>e headed by & r::tir.;;<l J,iJ;sc cJf we Gu.fatal High

Court and consisting of experts in the fields of hydrology, soil erosion and

other related disciplines to make a comprehensive study

of the rdevant F

environmental aspects and also to study the effects of the present limited

mining operation permitted by this Court. It shall also study the effect

of

running of the cement plant set up outside the old sanctuary area. The

Committee shall, for this purpose, visit the area twice in a year, once before

the monsoon and thereafter sometime after the monsoon, and submits its

report to the

State Government and to this Court, (3) the State Govern· G

ment is restrained from giving permission to others to carry on any mining

operation

or to put up a cement plant within the area of

10 Krns. from the

periphery

of the old sanctuary area without obtaining an order from this

Court. The

State Government shall also take steps to monitor air and water

pollution in this area every three months through its officers and submit its

H

914 SUPREME COURT REPORTS [2000] 1 S.C.R.

A report in that behalf. After considering the reports the State Government • ~

shall take appropriate steps for controlling and improving the same. The

State Government shall also submit a yearly report to this Court as regards

the action taken

by it. This

S.L.P. is ordered to be listed after one year for

further orders. It

will be open to the parties to approach this Court earlier

B if any clarification or modification of this order is required.

T.N.A.

Petition is still pending