Consumer Education and Research Society v. Union of India and Others.
MANU/SC/0101/2000
Background and facts
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 Lakhpat Taluka of Kutch District as a “wild Life Sanctuary”. The total area of the sanctuary was 765.79 sq. Kilometres. On 27.7.1993 it cancelled that notification and issued another whereby only a part of the said reserved forest was declared as the ‘chinkara wild life sanctuary’. The area so declared was 94.87 sq. Kilometres. The said two notifications were challenged by the petitioner by filing writ petitions in the Gujurat High Court. The High Court quashed both those notifications. The result was that the earlier notification dated 14.4.1981 was revived. Thereafter the state government made certain inquiries and decided to delimit 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. kilometres and make an area of 321.56. sq. kilometres rich with minerals like limestone, lignite, bauxite and bentonite, available for the development of the said backward area of kutchh district. The resolution was passes 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 again challenged those notifications by filing the writ a petition. The High Court held that for about 1200 Chinkaras the area of 444.23 Sq. Km 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 protection, preservation and development of flora and fauna of that area. As regards permission to set up a cement plant near that area and to carry out 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 dismissed the writ petition.
Issues for Consideration- Whether the impugned resolution and notification limiting the area of the wildlife sanctuary were to be quashed?
Arguments Advanced
It was submitted by Mr. Rajiv Dhawan, senior counsel appearing for the petitioner that the state Government had wrongly assumed believed that the purpose of the notification dated 14.4.1991 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 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 the debate that the said resolution came to be passed.
Judicial Reasoning, Principles involved and decision
The court agreed with petitioners that some aspects deserved better consideration and some other relevant aspects should also have been taken into account by the state legislature on such a ground when it found 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 court pointed out that the power to take a decision for reduction after of the notified area was not given to the state government but to the state legislature. Further, the state legislature consists of representatives of the people and it could be presumed that those representatives know the local areas well and were also well aware of the requirements of that area. The court held that it would not be proper to question the decision of the state legislature in a matter of this type unless there were substantial and compelling reasons to do so. Even when it was found by the court that the decision was taken by the state legislature hastily and without considering all the relevant aspects it would not be prudent to invalidate its decision unless there was material to show that it would have irreversible adverse effect on the wild life and the environment. The following paragraph from the judgement has been much cited:
‘This forest in the notified and de- notified areas in an edaphic thorn forest. It is a desert forest but with large number of trees. It has been identified as a potential site for designation as a bio-sphere 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 point of view, by the Gujarat Ecology Commission. Even the Union of India in its affidavit has stated the de-notified area of the sanctuary includes many areas of high and very high flora and fauna value and these areas from integral part of the Narayan Sarovar Sanctuary. The rapid impact Assessment Report by the Wildlife Institute of India has pointed out that any reduction in 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, that this part of the kutchh district is a backward area. There is no other possibility of industrial development in that area, though it contains rich mineral deposits. Therefore, if 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 principle of prohibition in such a case. The reports of the three committees 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 industrialization near about the sanctuary as originally notified, may adversely affect the ecological balance 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 sustainable development and the ‘principle of Inter-generation equity’.
The court did not accept the petitioners contention that the impugned resolution and the notification deserved to be quashed, and held that the proper course to be adopted in this case was to permit restrict and controlled exploitation of the mineral wealth of that area, to watch its effects for a period of about five years and to direct a comprehensive study of the notified and de-notified area from the environmental point of view.