Rajasthan High Court - Jodhpur
Hem Singh Rathore vs Union Of India on 2 August, 2022
Bench: Manindra Mohan Shrivastava, Vinod Kumar Bharwani
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ (PIL) Petition No. 10607/2022
1. Hem Singh Rathore S/o Shri Damodar Singh Rathore,
Aged About 40 Years, Resident Of Village Jajiya, Gram
Panchayat Dedha, Tehsil Sam, District Jaisalmer.
2. Chandan Singh S/o Laxman Singh, Aged About 50 Years,
Resident Of Village Jajiya, Gram Panchayat Dedha, Tehsil
Sam, District Jaisalmer.
3. Manohar Singh S/o Late Shri Chanan Mal, Aged About 50
Years, Resident Of Village Jajiya, Gram Panchayat Dedha,
Tehsil Sam, District Jaisalmer.
4. Damodar Singh S/o Late Shri Khet Singh, Aged About 68
Years, Resident Of Village Jajiya, Gram Panchayat Dedha,
Tehsil Sam, District Jaisalmer.
5. Khem Singh S/o Late Shri Durg Singh, Aged About 52
Years, Resident Of Village Damodara Tehsil Sam And
District Jaisalmer.
----Petitioners
Versus
1. Union Of India, Through Secretary To Government Of
India, Ministry Of Environment, Forest And Climate
Change, Indira Paryavaran Bhawan, Jor Bagh Road,
Aliganj, New Delhi.
2. National Board For Wildlife, Through Its Member
Secretary Cum Additional Director General Of Forest
(Wildlife) And Director, Wildlife Preservation, Ministry Of
Environment, Forest And Climate Change, Government Of
India Having Its Office At Indira Paryavaran Bhawan, Jor
Bagh Road, Aliganj, New Delhi.
3. State Board For Wildlife, Through Its Member Secretary
And Additional Principal Chief Conservator Of Forest And
Chief Wildlife Warden, Van Bhawan, Vaniki Path
Rajasthan, Jaipur.
4. State Of Rajasthan, Through Deputy Conservator Of
Forest, Desert National Park, Jaisalmer.
5. District Collector, Jaisalmer.
6. Mining Engineer, Jaisalmer.
7. Wildlife Institute Of India, Through Its Director, Wildlife
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Institute Road, Chandrabani, Dehradun (Uttrakhand).
8. Meenakshi Rajawat W/o Sulan Singh, Resident Of Ranjeet
Nagar Jhotwara Khatipura District Jaipur, Having Its Office
At Bera Bagechi, Bera Road, Opposite To Nagar Palika
Jaisalmer (Rajasthan).
----Respondents
For Petitioner(s) : Mr. Manas Ramchhor Khatri
HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
Order 02/08/2022 Heard.
In this petition, styled as PIL, one of the submissions made by the learned counsel for the petitioner is that the effect of issuance of notification under Section 18 (1) of the Wildlife Protection Act, 1972 (for short 'The Act of 1972'), in view of the Section 66 (3) (4) of the Act of 1972 would be that the entire area covered under notification shall be deemed to be a wildlife sanctuary and, therefore, no other activity much less commercial activity could not be carried out within that area.
On that basis, the prayer has also been made to issue a writ restraining mining activities.
Other relief prayed for in the present writ petition by the petitioner is that the respondents be directed to accept proposal for declaration of eco-sensitive zone of Desert National Park Wildlife Sanctuary as has been proposed by the Deputy Conservator of Forest Wildlife, Jaisalmer to the Ministry of Environment, Forest and Climate Change. Further, prayer is made for issuance of notification for an appropriate declaration under (Downloaded on 08/08/2022 at 08:19:47 PM) (3 of 6) [CW-10607/2022] Section 3 Sub Section 2 Sub Clause 5 and Sub Clause 14 of the Environment Protection Act, 1986 for declaring the Desert National Park, Wildlife Sanctuary eco-sensitive zone providing for regulation, prohibition, control and monitoring of the activities permissible inside the Desert National Park Wildlife Sanctuary and eco-sensitive zone.
The petitioner has also prayed that the respondents be directed to demarcate, define, measure the limits of the territories of the eco-sensitive zone of the Desert National Park Wildlife Sanctuary in practicality and establish the permanent boundary marks over the same. A further prayer has been made to direct monitoring committee appointed on the eco-sensitive zone to take continuous introspection of the activities permitted inside the Desert National Park Wildlife Sanctuary. The petitioner further prays that the suitable manpower for protection of the territories of the National Park Wildlife Sanctuary, establishment of permanent boundary marks so as to obstruct the free flow of the people inside and outside the Desert National Park Wildlife Sanctuary be employed. A prayer has also been made for releasing the appropriate funds, manpower and machineries to protect and preserve the ecolological, faunal, floral and geomorphological significance of the Desert National Park Wildlife Sanctuary for the purposes of propagating, preserving and protecting the environment and wildlife. A prayer for restraining the commercial activities inside the proposed eco-sensitive zone such as the mining activity, establishment of solar farms, wind mills is also made.
As per petitioners' own showing, even though intention has been shown long back for notifying the area described under the (Downloaded on 08/08/2022 at 08:19:47 PM) (4 of 6) [CW-10607/2022] petition as wildlife sanctuary under the provisions of the National Wildlife Protection Act, the notification of intention has not culminated in issuance of notification of declaration as contemplated under Section 26 A of the Act. Further, even according to the petitioner and pleadings made in the petition, a final declaration of the entire area mentioned in the petition as National Park has also not been issued.
It appears that the State, almost 40 years before, had initiated the process for declaring certain areas in the desert as Wildlife Sanctuary/national park, but the same never culminated in issuance of any final declaration of the area either as a wildlife sanctuary or as a national park.
As far as the argument that by virtue of Section 66 sub- section 4 of the Act of 1972, the entire area comprised in the notification issued earlier under Section 18 shall be deemed to be a wildlife sanctuary, cannot be accepted. Section 66 of Section 4 reads as below:
"Section 663. Repeal and savings:-
(i) *******
(ii)******
(iii)******
(iv) For the removal of doubts, it is hereby further declared that where and proceeding under any provision of sections 19 to 25 (both inclusive) is pending on the date of commencement of the wild life (protection Amendement Act, 1991) any reserve forest of a part of territorial waters comprised within a sanctuary declared under section 18 to be a sanctuary before the date of such commencement shall be deemed to be a sanctuary declared under Section 26 A."
A fair reading of the provision shows that the deeming fiction is confined only in certain areas falling within the proposed wildlife (Downloaded on 08/08/2022 at 08:19:47 PM) (5 of 6) [CW-10607/2022] sanctuary under a notification of intention issued under Section 18 of the Wildlife Act.
Under the said Sub-section 4, it has been provided that where any proceedings under provisions of Section 19 to 25 (both inclusive) is pending on the date of commencement of the Wildlife Protection Amendment Act, 1991, any reserved forest or a part of a territorial water comprised within a sanctuary declared under Section 18 to be a sanctuary before the date of such commencement shall be deemed to be a sanctuary declared under Section 26 A. Therefore the deeming fiction is confined only with regard to the reserved forest or a part of a territorial water comprised within the area specified under Section 18. Therefore the deeming effect cannot be applied and extended so as to include entire area other than reserved forest or territorial water within the area covered under Section 18 of the Act.
The argument of the learned counsel for the petitioner stands on such submission that the entire area should be deemed to be a wildlife sanctuary and the respondent should be directed to prohibit all commercial or other activities which are otherwise not permissible within the wildlife sanctuary. This argument, in view of the above consideration must be therefore dismissed.
All other prayers which have been made in the writ petition are matters of consideration for the respondents. We deem it pertinent to observe here that the Deputy Conservator of Forest, Desert Park, Jaisalmer has already sent a proposal Annexure 12 for declaration of the area as eco-sensitive zone.
We also find that for one reason or the other, various notifications which were issued in the past have not been brought (Downloaded on 08/08/2022 at 08:19:47 PM) (6 of 6) [CW-10607/2022] to its logical conclusion one way or the other. It would be in the interest of the environment and protection of wildlife that such matters are decided by the Government expeditiously, one way or the other.
We would therefore direct the respondents to examine the proposal made by the Deputy Conservator of Forest, Desert Park, Jaisalmer as also consider regarding appropriate status to be accorded to areas which have already been included in notification issued in the past, but in respect of which final decision has not been taken by the State.
Taking into consideration the nature of the exercise required to be undertaken, at this stage we do not propose any timeline for concluding all the proceedings. However, if no decision is taken by the respondents within a period of four months from the date of the receipt of the certified copy of this order, it would be open for the petitioner to revive this petition.
Accordingly, the present writ petition is disposed off in the above terms.
(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),ACJ 2-Nitin/Deepika/-
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