Ankit Utpalbhai Shukla vs Union Of India on 28 March, 2018

[Cites 5, Cited by 1]

Gujarat High Court

Ankit Utpalbhai Shukla vs Union Of India on 28 March, 2018

Author: R.Subhash Reddy

Bench: R.Subhash Reddy, Vipul M. Pancholi

       C/WPPIL/277/2016                                       CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                     R/WRIT PETITION (PIL) NO. 277 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY

and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

==========================================================

1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

==========================================================
                          ANKIT UTPALBHAI SHUKLA
                                   Versus
                              UNION OF INDIA
==========================================================
Appearance:
MR GM JOSHI(370) for the PETITIONER(s) No. 2, 4
PETITION WITHDRAWN/DISMISSED(73) for the PETITIONER(s) No. 1,3
MR KM ANTANI, AGP for the RESPONDENT(s) No. 2,3,5,6
MR KAMAL TRIVEDI, SENIOR COUNSEL WITH MR DG SHUKLA(1998) for
the RESPONDENT(s) No. 4
MR. PARTH H BHATT(6381) for the RESPONDENT(s) No. 1
==========================================================

    CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
           and
           HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI




                                    Page 1 of 40
      C/WPPIL/277/2016                            CAV JUDGMENT



                             Date : 28/03/2018

                              CAV JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)

1. This petition is filed by way of Public Interest Litigation by the petitioners with the prayers, which read as under:

"(a) This Honourable Court may be pleased to issue an appropriate writ, direction or order, declaring the action of the Collector in allotting land admeasuring Hec.448684 out of survey no.316 and 280 of village Khadia, Taluka&Dist: Junagadh to BhaktKaviNarsinh Mehta University for construction of the buildings to be contrary to the provisions of the Environment Protection Act, 1986, Environment Protection Rules, 1986, Wildlife Protection Act, 1972 as well as in violation of the notification dated 31.5.2012 and be further pleased to hold that the action of the respondent university in inviting tenders for deforestation and cutting of trees is illegal and contrary to law;

(b) During the pendency, hearing and final Page 2 of 40 C/WPPIL/277/2016 CAV JUDGMENT disposal of this petition, be pleased to restrain the respondent university from proceeding ahead or acting on the tender notice inviting tenders for deforestation and cutting of trees and further restrain the university or the bidder from cutting any trees or plants from the land bearing survey no.280 and 316, part of village Khadia, Taluka & District: Junagadh;

2. Initially, the petition was filed by three petitioners. However, learned counsel, Mr. G.M.Joshi sought permission for withdrawal of the petition qua petitioner Nos.1 and 3. This Court, vide order dated 23.08.2017, dismissed the petition as withdrawn so far as petitioner Nos.1 an 3 are concerned.

3. Civil Application in Civil Application No.14828 of 2017 was filed by the applicant Ms.Trupti Kantilal Vyas for being impleaded as Page 3 of 40 C/WPPIL/277/2016 CAV JUDGMENT party petitioner in Writ Petition (PIL) No.277 of 2016. This Court, vide separate order, permitted her to be impleaded as party petitioner No.4 in the Writ Petition.

4. In view of the impleadment of the applicant of Civil Application No.14828 of 2017 as a party petitioner No.4, this petition is considered only qua the petitioner Nos.2 and 4.

5. The petitioners claimed to be residents of Junagadh. The petitioner No.2 claimed to be a retired forester, who worked for about 30 years in the Forest Department and presently working for preservation of wildlife more particularly animals like Asiatic lion, leopard, vultures and other herbivores animals. The impleaded petitioner No.4 claimed to be a former Assistant Professor in Navsari Agricultural University, a parttime environmentalist, a wildlife lover and undertook various activities throughout her career for spreading awareness for protection of Page 4 of 40 C/WPPIL/277/2016 CAV JUDGMENT environment and wildlife.

6. The case of the petitioners is as under:

6.1 The area falling under the districts of Junagadh, Amreli and Bhavnagar is the home for Asiatic lions, who were spread over the whole of Saurashtra, prior to about 100 years.

Eventually, their area is now confined to these three districts and are found mostly in Gir forest and Girnar Range of hills. There are two sanctuaries declared in the area viz., Gir sanctuary in the Sasan area and Girnar wildlife sanctuary spread over 181 sq. kilo meters. It is stated that, the area on the northern side of the road from Junagadh to Khadia and Khadia to Bilkha is part of ecosensitive zone. It is stated that, all the survey numbers, bounding Survey No.316 of Khadia, are covered by notification issued under Environment (Protection) Act, 1986, but, somehow Survey No.316 is missed. It is stated that, looking Page 5 of 40 C/WPPIL/277/2016 CAV JUDGMENT from the angle of latitude and longitude, the area of Survey No.316 is covered by eco sensitive zone, as the same being adjacent to Girnar sanctuary, which is home for Asiatic lion, leopard and other herbivorous animals. It is alleged that, such land covered by eco sensitive zone of Girnar sanctuary is covered by hilly areas, which are suitable for lions' movement but, they prefer to habitat in plain areas covered by forest. Precisely, it is the case of the petitioners that, though whole area including Survey Nos.316 and 280 is part of eco sensitive zone, covered by notification, such land is allotted by the 3rd respondent Collector for the purpose of Bhakta Kavi Narsinh Mehta University. Placing reliance on the communication dated 15.9.2015, it is stated that land bearing Survey No.316/part1 admeasuring 448684 Hectares is proposed to be transferred to the 4th respondent University for the purpose of construction of its buildings. It is stated that, though the petitioners were Page 6 of 40 C/WPPIL/277/2016 CAV JUDGMENT agitating against allotment by representing the authorities through several postcards, the respondents have proceeded for allotment and based on such allotment, the 4th respondent University invited tenders on 30.11.2016 for deforestation and cutting the trees and the efforts by the petitioners and like minded citizens have not yielded any results, as such, this petition is filed.

6.2 In the grounds of the petition, it is stated that, though Survey No.316 of Village Khadia, Taluka and District Junagadh is part of ecosensitive zone, because of some lapse, the notification does not mention said survey number, which is a large parcel of land and, to the knowledge of the petitioners, the Forest Department is actively pursuing the matter for correcting the mistake. It is alleged that, by virtue of the notification, though the area in question is declared as ecosensitive zone, where construction cannot be permitted, the 3rd Page 7 of 40 C/WPPIL/277/2016 CAV JUDGMENT respondent has allotted the land to the 4th respondent and the authorities are taking steps for making constructions for the purpose of University buildings, contrary to such notification and guidelines. It is alleged that, large scale deforestation and construction activity like the one, which is undertaken by the 4th respondent University, is not permissible as the same is contrary to the provisions of Environment (Protection) Act, 1986, Forest Act, 1927 and notification, declaring Girnar wildlife sanctuary as eco sensitive zone. It is alleged that, each lion covers approximately 4550 kms. each night and with the increase in human population and encroachment in the forest area, the instances of mananimal conflicts have increased. By virtue of impugned allotment made by the 2nd respondent only to the 4th respondent University, the natural habitats of the Asiatic lions are sought to be erased, which would not only compel them to move into civil areas but would also Page 8 of 40 C/WPPIL/277/2016 CAV JUDGMENT endanger their existence. It is submitted that, Union of India in its Ministry of Environment, Forest and Climate Change has established a committee for the purpose of regulating the activities in ecosensitive zones and it is obligatory on the part of all concerned to seek permission from the said committee before taking any decision to allot land, deforestation or construction in the ecosensitive zone. It is stated that, to the knowledge of the petitioners, no such permission is taken by the competent authorities before such allotment of land.

7. At the stage of admission, notice was issued by this Court. Separate affidavitin replies are filed on behalf of respondent Nos.3,4 and 5.

8. In the affidavitinreply filed on behalf of the 3rd respondent, while denying various allegations made by the petitioners, it Page 9 of 40 C/WPPIL/277/2016 CAV JUDGMENT is stated that, vide order dated 30.1.2006, land bearing Survey No.316/part1 admeasuring H.108 2539 situated at Moje Khadia, Taluka and District Junagadh was allotted on 10 years' lease period to the Deputy Conservator of Forest, Extension Division, Junagadh for the activities such as biodiversity as well as natural education. As it was found that only an extent of 2 acres situated in the centre out of total land was used for constructions by the nursery department and around 3 acres of land were used for Centre for Tree Plantation and as the remaining land was not used for the purpose for which it was allotted, in view of breach of condition of the grant, vide order dated 1.8.2015, the possession of the land admeasuring H.357989 on the eastern side of the total land and the land admeasuring H90605 situated on the western side of the total land and in total, the land admeasuring H.448684 was taken back by the State Government from the Forest Department.

Page 10 of 40 C/WPPIL/277/2016 CAV JUDGMENT 8.1 Thereafter, pursuant to a proposal made by the 4th respondent University before the State Government, through Revenue Department to allot the land in question, after approval from the State Government on 3.9.2015, the Collector, Junagadh, vide order dated 10.12.2015 allotted the land admeasuring H.357989 of Survey No.316/part1 as well as land admeasuring H.9 0695 of Survey No.280 to the 4th respondent University to set up basic infrastructure for administrative and academic functions of the University. Thereafter, vide letter dated 4.2.2016, the 4th respondent University sought additional land and as the lease period of 10 years for the land allotted to the Forest department expired on 29.1.2016, after following the procedure and after approval from the State Government on 3.6.2016, the Collector, Junagadh, vide order dated 22.7.2016 allotted the land admeasuring H.502643 out of remaining land admeasuring H.526882 to the 4th respondent Page 11 of 40 C/WPPIL/277/2016 CAV JUDGMENT University. Therefore, in total, lands admeasuring H.860632 sq.mtrs from Survey No.316/part1 and H.90695 sq. mtrs. from Survey No.280 were allotted to the 4th respondent University and thereafter, the 4th respondent University sought permission from the Mamlatdar, Junagadh for cutting wild baboon trees by inviting tender. It is stated that, pursuant to application of the 4th respondent University, after obtaining opinion from the Forest Department and after following the due procedure, action would be taken on such application.

8.2 It is stated that, out of above two survey numbers i.e., Survey No.316/part1 and Survey No.280, Survey No.280 falls in the limits of ecosensitive zone and during the meeting of the EcoSensitive Zone Monitoring Committee on 8.9.2015, the educational activity was considered as deemed permitted, not forming part of prohibited activity. In view of the aforesaid Page 12 of 40 C/WPPIL/277/2016 CAV JUDGMENT facts, the State authorities have allotted the lands in question to the 4th respondent University on certain terms and conditions. Therefore, there is no substance in the petition for grant of relief as prayed for.

9. In the affidavitinreply filed on behalf of the 4th respondent by its InCharge Registrar, while denying the various allegations made by the petitioners, it is stated that, the 4th respondent university has not violated any environmental laws, as alleged or otherwise and, therefore, the petition is not maintainable for grant of relief as prayed for. It is averred that, the 4th respondent University was bifurcated from Saurashtra University on 10.5.2015 by a special Resolution of Government of Gujarat and thereafter, there are about 142 colleges of different disciplines in the districts of Junagadh, GirSomnath, Dwarka and Porbandar, which are within the purview of the 4th respondent University. While giving details Page 13 of 40 C/WPPIL/277/2016 CAV JUDGMENT of initial allotment of land admeasuring H.108 2539 situated at Moje Khadia, Taluka and District Junagadh to the Forest department and further steps taken by the respondents for taking back the land by the Collector, it is stated that, as the 4th respondent University is situated in Junagadh and on its formation, as acute need arose for setting up basic infrastructure so as to facilitate the administrative and academic functions of the university, the Commissioner of Higher Education requested the State Government to allot the land to the 4th respondent University for the said purpose. Accordingly, administrative order was passed by the Collector, Junagadh on 10.12.2015 on terms and conditions stipulated therein, granting land admeasuring H.357989 of Survey No.316/part1 out of total area of H.1082539 as well as land admeasuring H.90695 of Survey No.280 to the 4th respondent University. In all, land admeasuring H.448684 was allotted from Survey Page 14 of 40 C/WPPIL/277/2016 CAV JUDGMENT No.316/part1 and Survey No.280, but Survey No.316/part1 does not fall in ecosensitive zone, as per notification showed in AnnexureI. As much as the land allotted to the university was not sufficient, pursuant to communication from Vice Chancellor dated 4.2.2016 to the Collector, Junagadh, further allotment of 70 acres was sought. Pursuant to the same, the Collector, Junagadh had communicated allotment of land admeasuring H.502643 to the University on the terms and conditions stipulated therein.

9.1 With reference to the contentions and the grounds in support of the prayers made in the petition, it is stated that, the allegation of the petitioners for allotment of land on the ground that same is within the area of ecosensitive zone is baseless and is made without any valid basis and material. It is stated that, Ministry of Environment and Forests framed guidelines for ecosensitive zone, around Page 15 of 40 C/WPPIL/277/2016 CAV JUDGMENT protected areas to prevent ecolocality damage likely to be caused due to developmental activities around National Parks and Wild Life Sanctuaries. The ecosensitive zone would act as "Shock Absorbers" to the protected areas by regulating and managing the activities around such areas. The ecosensitive zone would also act as transmission zone from areas of high protection to areas involving lesser protection. It is further stated that, as decided by the National Board for Wild Life, the activities in ecosensitive zone would be regulatory in nature rather than prohibitory, unless otherwise so required. As such, it is submitted that, eco sensitive zone does not restrain any activity of regulatory nature and it does not provide any restriction in carrying out any activity with prior permission of appropriate authority. Referring to the constitution of the Monitoring Committee, it is stated that, pursuant to guidelines issued by the Ministry of Environment and Forests, the said Monitoring Committee in Page 16 of 40 C/WPPIL/277/2016 CAV JUDGMENT its meeting held on 8.9.2015 held that land falling in Survey No.316/part1 is not covered within the category of ecosensitive zone and the land admeasuring H.090695 of Survey No.280 is falling in ecosensitive zone. It is stated that, as much as ecosensitive zone is not notified in the list of "Identification of Activities", the Committee treated the said activity as deemed permitted activity in eco sensitive zone.

9.2 It is further stated in the reply affidavit filed on behalf of the 4th respondent that, the aforesaid land allotted to the University consists of only wild babool trees and their removal will not affect the ecological balance. The protected trees are not to be cut and the University has completed tender process for cleaning the said land and the tenders were opened on 16.12.2016. It is stated that, in view of the pendency of this petition, the University has not proceeded further.

Page 17 of 40 C/WPPIL/277/2016 CAV JUDGMENT 9.3 It is further stated in the reply that, considering the topography of the land allotted to the 4th respondent University, it is clear that Survey No.280 falls in the ecosensitive zone and is located between Survey No.316 and the main road from Junagadh to Khadia. If the land falling in Survey No.280 is not granted then, it would not be possible for the respondent University to develop necessary infrastructure as required for the University. It is stated that, in fact, the University can get access through Survey No.280, which is the entry and exit for the respondent University. In the reply affidavit, the 4th respondent denied the allegation of the petitioners that land covered by Survey No.316 is occupied by the Forest Department and Survey No.316/part1 is not within the ecosensitive zone. It is stated that, allotment is not in contravention of the provisions of Environment Protection Act, 1986, Environment Protection Rules, 1986 and Forest Page 18 of 40 C/WPPIL/277/2016 CAV JUDGMENT Act, 1927 and the notification declaring Girnar Wild Life Sanctuary as ecosensitive zone as well as the order passed by the Hon'ble Supreme Court. It is stated that, as much as the land of Survey No.316/part1 is covered by notification falling in ecosensitive zone and the educational activity not being prohibited therein, as the same is not identified activity, the newly constituted Committee has taken decision for treating the educational activity as a permitted activity for the purpose of allotment of land to the University. 9.4 Finally, it is the case of the 4th respondent University in the reply affidavit that, there is encroachment over the land in question, there are illegal mining activities being carried out by certain land mafias and there are several persons having vested interest, who are obstructing the educational activity being undertaken by the State Government through the respondent University, Page 19 of 40 C/WPPIL/277/2016 CAV JUDGMENT which is for the benefit of upliftment of the youth in the remote area of Saurashtra, as such, there was no ground for grant of relief as prayed for.

10. Separate affidavit is also filed on behalf of the respondent No.5. In the reply affidavit filed on behalf of the 5th respondent, while narrating the similar stand to that of the 4th respondent University about allotment made to the Forest Department of the land covered by Survey No.316 and resuming it back by the State Government for breach of conditions, it is stated that, the land covered by Survey No.316/part1 is not falling within the eco sensitive zone. So far as Survey No.280 is concerned, it is stated that, the Monitoring Committee in its meeting held on 8.9.2015 has held that, educational activity has not been notified as prohibited activity, as per the guidelines issued by the Government of India. It is stated that, as per the EcoSensitive Zone Page 20 of 40 C/WPPIL/277/2016 CAV JUDGMENT Notification dated 31.5.2012, three kinds of activities are enumerated in ecosensitive zones namely, (1) prohibited, (2) regulated and (3) permissible. It is stated that, the Committee constituted in accordance with the notification has considered the educational activity as a deemed permissible activity and, therefore, the Committee had approved allotment of lands in favour of the 4th respondent university for the purpose of educational activity. It is further pleaded that, there is no violation of any of the provisions of Saurashtra Tree Felling Act. It is averred that, so far as wild shrubbery is concerned, no permission is required and the authorities are within their rights to clear the same. Precisely, the stand of the 5th respondent is also to the effect that, so far as the land covered by Survey No.316/part1 is concerned, the same is not falling in ecosensitive zone and so far as the land covered by Survey No.280 is concerned, the Monitoring Committee itself has considered the educational activity as Page 21 of 40 C/WPPIL/277/2016 CAV JUDGMENT permitted activity, as such, approved the allotment. In view of the same, there are no grounds for granting the relief as prayed for by the petitioners.

11. We have heard Mr. G.M.Joshi, learned counsel for the petitioners, Mr. Parth H. Bhatt, learned counsel for respondent No.1, Mr. K.M.Antani, learned Assistant Government Pleader for respondent Nos.2,3,5 and 6 and Mr.Kamal Trivedi, learned Senior Counsel with Mr. D.G.Shukla, learned counsel for respondent No.4.

12. It is contended by Mr. G.M.Joshi, learned counsel appearing for the petitioners that, the impugned allotment is contrary to the notification issued by the 1st respondent Government, in exercise of powers conferred under Section 3 of the Environment (Protection) Act, 1986, notifying the area of 05 km. from the boundary of the protected area i.e. "Girnar EcoSensitive Zone". It is submitted that, Page 22 of 40 C/WPPIL/277/2016 CAV JUDGMENT though the land covered by Survey No.316/part1 is falling within the ecosensitive zone area, but if the same is looked from the angle of latitude and longitude, said survey number is also included, but said survey number is omitted in the notification. It is submitted that, so far as Survey No.280 is concerned, admittedly, the same is within the ecosensitive zone, as such, the allotment made by the Collector is illegal and arbitrary. It is submitted that, the districts of Amreli, Bhavnagar and Junagadh are home for Asiatic lions and more particularly in Gir and Girnar range hills, their habitat is established. It is further contended that, if the construction activities are allowed to go on in the ecosensitive zone area, they will be in violation of the provisions of the Wild Life (Protection) Act, 1972. It is submitted that, by virtue of such allotment, a restriction is imposed on the movement of Asiatic lions and in view of the increase in lion population, instances of mananimal conflict are increased Page 23 of 40 C/WPPIL/277/2016 CAV JUDGMENT and natural habitat of Asiatic lions is sought to be erased, which would not only compel them to move to civil areas but also would endanger their existence. As the allotments are contrary to the notification issued under the provisions of Environment (Protection) Act, 1986 and as much as the construction activity cannot be permitted therein, the allotment itself is required to be quashed.

13. On the other hand, it is submitted by Mr.Kamal Trivedi, learned Senior Counsel appearing for the 4th respondent University that, the land covered by Survey No.316/part1 of Village Khadia is not notified as eco sensitive zone, as per the notification. It is further submitted that, only an extent of H.9 0695 alone is allotted from Survey No.280 and further, there is no prohibition of allotment of land for the purpose of educational activity, as such, there is no illegality in the allotment. Taking us through the guidelines issued by the Page 24 of 40 C/WPPIL/277/2016 CAV JUDGMENT Ministry of Environment and Forests and further notification issued by the respondents, it is submitted that, in the ecosensitive zone, certain activities are prohibited, certain activities are regulated and certain activities are permitted. It is submitted that, having regard to the proposal of the University, their request was duly considered by the Government and proposal was approved by the competent committee and allotment was made. It is submitted that, as per the notification, several activities are regulated, including the activity of hotel construction and resorts, but they are not prohibited. It is submitted that, the proposal for ecosensitive zone acts as "Shock Absorbers" but, in absence of any notification, prohibiting educational activity, the allotment is not illegal. It is submitted that, Saurashtra University came to be bifurcated and new University namely, Bhakta Kavi Narsinh Mehta University came to be formed, covering about 142 colleges of different Page 25 of 40 C/WPPIL/277/2016 CAV JUDGMENT disciplines in the areas of Junagadh, Gir Somnath, Dev Bhoomi Dwarka and Porbandar districts with headquarter at Junagadh. It is submitted that, on formation of new University, an acute need arose for setting up basic infrastructure so as to facilitate conduct of administrative and academic functions of the university. It is contended by learned Senior Counsel that, even if the land is covered by notification in the ecosensitive zone area, perse, there is no prohibition of education activities, as such, when the competent committee has approved the proposal, it cannot be said that allotment itself is illegal. It is submitted that, the land in question is not in a forest area nor covered by the Forest Act. It is submitted that, the allotment will not have any impact on the existing lion population in the protected area of Girnar Wild Life Sanctuary, as such, there are no grounds to grant the relief as prayed for.

Page 26 of 40 C/WPPIL/277/2016 CAV JUDGMENT

14. Mr. Parth H.Bhatt, the learned counsel appearing for the 1st respondent has submitted that, the allotment is not made in violation of any of the provisions of Environment (Protection) Act, 1986 and the rules framed thereunder and the notification issued notifying ecosensitive zone.

15. In response to the arguments, Mr. G.M.Joshi, learned counsel appearing for the petitioners, by referring to averments made in affidavitinrejoinder, has submitted that, by virtue of allotment made to the University, it will disturb the natural habitat of Asiatic lions moving in the ecosensitive zone area, resulting into lion searching for other territories, creating danger for themselves as well as human habitat in the area. It is submitted that area covered by shrubs like prosopis is ideal for movement of the lions during day time as well as for resting. Further, it is submitted that, merely because educational Page 27 of 40 C/WPPIL/277/2016 CAV JUDGMENT activity is not mentioned in the prohibited activity or regulated activity or permitted activity, as such, the Committee misconstrued the notification and construed education as a deemed permissible activity and such stand of the Committee is in violation of the notification itself.

16. Along with the covering letter dated 9.2.2011, the Government of India, Ministry of Environment and Forests(Wildlife Division) has issued guidelines for declaration of eco sensitive zones around national parks and wildlife sanctuaries. Clause 1.3 of the guidelines reads as under:

"1.3 Decision of National Board for Wildlife:

1.3.1 Considering the constraints communicated by the states, the proposal was reexamined by the National Board for Wildlife in its 2nd meeting held on 17th March 2005 and it was decided that the 'delineation Page 28 of 40 C/WPPIL/277/2016 CAV JUDGMENT of ecosensitive zones would have to be site specific and relate to regulation, rather than prohibition, of specific activities'.

The decision was communicated to all the State Governments for compliance vide letter dated 27th May 2005. Thereafter, it was further communicated with subsequent reminders."

Clauses 3 and 5 of the guidelines read as under:

"3. Purpose for declaring EcoSensitive Zone:

The purpose of declaring EcoSensitive Zones around National Parks and Sanctuaries is to create some kind of "Shock Absorber"

for the Protected Areas. They would also act as a transition zone from areas of high protection to areas involving lesser protection. As has been decided by the National Board for Wildlife, the activities in the Ecosensitive zones would be of a regulatory nature rather than prohibitive nature, unless and otherwise so required."

"5. Need for guidelines:

Page 29 of 40 C/WPPIL/277/2016 CAV JUDGMENT

5.1 As has been indicated vide para 1.4 above, Hon'ble Supreme Court has vide their order dated 4th December 2006 directed all the State/Union Territory Governments to forward proposals for declaration of ecosensitive zone around its Protected Areas. However, only States like Haryana, Gujarat, Mizoram, Meghalaya, Assam, Goa have forwarded proposals. However, several other States/ Union Territories have not come forward, perhaps for want of guidelines in this regard.

5.2 In this context, it is pertinent to note here that the Hon'ble Supreme Court vide their judgment dated 3rd December 2010 in the case relating to the construction of park at NOIDA near Okha Bird Sanctuary filed by Shri Anand Arya & Anr vs. Union of India (I.A. Nos.26092610 of 2009) in Writ Petition (Civil) No.202/1995, had noted that the State Government of Uttar Pradesh had not declared Ecosensitive zones around its Protected Areas as the Government of India had not issued any guidelines in this regard.

5.3 The Ministry of Environment & Forests had set up a committee under the Chairmanship of Shri Pranab Sen for identifying parameters Page 30 of 40 C/WPPIL/277/2016 CAV JUDGMENT for designating Ecologically Sensitive Areas in India. The said Committee had identified parameters for declaration of specific units of land/water etc as Ecologically Sensitive Zones based on parameters like richness of flora & fauna; slope; rarity & endemism of species in the area; origins of rivers etc. However, these parameters do not basically apply to Ecosensitive zones in the instant context, i.e. around Protected Areas. In the instant case, the Ecosensitive zones are meant to act as a "Shock absorbers"/"transition zone" to the Protected Areas by regulating and managing the activities around such Protected Areas."

17. As per Annexure1 to the guidelines, certain activities are prohibited, certain activities are regulated and certain activities are permitted. The list as mentioned in Annexure1 itself makes it clear that, the list of activities mentioned in the Annexure1 is not exhaustive but illustrative. A broad list of activities is mentioned in Annexure1 i.e. supplementation. The very fact that Annexure1 states is that activities need supplementation, Page 31 of 40 C/WPPIL/277/2016 CAV JUDGMENT which itself is indicative of the fact that it is not an exhaustive list but an illustrative list.

18. It is evident from the notification issued by the Ministry of Environment and Forests of the Government of India dated 31.5.2012 that, a Monitoring Committee was constituted and it declared the area around 05 km of Girnar Wildlife Sanctuary as ecosensitive zone. The notification is a statutory notification issued in exercise of powers conferred under subSection (1) read with clause (v) and clause (xiv) of subSection (2) of Section 3 of Environment (Protection) Act, 1986 and subrule (3) of rule 5 of the Environment (Protection) Rules, 1986. The notification clearly states that, areas upto 5 km from the boundary of protected area of Girnar Wildlife Sanctuary, enclosed within the boundary described in the notification in the Girnar Reserve Forest in Junagadh and Bhesan Talukas of Junagadh District, are declared as ecosensitive zones. It is true Page 32 of 40 C/WPPIL/277/2016 CAV JUDGMENT that, as per the notification, there is a requirement for preparation of zonal plan for eco sensitive zone but, we are of the view that, non preparation itself is no ground to claim the relief as claimed in the petition. We are mindful of the fact that this petition is filed by way of Public Interest Litigation but, when there is a statutory notification, which is issued notifying area upto 5 km from the boundary of sanctuary as ecosensitive zone, it is not possible for this Court to go beyond the scope of such notification and declare as to which are the lands, which are coming within the zone and which are outside the zone. It is not disputed that, the land of Survey No.316/part1 is not covered by the notification but it is the case of the petitioners that, if latitude and longitude aspects are taken into consideration, said survey number is also included, but there is a mistake on the part of the respondents in omitting the said survey number. Unless there is a corrigendum to the notification, merely Page 33 of 40 C/WPPIL/277/2016 CAV JUDGMENT because it is nearer to the boundary, that by itself is no ground of such survey number being included in the ecosensitive zone. The map around the Girnar boundary showing ecosensitive zone is not uniform, as much as the same covers the area from 0 upto 5 km. It is pertinent to mention that, the entire area of 5 km from the boundary of Girnar Wildlife Sanctuary is not covered, but the distance from the boundary varies from place to place. As much as it stretches from 0 upto 5 km, it cannot be considered as uniform 5 km from the boundary. In view of such notification, the plea of the petitioners that, area covered by Survey No.316/part1 is shown nearer to the boundary, is no ground to accept that, entire Survey No.316/part1 is covered by the notification. It is true that even in the monitoring committee, such aspect is discussed, but in absence of any corrigendum to the notification, we cannot accept the plea that, land in Survey No.316/part1 is part of ecosensitive zone. Page 34 of 40 C/WPPIL/277/2016 CAV JUDGMENT When the authorities on the subject have prepared the map and boundary global positioning system points of Girnar Wildlife Sanctuary, in absence of any other material to show that there is a mistake on the part of the respondents, we cannot accept the plea that, it is to be considered as within the area of eco sensitive zone.

19. So far as Survey No.280 is concerned, only an extent of land admeasuring H.90695 is allotted to the 4th respondent University.

20. As it is not in dispute that Survey No.280 of Village Khadia, Taluka & District Junagadh is covered by notification, we will examine whether such notification will come in the way of the governmental authorities for allowing such land for the purpose of educational activity. It is clear from the guidelines issued by the Ministry of Environment and Forests (Wildlife Division) that the Page 35 of 40 C/WPPIL/277/2016 CAV JUDGMENT authorities had declared ecosensitive zone around national parks and wildlife sanctuaries, to create some kind of "Shock Absorber" for the protected areas. The guidelines issued by the Government of India show that activities in eco sensitive zone would be of regulatory nature rather than prohibitory, unless otherwise so required. Along with the notification, annexures are also enclosed. The annexures to the notification are map showing the ecosensitive zone area of Girnar Wildlife Sanctuary and GPS Coordinates of Girnar Wildlife Sanctuary boundary and the list of Villages along with survey numbers. So far as Survey No.316 is concerned, such survey number is not there in the annexures to the notification. AnnexureIII to the notification details activities to be prohibited, regulated or permitted within the ecosensitive zone around Girnar Wildlife Sanctuary. From a perusal of various activities notified in Annexure III to the notification, establishment of hotels and resorts in the ecosensitive zone is not prohibited but is regulated. Even felling of trees is not Page 36 of 40 C/WPPIL/277/2016 CAV JUDGMENT prohibited but is regulated. In absence of any prohibition, the impugned allotment for the purpose of educational activity cannot be said to be perse illegal. When establishment of hotels and resorts by private persons is not prohibited, there is no reason for prohibiting allotment of land to the University. Said aspect is also considered by the Monitoring Committee constituted pursuant to notification dated 31.5.2012 and a perusal of the minutes of the said meeting indicate that they have considered the educational activity as deemed to be permitted. Though it is contended by Mr. G.M.Joshi, the learned counsel appearing for the petitioners that, merely because educational activity is not a recognized activity, same cannot be construed as a deemed permissible activity, but it is clear from the very guidelines issued by Ministry of Environment and Forests(Wildlife Division) that, the activities, which are mentioned in the guidelines are broad list of activities. From the guidelines, it is clear that, the list of activities mentioned in such notification is not exhaustive but illustrative. If any activity, Page 37 of 40 C/WPPIL/277/2016 CAV JUDGMENT which is not mentioned in the guidelines and notification, falls for consideration, it is always open for the authorities to consider, on case to case basis. When establishment of hotels and resorts by the private parties is not prohibited, there is no reason to accept the plea of the petitioners that, the land, which is allotted for the educational activity of University, is to be construed as prohibited, in ecosensitive zone. Having regard to the fact that in the guidelines and notification, only broad list of activities is mentioned, there is nothing wrong for the Monitoring Committee considering educational activity, as deemed to be permitted in the ecosensitive zone. Although it is the case of the petitioners that allotment of land in the ecosensitive zone will have bearing on the Asiatic lions, which are within the notified wildlife sanctuary, but in absence of any prohibition and in absence of any quantifiable data and other materials on record, it is not possible to accept the plea of the Page 38 of 40 C/WPPIL/277/2016 CAV JUDGMENT petitioners to declare the impugned allotment as illegal. Moreover, it is to be seen that, earlier the villages of Junagadh, Porbandar, GirSomnath, Dev Bhoomi Dwarka were coming within the Saurashtra University, but with the bifurcation and formation of new University called Bhakta Kavi Narsinh Mehta University, around 142 colleges of different disciplines in the areas of various districts of Junagadh, Gir Somnath, Dwarka and Porbandar are covered and it is necessary to develop required infrastructure for the purpose of running the administration of said University. It is also to be noticed that, by acquiring large extent of land for the purpose of University, such area will become lung space, for the surrounding area of the University.

21. For the aforesaid reasons and keeping in mind the fact that the allotment is also for the purpose of University, which is required to cater to the needs of thousands of youth, who are aspiring Page 39 of 40 C/WPPIL/277/2016 CAV JUDGMENT for education in the districts of Junagadh, Gir Somnath, Dwarka and Porbandar, which are within the area of the University, we are of the view that it is not a fit case for grant of relief as prayed for.

22. For the aforesaid reasons, we do not find any merit in this writ petition. Accordingly, same is dismissed. No order as to costs.

(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) RADHAKRISHNAN K.V. Page 40 of 40

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