Karnataka High Court
Smt. Reshma Naveen vs The State Of Karnataka on 10 November, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.14239/2018 (GM-FOR)
BETWEEN:
SMT. RESHMA NAVEEN,
AGED 35 YEARS,
W/O. SRI NAVEEN,
R/AT #2404, 8TH MAIN ROAD,
2ND PHASE, BANASHANKARI,
BENGALURU - 560 070. ... PETITIONER
(BY SRI KIRAN V. RON, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY UNDER SECRETARY TO GOVERNMENT,
FOREST, ECOLOGY AND ENVIRONMENT DEPARTMENT,
KARNATAKA GOVERNMENT SECRETARIAT,
ROOM NO.431, 4TH FLOOR,
GATE NO.2, M.S. BUILDING,
BANGALORE - 560 001.
2. THE PRINCIPAL CHIEF CONSERVATOR OF
FORESTS (WILDLIFE) AND CHIEF
WILDLIFE WARDEN, KARNATAKA,
ARANYA BHAVAN,
2ND FLOOR, MALLESHWARAM,
BENGALURU - 560 003.
3. THE CHIEF CONSERVATOR OF FORESTS,
SULTAN SHARIFF CIRCLE,
SATHYAMANGALA ROAD,
CHAMARAJANAGAR - 571 313. ... RESPONDENTS
(BY SRI ARUN K.S., HCGP FOR R-1 TO R-3)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
OFFICIAL MEMORANDUM DATED 31.07.2017 ISSUED BY THE R-
1 (ANNEXURE-A); AND QUASH THE ORDER DATED 16.09.2015
PASSED BY THE R-2 HEREIN (ANNEXURE-C).
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 28/10/2022 FOR ORDERS AND COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
The petitioner under the caption writ petition is seeking to quash the office memorandum dated 31/07/2017 bearing No.PCCF(WL)/B2/CR-33/2017-18 issued by 2nd respondent, whereby the permission granted by the 2nd respondent vide order dated 29/07/2017 bearing No.PCCF(WL)/B2/CR-33/2017-18 to run the resort under the name and style of M/s.Sam Nature & Health Camp situated in Sy.Nos.4/7, 4/8 and 4/1 at Suligere Village, Sathnoor Hobli, Kanakapura Taluk, Ramanagar District has been withdrawn and also seeking to quash the order dated 16/09/2015 bearing No.C1/RESORT/GL-1933/2012-13 passed by 3rd respondent vide Annexure - C, whereby -3- permission sought to operate the said camp was rejected.
2. The facts leading to filing of this petition are as under:
The petitioner is the absolute owner in possession and enjoyment of the revenue lands bearing Sy.No.4/1 (1 acre 19 guntas), Sy.No.4/7 (20 guntas) and Sy.No.4/8 (24 guntas), totally measuring 2 acres 32 guntas, situated at Suligere Village, Sathnoor Hobli, Kanakapura Taluk, Ramanagar District, (hereinafter referred to as "the petition land"
for the sake of convenience), which were purchased vide registered sale deed dated 31/05/2010 and two registered sale deeds dated 18/01/2010 and on the basis of the sale deed, the name of the petitioner has been mutated in the revenue records. The petitioner, in order to set up the nature and health camp in the petition land, intimated the Forest Department and -4- sought for permission from the Forest Department. The Range Forest Officer, Kanakapura Wild Life Range, Kanakapura, intimated the petitioner vide letter dated 05/05/2012 that necessary permission should be taken through proper channel. In light of the same, the petitioner applied and obtained permission for conversion of land from agricultural to non-agricultural purpose and also obtained building plan sanction for construction of the Eco Tourism Nature Camp from the Kadahalli Gram Panchayath commenced construction of the said building as per the sanctioned plan. The petitioner also obtained labour licence and food licence from the concerned authorities in respect of the said camp. This being so, the land of the petitioner being abutting the Cauvery Wild Life Sanctuary and the Government of Karnataka issued a Notification under Section 18 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as "the Wild Life Act" for short), bearing No.AHFF75 FWL 84 -5- dated 14/01/1987 and the same was followed by a Final Notification under Section 26A(b) of the Wild Life Act with a Memorandum No.FEE 166 FW/94 dated 03/08/1994 declaring an extent of 526.95 sq.kms. as Cauvery Wild Life Sanctuary and thereafter, the Government of Karnataka considered it necessary to alter the limits and boundaries of the said Wildlife Sanctuary and a Notification bearing No.FEE 302 FWL 2011(IV) dated 27/12/2011 proposing to add certain reserved forest area to the Karnataka Wild Life Sanctuary and in the said Notification under Chapter IV of the Wild Life Act expressly excluded revenue villages, patta lands, revenue lands, gomal lands and it is stated that the lands of the petitioner are revenue lands and strictly governed and regulated by the provisions of the Karnataka Land Revenue Act, 1964 ("KLR Act" for short), were expressly excluded from area of Cauvery Wild Life Sanctuary.-6-
3. It is stated that, the petitioner commenced the operation of M/s.Sam Nature & Health Camp in the month of August, 2013 and the petitioner sought for no objection certificate ("NOC") from the Forest Department to run the Eco Resort in the said lands. It is submitted that the NOC from the Forest Department is not mandated under any law as the said lands being revenue lands and also would fall outside the forest/sanctuary. But to the shock and surprise, the petitioner received a Notice dated 27/05/2014 (Annexure - K) issued by 3rd respondent/Chief Conservator of Forest, stating that the village in which the resort is situated is an enclosure village inside the Cauvery Wildlife Sanctuary and that the petitioner cannot run the resort since it is falling in the elephant corridor and stated that the said notice was issued based on report filed by the Deputy Conservator of Forest, Chamarajanagara to 2nd respondent. Aggrieved by the notice issued by the Deputy -7- Conservator of Forest, Chamarajanagara, the petitioner approached this Court by filing W.P.No.22122/2014 and this Court disposed of the petition on 12/06/2015 reserving liberty to the petitioner to make a representation to the Chief Conservator of Forests/3rd respondent, who shall, on affording an opportunity of hearing pass order within three months from the date of representation. Accordingly, in furtherance of the said liberty granted, the petitioner submitted a representation on 17/07/2015 to the Chief Conservator of Forests/3rd respondent, who passed an order dated 16/09/2015 rejecting the said representation and thereby, the permission to run the resort was also rejected. Aggrieved by the said order, the petitioner approached the Principal Chief Conservator of Forests (Wildlife) and Chief Wildlife Warden, Karnataka/2nd respondent on 16/10/2015 by filing an appeal and the same is pending consideration.
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4. It is stated that petitioner learnt that a Committee had been constituted to frame guidelines for private resorts operating to those located close to protected areas. Accordingly, the said Committee, after detailed deliberation, submitted a report which was accepted by the State Government and accordingly on 10/07/2017, a Government Order was passed bearing No. FEE 95 FWL 2016 (Annexure-R), laying down the guidelines for private resorts/institutions/entities operating in the revenue enclosures within the wildlife sanctuaries and National parks as well as those located close to protected areas. In light of the said guidelines, the petitioner filed a representation dated 28/07/2017 to the Principal Chief Conservator of Forests (Wildlife) who is also Chief of Wild Life Warden, Karnataka specifically mentioning that the new guidelines of eco-sensitive tourism expressly permitted in the revenue enclosures -9- within the Wildlife Sanctuary and necessary permission may be granted and the Chief Conservator of Forest (Wildlife) after considering the petitioner's letter and vide Government Order dated 10/07/2017 permitted the petitioner to run the resort vide order dated 29/07/2017, strictly, as per the guidelines issued by the Government in the order dated 10/07/2017. This being so, it is stated that the petitioner was shocked to receive the Official Memorandum issued by 2nd respondent on 31/07/2017 (Annexure-A), within two days of the grant of permission, without any notice to the petitioner and without giving any opportunity, intimating the petitioner that the earlier permission given on 29/07/2017 (Annexure-B) is withdrawn on the ground that the petitioner did not disclose the order dated 16/09/2015 (Annexure-C) issued by the Chief Conservator of Forests, Chamarajanagar Circle, rejecting the permission given to run the said resort.
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Aggrieved by the withdrawal of the permission granted earlier on 29/07/2017, the petitioner has approached this Court.
5. Per contra, the State filed their objections stating that the petitioner has misguided the approving authority without providing complete information and has got permission to run the nature camp vide order dated 29/07/2017 and 2nd respondent having noticed the same, passed an order dated 31/07/2017 canceling the earlier order vide Annexure - A by withdrawing the permission granted by the Principal Chief Conservator of Forests (Wildlife). It is stated that the application filed by the petitioner seeking for issuance of NOC to run the nature camp has been rejected by the Range Forest Officer, Kanakapura Range vide letter dated 05/05/2012 (Annexure-E) informing the petitioner that the land in question is adjoining to the
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Kanakapura Wildlife Sanctuary boundary and without the permission from the competent authority, the said camp cannot run and necessary permission needs to be taken from the competent authority.
6. It is stated that the petitioner's land may be a revenue land but is abutting to the wildlife sanctuary and the petitioner cannot carry out the commercial activity as it would affect the flora and fauna of the wildlife sanctuary and would also affect the development of wildlife and its environment. It is also stated that the petitioner has not commenced operations of M/s.Sam Nature & Health Camp in 2013 and no authority has accorded any permission to the petitioner to start and operate the said nature camp. It is further stated that the earlier permission sought by the petitioner to start the nature camp has been rejected and accordingly, the writ petition was filed before this Court in W.P.No.22122/2014 and this
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Court vide order dated 12/06/2016 directed the petitioner to submit a representation to the Chief Conservator of Forests and the said authority is directed to consider the representation of the petitioner and the Chief Conservator of Forests has passed a detailed order dated 16/09/2015 rejecting the petitioner's request to operate the said nature camp in its property and in the interregnum period the Ministry of Environment, Forests and Climate change has issued the notification dated 22/08/2017 (Annexure-S to the writ petition) declaring the Cauvery Wildlife Sanctuary area and surrounding area as Eco Sensitive Zone (ESZ) under Section 3 of the Environment (Protection) Act, 1986, whereby notifies an area to an extent varying from 1 k.m. to 14.5 k.m. around the boundary of the Cauvery Wildlife Sanctuary as the Cauvery Wildlife Sanctuary is Eco sensitive zone (ESZ) and prohibited certain commercial activities. It is stated that in view of the
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said notification declaring the surrounding area as ESZ, the State Government has no jurisdiction or competence to consider the petitioner's application to run the nature camp and the Central Government Wildlife Board is the authority to consider the petitioner's application and that the petitioner has not made Central Government a party to the present proceeding and on this ground alone the writ petition is liable to be rejected. Further, it is submitted that the petitioner has to make an application to the competent authority created by the ministry of Environment, Forests and Climate Change, Government of India and seek permission. In Sl.No.11 to the table appended to the Notification dated 22/08/2017, it is clearly shown that no new commercial hotels and resorts shall be permitted within 1 k.m. of the boundary of the protected area or up to the extent the ESZ whichever is nearer, accepted for temporary Director for Eco Tourism
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activities and that the petitioner's land falls within 1 k.m. of radius, hence no commercial activity can be permitted as per the Notification, within the said land and the respondent authorities have no jurisdiction whatsoever vide letter dated 29/07/2017 to accord permission to the petitioner to run the resort in M/s.Sam Nature & Health Camp. However, on noticing that the permission granted earlier was rejected, the earlier order was cancelled and a fresh order came to be passed. It is submitted that the Ministry of Environment and Forests Wildlife Division, New Delhi, has communicated the guidelines document for taking up non-forestry activities in wildlife habitats vide communication dated 19/12/2012 to all the Chief Secretaries of the State Government including the State of Karnataka. According to the State, the copy of the guidelines issued by the Ministry of Environment and Forests Wildlife Division dated 19/12/2012 has been issued in
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terms of the decision of the Apex Court in W.P.No.460/2004 dated 04/12/2006 (Annexure - R2) wherein it is held that any project within the ESZ around a wildlife sanctuary or national park or in the absence of delineation of such a zone, within a distance of 10 k.ms. from its boundaries, the user agency/project proponent is required to obtain recommendation of the standing committee of National Board for Wildlife as per 3.5.1 of Ministry of Environment and Forests Wildlife Division guidance document for taking up non-forestry activities in wildlife habitats. The State stated specifically the order dated 31/07/2017 is in accordance with law as the earlier order passed by the Sub-ordinate Chief Conservator of Forests was not brought to the notice of the concerned authorities. On this ground, the State sought dismiss the writ petition.
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7. Heard Sri Kiran V.Ron, learned counsel for the petitioner and Sri Arun K.S., learned High Court Government Pleader for the respondents.
8. The learned counsel for the petitioner in addition to the various other contentions urged in the writ petition would mainly contend that the permission accorded to the petitioner to run the Eco Tourism Nature Camp vide order dated 29/07/2017 has been withdrawn without affording an opportunity of hearing to the petitioner and even without notice to the petitioner and within a period of two days, whereby, the permission granted by respondent, two days earlier based on the Government dated 10/07/2017 has been withdrawn and the said order passed by the authority/2nd respondent is vitiated in law. According to the learned counsel, the Government Order dated 10/07/2017 expressly stipulates that the existing and recognized eco tourism activities are permitted to
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operate under the provisions of the Wild Life Act subject to the restrictions placed by the Government Order and also stated that subsequent to final ESZ Notification dated 22/08/2017 (Annexure-S) expressly recognized the existing eco tourism can run and is a regulated activity as per Table B of the Notification. According to the learned counsel, 2nd and 3rd respondents have not considered that the petitioner has not violated any of the conditions or regulations stated in the Notification while running the said eco tourism resort. According to the learned counsel, the withdrawal of the permission by 2nd respondent on the ground that the petitioner in the petition has not stated about the order dated 16/09/2015 rejecting the permission by 3rd respondent and as such, has misled the authorities by filing such a representation is of less consequence as the rejection order dated 16/09/2015 was prior to the Government Order dated 10/07/2017 and in light of the final notification dated 22/08/2017,
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which expressly recognize eco tourism activities and thus the permission sought is on the basis of the Government Order dated 10/07/2017. It is submitted that even assuming that there is rejection order dated 16/09/2015 as at that relevant point of time, the Government Order dated 10/07/2017 had not come into light and in light of the Government Order dated 10/07/2017 providing eco tourism activities in eco sensitive area, the petitioner fall expressly in the said notification. It is submitted that the Office Memorandum dated 31/07/2017 issued by the respondent is not in accordance with law and is contrary to the objectives of principles of natural justice in not affording an opportunity to submit their contention before the authorities. In light of this, learned counsel would sought to allow the writ petition.
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9. On the other hand, learned High Court Government Pleader substantiates and justifies the order passed by the Principal Chief Conservator of Forests dated 31/07/2017 specifically contending that the petitioner has misrepresented the authorities by submitting the representation dated 28/07/2017 without bringing to the notice of the authority regarding the detailed and speaking order dated 16/09/2015 rejecting the permission sought by the petitioner to run the M/s.Sam Nature & Health Camp in Soligere Village in the petitioner's property. According to the learned counsel, the order passed by 2nd respondent on 29/07/2017 wherein permission was accorded to the petitioner to run the resort in the name and style of M/s.Sam Nature & Health Camp was without considering the order passed by the Chief Conservator of Forests dated 16/09/2015 which was not within the knowledge of 3rd respondent and in light of the order and on coming to know about the
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order dated 16/09/2015, the granting of permission was withdrawn vide order dated 31/07/2017. According to the learned counsel, the order passed is justifiable and the petitioner has made no ground to interfere with the said order and sought to dismiss the petition.
10. This court has carefully considered the rival contention urged by the learned counsel for the parties and perused the material on record including the writ petition papers.
11. The undisputed facts of the case are that the petitioner's land falls within the area of Eco Sensitive Zone (ESZ) i.e., Sy.Nos.4/1, 4/7 and 4/8 situated at Soligere Village, Sathnoor Hobli, Kanakapura Taluk, Ramanagar District and the petitioner is the owner in possession of the petition land on obtaining requisite permission from the authorities the petitioner intended to commence
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operation of M/s.Sam Nature & Health Camp and in light of this sought permission from the authorities to operate in the said area. The representation submitted by the petitioner on 17/07/2015 to the Chief Conservator of Forests was rejected by its order dated 16/09/2015. Being aggrieved by the said order, the petitioner has preferred an appeal before the Principal Chief Conservator of Forests/2nd respondent on 16/10/2015 and the same is pending consideration. In the interregnum period, a Committee had been constituted to frame guidelines for private resorts operating close to the protected areas. Accordingly, Committee report was submitted and after detailed deliberation and accordingly, the State Government Order dated 10/07/2017 had passed the order vide Annexure - R which reads as under:
"Preamble:-
In the letter read above, the PCCF(WL) has proposed that a Committee has been
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formed under the Chairmanship of the Addl. Principal Chief conservator of Forests (Project Tiger) Mysore for finalisation of guidelines for private resorts/institutions/entities operating in the revenue enclosures as well as those located close to Protected Areas. In response to this, the Chairman of the Committee after detailed deliberation has submitted a report.
The PCCF(WL) requested to review the report and issue necessary order.
The proposal has been scrutinised and hence this order.
Government Order No. FEE 95 FWL 2016, Bangalore, dated: 10.07.2017 In view of the reasons mentioned in the preamble, Guidelines for private resorts/institutions/entities operating in the revenue enclosures within Wildlife Sanctuaries and National Parks as well as those located close to Protected Areas is furnished as per Annexure. This Order will come in to force with immediate effect and until further orders."
12. The Government Order dated 10/07/2017 specifically gives reasons as to why this Government
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notification has been enacted and the guidelines for private resorts institutions, entities operating in the revenue enclosures within Wildlife Sanctuaries and National parks as well as those closely located to protected area is furnished as per the Annexure. The said order permitting the activities to be followed in the protected area reads as under:
"The activities are as follows:
1. There should not be any change in the land use pattern for over next 50 years inside the Protected Areas as stipulated by the Hon'ble Supreme Court in the writ petition No.337/95.
2. Only the existing and recognized resorts will be permitted to operate within the Eco Sensitive Zones and enclosures of the Protected Areas.
3. Overcrowding, misuse of natural resources, construction of buildings and infrastructure produces negative impact on the Environment and Wildlife Conservation by exceeding its carrying capacity and also
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creates water scarcity. Increased vehicular movement in and around Pas interfere with the animal activities such as search for food, water and shelter. The case studies in Africa and other Countries have revealed that increased tourism will affect the animal behaviour and the very survival of certain species. Under the circumstances the rights and privileges settled at the time of constituting Reserve forests/ State forests/Minor forests/ any other type of forests/ Sanctuaries/ National Parks and Tiger Reserves will remain unaltered in these areas and their enclosures. The activities which may be allowed in a limited way are as follows:
a. Trekking or nature walks through designated paths. b. Accommodation for temporary
occupation of tourists related to Eco-friendly Tourisms activities may be permitted with the permission from Appropriate Authority (respective eco-sensitive zone committees) without creating any new infrastructure. c. Certified guides by the Eco Tourism Board and preferably from the local area.
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d. Bird watching and study of flora and fauna. However collection of specimens shall be prohibited, unless permitted by the Chief Wildlife Warden.
e. In respect of the carrying capacity of any particular Protected Area for tourism in its enclosures is regulated under G.O. No.FEE 38 FWL 2013, dated 11-06-2013.
f. Liquid waste and solid wastes disposal shall be as approved by the Competent. Authority under the law governing the subject. No untreated used water shall be allowed in to the rivers, streams and other water bodies. g. Movement of vehicles in the enclosures and around the Pas are regulated as per the existing rules and norms.
h. Eco-Tourism activities in Eco-Sensitive Zone (ESZ) of protected areas will be in accordance with ESZ notification of respective protected area and as decided by the ESZ management committee.
i. Eco-Tourism in and around Tiger Reserves will be in accordance with National
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Tiger Conservation Authority (NTCA) guidelines or directives.
Do's and Don'ts for the tourists/visitors entering the Protected Areas (PA):
1. Abide by the PA rule.
2. Don't enter the PA with fire arms/explosives.
3. Obtain Permission before entering the PA.
4. Don't carry transistor and tape recorder into the PA.
5. Obey the park guide.
6. Don't blow horn.
7. Speed limit to be fixed for vehicles moving inside the PA, recommended maximum speed is 20 km/h.
8. Don't litter with cans, bottles, etc.
9. Always carry drinking water.
10. Don't get down, unless told by the guide.
11. Don't remove any forest property.
12. Don't chase or tease animals.
13. Smoking is prohibited.
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14. Animals have the first right of way.
15. Consumption of alcohol inside Park/PA is prohibited.
16. Use of polythene inside the park/PA is strictly prohibited.
17. No pets are allowed inside the park.
18. Do not get down from your vehicle except at designated places.
19. Overtaking is strictly prohibited.
20. Maintain minimum distance of 30 metres while viewing wildlife.
21. Un-registered vehicles carrying tourists are not allowed.
Do's and Don'ts for the Home Stays/ Resorts/ Hotel/ Institutions located in and around the Pas and Eco sensitive zone.
1. Environmental friendly atmosphere should be created.
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2. Use of Solar Energy and LPG to be encouraged and to be made mandatory in a time frame.
3. Establishment of units for recycling of Solid Waste (ex: Kitchen Waste)/ Liquid Waste to be encouraged and to be made mandatory in a time frame.
4. Ban on use of loud music.
5. Ban on use of Plastic and visitors need to be educated on the same. Plastic brought by the visitors should be carried back by them.
6. Bonfire/ Camp fire prohibited.
7. Certified Naturalist / Guide should compulsorily accompany the visitors during a Safari/Trekking.
8. Use of LED bulbs to be encouraged and to be made mandatory in a time frame.
9. Literature about local flora and fauna including bird check lists to be provided."
13. Subsequently, on 22/08/2017, the Ministry of Environment, Forests and Climate change
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notification - Annexure-S had issued the table regulating activities of commercial establishment of hotels and resorts and at B column No.11 and column No.28 eco tourism was regulated under the applicable laws and the monitoring committee informed under the gazette of India, Ministry of Environment, Forests and Climate Change. It is relevant to note that a draft notification under Section 3 of the Environment (Protection) Act, 1986 was published in the Government of India gazette on 04/03/2016 inviting objections and suggestions in declaring ESZ abutting sanctuary in question and the said draft notification was followed by the Final Notification dated 22/08/2017 the notification has come into effect and the land of the petitioner comes within the radius of 1 k.m. of the ESZ which is situated in Soligere Village, Malavalli Taluk, Mandya and the list of enclosures, the petition land having been located within Cauvery Wild Life Sanctuary is declared as an ESZ and the
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enclosures notified in the said notification. Since the petitioner's land is declared as ESZ under the Environment (Protection) Act, 1986, the activities of the eco tourism resort which is run by the petitioner are regulated by the notification at para No.4 table column 11 and 28 permitting eco tourism regulated under the applicable laws. However, since petitioner's land is abutting to the wild sanctuary activity area, it is the contention of the State that the petitioner cannot carry on commercial activity. This aspect is not disputed by the petitioner, the specific contention of the petitioner is that the petitioner is carrying on the eco tourism activities and not a commercial activities and the representation submitted by the petitioner to the Principal Chief Conservator of Forests is to the effect that the new guidelines issued to the private resorts, institutions, entities operating in the revenue enclosure within wildlife sanctuaries and national parks vide Government Order dated
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10/07/2017 should be considered and the petitioner should be permitted to operate the resort and that they will not deviate any rules and regulations given in view of the Government Order dated 10/07/2017.
14. This being so, 2nd respondent/Principal Chief Conservator of Forests vide office memorandum dated 29/07/2017 granted permission to the petitioner to run the resort in the name M/s. Sam Nature & Health Camp situated in Sy.Nos.4/7, 4/8 and 4/1 at Suligere Village, Sathnoor Hobli, Kanakapura Taluk, Ramanagar District as per the guidelines issued by the Government vide order dated 10/07/2017. However, surprisingly, for the reasons best known to the 2nd respondent office memorandum came to be issued immediately within two days on 31/07/2017 recalling or withdrawing the permission given vide letter bearing No.PCCF(WL)/B2/CR-33/2017-18 issued by 2nd respondent on the sole ground that the
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petitioner has not stated in its representation about the order rejecting the permission to the petitioner to run M/s. Sam Nature & Health Camp dated 16/09/2015 by 3rd respondent.
15. This order of 2nd respondent is without hearing the petitioner and without affording an opportunity to the petitioner contrary to the objects underlining the principles of natural justice. The rules of natural justice are not embodied rules. The extent of the application depends upon the particular statutory frame work where under jurisdiction has been confirmed on the administrative authority. While passing a order or giving a decision by an administrative authority exercising quasi judicial functions achieves this object by excluding the chances of arbitrariness and ensuring a degree of fairness in the process of decision making. Thus, no decision shall be given against a party without
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affording him an opportunity of hearing. Keeping in view the expanding horizon of the principles of natural justice, it is a must that the requirement affording an opportunity of hearing and recording reasons to be regarded as one of the principles of natural justice which governs the exercise of power of administrative, which the impugned office memorandum lapse. The respondents does not dispute that the petitioner was not heard before issuing the official memorandum dated 31/07/2019.
16. On perusal of the order and material on record, this Court is of the opinion that the order needs to be quashed on the sole ground that no valid reasons are forthcoming for recalling the order dated 29/07/2019 permitting the petitioner to run the resort and therefore, there can be no doubt that the authorities have to hear, record the reason and communicate for their compliance of natural justice
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and even assuming the absence of statutory provisions requiring hearing and recording of reason in support of the orders and authorities must pass a speaking orders so as they can stand the test of scrutiny. The petitioner has also challenged the order dated 16/09/2015 bearing No.C1/RESORT/GL- 1933/2012-13 which is the subject matter of appeal pending before the 2nd respondent. Therefore, this court is of the opinion that direction for early disposal of the appeal would suffice.
17. In light of the reasons stated supra, this Court pass the following:
ORDER
(i) The writ petition is allowed in part.
(ii) The office memorandum dated 31/07/2017 is hereby quashed, the 2nd respondent to reconsider the matter afresh along with the pending appeal challenging the order dated
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16/09/2015 bearing No.C1/RESORT/GL- 1933/2012-13 after affording opportunity of hearing to the petitioner in accordance with law within a period of four months from the date of receipt of this order.
(iii) The 2nd respondent shall pass order independently without being influenced by the observations.
(iv) All the contentions of the parties are kept open.
(v) Accordingly, writ petition stands disposed of.
No order as to costs.
SD/-
JUDGE S*