Madras High Court
Bombay Burmah Trading Corporation vs Field Director (Project Tiger) And ... on 5 October, 1999
Equivalent citations: AIR 2000 MADRAS 163
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER P.D. Dinakaran, J.
1. Both the writ petitions are filed by Bombay Burmah Trading Corporation, Singampattl Group, Manjolal, Tirunelvell, aggrieved by the proceedings dated 4-1-1991 passed by the Field Director (Project Tiger) & Conservator of Forest, Tirunelveli and proceedings dated 7-2-1991 passed the Deputy Director, Mundanthurai, Kalakadu Sanctuary. Ambasamudaram, respectively.
2. The proceedings dated 4-1-1991 as well as 7-2-1991. which are impugned in the above writ petitions are related to the usage of road inside the Mundanthurai Kalakadu Wild Life Sanctuary, which is included in the Tiger Project area. Admittedly, the estate of the petitioner is located within the limits of the said sanctuary. As the grievance of the petitioner and the relief sought for in both the writ petitions are similar in nature, they were heard and disposed of together.
3. The 'petitioner company have taken a tea estate of an extent of 3500 hectares (8373.57 acres) on lease, in Nellai Kattabomman District, under lease deed dated 12-2-1929 for ninety nine years. The said lease was taken over by the Government on 19-2-1952 under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. However, the erstwhile Board of Revenue, in the year 1958, allowed the petitioner to continue and keep the entire lease out area for the rest of the lease period, subject to certain additional conditions.
4. It is not in dispute that the entire extent of 3500 hectares leased out to the petitioner has been notified as a Reserve Forest under Section 4 of the Tamil Nadu Forest Act, 1882, in G. O. Ms. No. 246. Forest and Fisheries Department, dated 23-3-1978, to constitute the reserve forest. Similarly, it is also not disputed that the petitioner has provided quarters for about 2500 workers working in their estate, as required under Section 15 of the Plantation Labour Act, 1951 and have also provided basic amenities like hospitals etc.
5. The Wild Life Protection Act, 1972 came into effect in the State of Tamil Nadu from 1-1-1974. By proceedings dated 4-1-1991, which is impugned in W.P. No. 4916 of 1991, the petitioner was directed not to use the road inside the sanctuary, during night time, viz. from 6 p.m. to 6 a.m., subject to the permission of the Forest Range Officer at Ambasamudaram, who shall exercise his discretion in exceptional 9ase of emergency. Similarly when the petitioner sought for permission, by letter dated 10-10-1990 to ply about 86 vehicles inside the sanctuary area, the Deputy Director. Mundanthurai Kalakadu Sanctuary, by his proceedings dated 7-2-1991, which is impugned in W.P. No. 5027 of 1991, gave permission to ply only 24 vehicles, subject to the following conditions, viz.
(i) The vehicle is liable to be examined at any time within the Forest limit by the Forest officials;
(ii) The vehicle should ply only between 6 a.m. to 6 p.m.;
(iii) They should not commit or connive in any Forest and Wildlife offences;
(iv) They should abide by the Rules and Regulations laid down in the Tamil Nadu Forest Act. 1882 and Wildlife Protection Act, 1972;
(v) The permit is liable to be cancelled by the Deputy Director at any time at his discretion without assigning any reasons. The permit holder shall not be entitled to any compensation for such cancellation;
(vi) Every time the vehicle enter into the sanctuary area, the date and time should be got noted in the permit book;
(vii) Number plate of the vehicle should be legible; and
(viii) This permit is valid up to 31 -3-1991. After this period this permit should be got renewed.
6. Aggrieved by the proceedings dated 4-1-1991 and condition Nos. (ii) and (v) in the proceedings dated 7-2-1991, the petitioner has filed the above writ petitions.
7. Mr. Sanjay Mohan, learned counsel for the petitioner contends that the conditions imposed in the impugned proceedings are arbitrary, unreasonable and violative of the rights conferred on the petitioner under Section 27 of the Wild Life (Protection) Act, 1972. which reads as follows :
27. Restriction on entry in sanctuary.--(1) No person other than,--
(a) a public servant on duty;
(b) a person who has been permitted by the Chief Wild Life Warden or the authorised officer to reside within the limits of the sanctuary;
(c) a person who has any right over immovable property within the limits of the sanctuary;
(d) a person passing through the sanctuary along a public highway; and
(e) the dependants of the person referred to in Clause (a), Clause (b) or Clause (c), shall enter or reside in the sanctuary, except under and in accordance with the conditions of a permit granted under Section 28. (2) Every person shall, so long as he resides in the sanctuary, be bound--
(a) to prevent the commission, in the sanctuary, of an offence against this Act;
(b) where there is reason to believe that any such offence against this Act has been committed in such sanctuary, to help in discovering and arresting the offender;
(c) to report the death of any wild animal and to safeguard its remains until the Chief Wild Life Warden or the authorised officer takes charge thereof;
(d) to extinguish any fire in such sanctuary of which he has knowledge or information and to prevent from spreading, by any lawful means in his power, any fire within the vicinity of such sanctuary of which he has knowledge or information; and
(e) to assist any Forest Officer, Chief Wild Life Warden, Wild Life Warden or Police Officer demanding his aid for preventing the commission of any offence against this Act or in the investigation of any such offence. (3) No person shall, with intent to cause damage to any boundary-mark of a sanctuary or to cause wrongful gain as defined in the Indian Penal Code, 1860 (45 of 1860), alter, destroy, move or deface such boundary-mark. (4) No person shall tease or molest any wild animal or litter the grounds of sanctuary.
8. Section 28 of the Act reads as follows :
28. Grant of permit.--(1) The Chief Wild Life Warden may, on application, grant to any person a permit to enter or reside in a sanctuary for all or any of the following purposes, namely:--
(a) investigation or study of wild life and purposes ancillary or incidental thereto;
(b) photography:
(c) scientific research;
(d) tourism;
(e) transaction of lawful business with any person residing in the sanctuary.
(2) A permit to enter or reside in a sanctuary shall be issued subject to such conditions and on payment of such fee as may be prescribed.
9. According to Mr. Sanjay Mohan, the petitioner, having right over the immovable properties within the limits of sanctuary, is entitled to enter or reside in the sanctuary. But, only in the case of persons who are not governed under Clauses (a), (b), (c), (d) and (e) of Section 27(1), are required to get permission under Section 28 of the Act. In other words, since the petitioner is having right over the immovable properties within the limits of sanctuary, there is no need for the petitioner to seek permission under Section 28 of the Act.
10. Alternatively, Mr. Sanjay Mohan contends that granting permission only for 24 vehicles as against 84 vehicles required, is unreasonable and arbitrary. Similarly, restriction that the petitioner should not ply the vehicle between 6 p.m. to 6 a.m. is also innocuous: the conditions that the impugned permit is liable to be cancelled by the Deputy Director, at any time, at his discretion, without assigning any reason and that the permit holder shall not be entitled to any compensation for such cancellation are unreasonable and arbitrary. Similarly, the condition that the petitioner is permitted to use the road inside the sanctuary or during 6 p.m. to 6 a.m. only with the permission of the Forest Range Officer. Ambasamudaram, who can exercise his discretion in exceptional case of emergency alone, is unreasonable and unworkable, in view of the admitted fact of the case that the estate is located in the midst of the forest and the office of the Forest Range Officer is located at Ambasamudaram, about 30 kilometers away from the residence of the petitioner.
11. Per contra, Mr. Titus Jesudoss, learned Addl. Government Pleader contends that in view of the admitted facts that the petitioner's estate is located in midst of Mudanthurai Kalakadu Wild Life Sanctuary, the respondents have the power to control and maintain the sanctuary and for that purpose, they are authorised to take appropriate steps to ensure security of the wild animals in the sanctuary and for preservation of the sanctuary and wild animals therein and to take appropriate measures in the interest of the wild life and are empowered to regulate, control or prohibit, keeping the interest of the wild life, grazing of live stock. It is therefore contended that the impugned proceedings and the restrictions on the entry mentioned therein, are intended to achieve the object of the Act for the above purpose. He further contends that the impugned permit itself is valid till 31-3-1991 and therefore, nothing survives in the above writ petition, as on date, even though the petitioner is aggrieved by the conditions prescribed therein.
12. The learned Addl. Government Pleader fairly concedes that condition No. (v), impugned in W.P. No. 5027 of 1991, enabling the Deputy Director to cancel the permit at any time, at his discretion, without assigning any reason and that the permit holder shall not be entitled to any compensation for such concession, does not stand to the test of reason. Therefore, contends that the Deputy Director would exercise his discretion to cancel the permit at any time, only if any of the conditions are violated or the same is required for Just and valid reason, of course, after giving notice to the petitioner.
13. The learned Addl. Government Pleader explains that the condition that the petitioner is not entitled to ply their vehicles between 6 p.m. to 6 a.m. is only intended to ensure security of the wild animals, to preserve the sanctuary and wild animals and in the interest of wild life, their movements and other habits. Such a restriction, therefore, cannot be complained merely on the ground that the petitioner has a right to reside in the sanctuary area, which itself is subject to the provisions of Wild Life (Protection) Act, 1972. It is further contended that impossibility to get permission of Deputy Director, Ambasamudaram, to ply vehicles between 6 p.m. to 6 a.m. during emergency, is purely Imaginary and surmise and in any event, the same is academic as the petitioner has, admittedly, possess medical aid and are running a hospital in the estate itself to meet the medical emergency.
14. I have given careful consideration to the submissions of both sides.
15. The Wild Life (Protection) Act, which came into force in the State of Tamil Nadu from 1-1-1974, was enacted as a result of a compelling need to restore the catastrophic ecological imbalances introduced by the depredations inflicted on nature by human beings. The matter of preservation of the wild life and the environment have become a matter of necessity to maintain the ecological balance, keeping in view the habit of grazing and movement of the live stock, the wild life in particular, and to provide adequate protection for the wild birds and animals. When an Act was thus enacted and brought into force for vowed and prudent object to provide lor the protection of wild animals, birds and plants and of matters connected therein or ancillary or incidental thereto, any action or steps taken by the authorities concerned to ensure the security of the wild animals in the sanctuary, keeping the interest of the wild life as well as their habit like grazing movements into consideration, such step or measures taken by the authorities should be tested only in the light of the object sought to be achieved under the Act. Therefore, once a particular area is declared and notified as a wild life sanctuary, as admitted in the instant case, any private right of a person should be subjected to the object of the Act.
16. In the instant case, since the petitioner estate is located in the midst of Mudanthurai Kalakadu Sanctuary, even though the petitioner has any private right over the estate which is within the limits of the sanctuary, such private right of the petitioner, in my considered opinion, is subject to the permission by the Chief Wild Life Warden or the officer authorised by him for the above purpose. Therefore, Sections 27 and 28 of the Act, in my considered opinion, have to be read together; and in which case, even if the petitioner has got a right to reside in the estate, the same is permissible only subject to the permission of the competent authorities, as required under the Act, as the estate is located within the sanctuary. Consequently, the right to use the roads in the sanctuary area is subject to the conditions that could be imposed by the Chief Wild Life Warden or the officers authorised by him, as they are empowered to impose such reasonable restrictions and conditions in the matter of entry and use of roads in the sanctuary area, taking into consideration the security of the wild animal in the sanctuary, preservation of the sanctuary and wild animals therein and keeping the interest of wild life and their habits, such as grazing and movement into consideration. In which case, the restriction imposed that they should ply their vehicles between 6 a.m. to 6 p.m. in order to achieve the above object, cannot be complained as arbitrary, unreasonable or Innocuous.
17. The contention of the learned counsel for the petitioner that even during the emergency, they may not be able to move between 6 p.m. to 6 a.m. is nothing but surmise and this Court, while exercising power under Article 226 of the Constitution of India, cannot go into such grievance of the petitioner which are based on imaginary, surmise and hypothetical situation and in any event, the petitioner them selves have averred in their affidavit that they have the facility like hospitals in the estate itself So meet any such medical emergency. Therefore, in my considered opinion, the apprehension of the petitioner in this regard is unwarranted and unjustified. With regard to the contention that, the inconvenience complained by the learned counsel for the petitioner that the petitioner could get permission from the Deputy Director at Ambasamudaram, even in the case of emergency, and therefore the said condition is unworkable, it may not be proper for this Court to visualise or anticipates any such emergency; nor it may be fair for the respondents to reject such contingency in outright: nor to expect the petitioner to seek permission from the Deputy Director at Ambasamudaram during such emergency as the emergency itself is something that could not be anticipated at any definite time. Therefore, the respondents arc required to reconsider the condition and to impose a reasonable and workable restriction in this regard to enable the petitioner to get permission for movement in case of emergency from the officers who are having their offices in the sanctuary itself, instead of requiring the permission of the Deputy Director at Ambasamudram, which is 30 km away from the place of the residence of the petitioner. Similarly, restricting the number of vehicles also cannot be complained as arbitrary and unreasonable, if the authorities concerned, under the Act, who are expected to ensure security of wild life and preservation of sanctuary, is of opinion that granting permission for 84 vehicles, as claimed by the petitioner, may harm the wild life, this Court cannot, by exercising power under Article 226 of the Constitution of India, interfere with such expert opinion of the authorities, otherwise the vowed object of the Act could not be achieved.
18. Even though, as rightly pointed out, the impugned permit has already expired on 31-3-1991 and the above writ petitions have become infructuous practically, still I am obliged to decide the issues raised in the above writ petitions, so that the authorities, while granting permission in future, shall be benefited by the order of this Court as the grant of such permission and the condition imposed therein, as Impugned in the above writ petition, are matters of continuous process under the provisions of the Act.
19. In the result, writ petitions are dismissed with the above observations. Consequently, WMP Nos. 7739. 7740 and 7546 of 1991 are also dismissed. No costs.