Gujarat High Court
Biren Padhya vs State Of Gujarat And Ors. on 11 March, 2002
Equivalent citations: (2002)3GLR23
Author: Jayant Patel
Bench: Jayant Patel
JUDGMENT
B.C. Patel, Actg. C.J.
1. This petition is filed by the petitioner for quashing and setting aside the decision dated 7-11-2001. It also prayed to constitute Wild Life Advisory Board under Section 6 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as "the Act").
2. From the record, it transpires that one Special Civil Application No. 2583 of 2001 was filed before this Court and the Division Bench of this Court while disposing of the said petition directed as under :
"The Wild Life Advisory Board while deliberating the subject in its meeting, shall take a formal decision and convey the same to the State Government within an outer limit of two months from the date of its meeting. Before taking such decision the Board shall also grant due opportunity of hearing in the matter to both the parties and permit them to place their point of view and the material and information or study with them, on the subject."
3. It is submitted by the petitioner that the decision is produced on record from pages 18 to 22. However, the said decision cannot be said to be the decision of the Board.
4. The learned Advocate appearing for the petitioner submitted that the constitution of Wild Life Advisory Board is a must, but in the instant case, as the State Government has not appointed persons not exceeding 10, who in the opinion of the State Government are interested in the protection of wild life, constitution of the Board cannot be said to be legal and without the aid and assistance of such members the decision so rendered cannot be said to be legal and valid. Section 6 of the Act reads as under :
"6. Constitution of Wild Life Advisory Board :
(1) The State Government, or in the case of a Union Territory, the Administrator, shall, as soon as may be after the commencement of this Act, constitute a Wild Life Advisory Board consisting of the following members, namely :
(a) The Minister in Charge of Forests in the State or Union Territory or if there is no such Minister, the Chief Secretary to the State Government or as the case may be, the Chief Secretary to the Government of the Union Territory, who shall be the Chairman;
(b) Two members of the State Legislature or in the case of a Union Territory having a Legislature, two members of the Legislature of the Union Territory, as the case may be;
(c) Secretary to the State Government or the Government of the Union Territory, in charge of forests;
(d) The Forest Officer in charge of State Forest Department by whatever designation called, ex officio;
(e) an officer to be nominated by the Director;
(f) Chief Wild Life Warden, ex officio;
(g) Officers of the State Government not exceeding five;
(h) such other persons not exceeding ten, who, in the opinion of the State Government are interested in the protection of Wild Life, including representatives of tribals not exceeding three;
(1-A) The State Government may appoint Vice-Chairman of the Board from amongst the members referred to in Clause (b) and (h) of Sub-section (1);
(2) The State Government shall appoint the Forest Officer in the charge of the State Forest Department of Chief Wild Life Warden as the Secretary of the Board;
(3) The term of office of the members of the Board referred to in Clause (g) of Sub-section (1) and the manner of filling vacancies among them shall be such as may be prescribed;
(4) The members shall be entitled to receive such allowances in respect of expenses incurred in the performance of duties as the State Government may prescribe;"
5. However, Mr. Oza, learned Government Pleader relied on Sub-section (3) of Section 7 of the Act and submitted that the said decision should be accepted.
The said Sub-section (3) of Section 7 of the Act reads as under :
"7(3) No act or proceeding of the Board shall be invalid merely by reason of the existence of any vacancy therein or any defect in the constitution thereof or any irregularity in the procedure of the Board affecting the merits of the case."
6. In view of the aforesaid Sub-section (3) of Section 7, it is submitted that the act or proceeding of the Board cannot be said to be invalid as the non-Governmental persons are not appointed as members. It is required to be noted that this provision is introduced with a view to avoid any technical snag or to avoid absence of members in rendering services on his resignation, but so far as the constitution of the Board is concerned, it must be constituted in accordance with the provisions of Section 6 and the decision of such Board shall be the real decision. In our opinion, as the Board is not constituted in accordance with the provisions of Section 6 of the Act, the decision cannot be said to be a decision of the Board, and therefore, this is a fit case wherein the State Government should constitute the Board in accordance with law. Mr. Oza submitted that the Government has taken a decision which is produced on record at page 55, i.e., the resolution in exercise of powers conferred under the Act whereby the Government has constituted the Wild Life Advisory Board. Sub-clauses (1) and (2) indicate as to who are the members to be appointed by the Government and who are in service of the State. Clause (3) refers to officers who will be invited as a special invitee. So far as Sub-clause (h) of Sub-section (1) of Section 6 is concerned, Clause (4) of the resolution indicates appointment of any non-official members of the said Board to be made later on. It is submitted that as per clause (3) of the resolution members have been appointed, but however non-official members have not been appointed. We direct the State Government to make appointment of non-official members as indicated in Section 6 within three months and to see that the decision is rendered by the Board after its constitution in accordance with the provisions contained in Section 6 of the Act and the Board shall render decision within one month thereafter.
7. On behalf of private respondents it is submitted that the State Government, if at all is interested in acquiring the land for declaring as Wild Life Sanctuary, then the land which belongs to the private respondents should be acquired and the private respondents cannot be deprived of using the entire land in the way they like as on today and they can deal with the property the way in which they like till the decision is rendered by the Board; however, we are of the opinion that the same will be subject to the outcome of the decision that may be rendered by the Board. This petition is allowed to the aforesaid extent. There shall be no order as to costs. No further orders are required to be passed in earlier Special Civil Application Nos. 2322 of 2001 and 2883 of 2001 and they stand disposed of accordingly.