Madhya Pradesh High Court
Smt. Sushila Pandey vs The State Of Madhya Pradesh on 3 February, 2012
(1) W.P. No. 351/2012
HIGH COURT OF MADHYA PRADESH: JABALPUR
Writ Petition No. 351 / 2012
Smt. Sushila Pandey & another
Versus
State of Madhya Pradesh and others
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Shri Pankaj Dubey, learned counsel for the petitioner.
Shri S.K.Shrivastava, learned Panel Lawyer, for the
State/respondents.
Present : Hon'ble Shri Justice R.S.Jha
ORDER
(03-02-2012) The petitioners have filed this petition being aggrieved by the order dated 1-11-2011 passed by the respondent No. 4, the Field Director, Bandhavgarh Tiger Reserve, District Umariya, M.P., whereby the Maruti (Gypsy) Nos. MP20BA-1777 and MP54T-0304 have been banned from entering into the Bandhavgarh Tiger Reserve for all times to come.
2. It is submitted by the learned counsel appearing for the petitioners that the petitioners are owners of the two Maruti (Gypsy) vehicles which are hired out to tourists for the purposes of park rides within Bandhavgarh National Park. Previously, the respondent No. 4 had passed an order on 4-6-2010 prohibiting the entry of the aforesaid two (2) W.P. No. 351/2012 vehicles of the petitioners in Bandhavgarh National Park and had also cancelled the park registration of the aforesaid two vehicles for the year 2009-2010, being aggrieved by which the petitioners had filed W.P.No. 8355/2010 which was disposed of by order dated 8-4-2011 with the direction to the respondent/authorities to again hear and decide the matter after giving opportunity of hearing to the petitioners after quashing the impugned order dated 4-6-2010 in the following terms :-
"I have considered the submission made on both sides. Admittedly, the order dated 4-6-2010, Annexure P/1 which is stigmatic in nature, has been passed without affording any opportunity to the petitioners, therefore, the same cannot be sustained in the eye of law. Accordingly, it is quashed. However, it would be open for the respondent/State to issue fresh notice and to take action in accordance with law after affording an opportunity of hearing to the petitioners.
With the aforesaid direction, the writ petition stands disposed of."
3. It is submitted by the learned counsel for the petitioners that in spite of the directions issued by this Court, the vehicles of the petitioners were not permitted to enter the park and on the contrary, the respondent No.4 issued a notice to the petitioners on 7-5-2011 seeking to take up further proceedings after giving opportunity of hearing to them. It is further stated by the learned counsel for the petitioners that as no hearing took place in the matter on the first day, a second notice was issued to them on 30-6-2011 fixing 23-7-2011 as the date for further hearing. It has been averred that on 23-7-2011 the petitioners filed an application before the respondent No. 4 (3) W.P. No. 351/2012 to the effect that though they had been directed to appear before him and make their submissions in respect of the issue involved, however, as they have not been intimated as to what is the case that they had to place before him, therefore, a notice giving details of the issues in respect of which reply is sought from the petitioners be given to them, however, in spite of the aforesaid reply of the petitioners, the respondent No. 4 has again passed the impugned order dated 1-11-2011 banning the entry of the aforesaid two vehicles in Bandhavgarh National Park for all times to come.
4. It is submitted by the learned counsel for the petitioners that the impugned order dated 1-11-2011 has been issued without giving any opportunity of hearing to the petitioners or complying with the directions issued by this Court in the previous petition filed by them and, therefore, the same deserves to be quashed.
5. Looking to the fact that the previous petition filed by the petitioners raising similar issues and grounds against the first order of cancellation of registration and banning of entry of the petitioners' vehicles was allowed by quashing the order and thereafter leaving it open for the respondent/ State to issue fresh notice to take action in accordance with law after affording opportunity of hearing to the petitioners and that pursuant thereto the respondent/authorities issued notice to the petitioners on 7-5-2011 in reply to which filed by the petitioners before the respondent No. 4 on 23-7-2011 they have surprisingly stated that they are not aware as to what stand they are required to take before the authority as well as the facts stated by the authority in the impugned order regarding giving of opportunity of hearing (4) W.P. No. 351/2012 to the petitioners, this Court has thought it proper to give full opportunity of hearing to the petitioners with liberty to take up all possible issues and place whatever defence they were allegedly prevented from taking up by the authorities in support of their submissions before this Court in the present proceedings pursuant to which the learned counsel for the petitioners submitted that as per the documents of the respondents themselves the aforesaid two vehicles of the petitioners i.e. Maruti (Gypsy) Nos. MP20BA-1777 and MP54T-0304 were not involved in the incident which resulted in the death of a tigress in Bandhavgarh National Park in Jhurjhura Range and, therefore, the impugned orders apparently indicate non-application of mind on behalf of the respondent No.4. It is further submitted that Dr. K.K.Pandey, the husband of the petitioner No. 1 and son of the petitioner No. 2 does not own any of the aforesaid two Maruti (Gypsy) and, therefore, even if there is a finding recorded against him in the enquiry report which was conducted into the aforesaid incident resulting in death of the tigress, no order in respect of two the Maruti (Gypsy) belonging to the petitioners could have been required to issued by the respondent/authorities and, therefore, the impugned order deserves to be quashed.
6. I have heard the learned counsel for the parties at length and perused the record.
7. From a perusal of the report of the Member/Secretary, National Tiger Conservation Authority, Camp Bandhavgarh, Annexure P-2, it is apparent that a tigress was seen in an abnormally injured condition on 19-5-2010 by several tourist-vehicles which ultimately succumbed to its injuries at 9.20 A.M. on the same day and (5) W.P. No. 351/2012 on enquiry it was learnt that three vehicles, two belonging to the Park Management and one outsourced to the Chief Executive Officer, Zila Panchayat, Umaria had entered into the park in the late afternoon on 18-5-2010 without obtaining an entry ticket. Out of the aforesaid three vehicles one returned back to Tala at 9.30 P.M. in the night while the other two vehicles, including the outsourced vehicle, did not return and stayed in the park beyond the permitted park timings and visited the in-situ enclosures at Baheraha (Magdhi Range) for viewing the tiger cubs housed therein which was not permitted. It was also found that the aforesaid vehicles went to the spot where the incident occurred at Tala and returned via Bhadrashila barrier instead of the main gate and that there was strong indication of the fact that the tigress was fatally hit by one of these two vehicles in Jhurjhura Range. As per the report these two vehicles were occupied by Akshay Kumar Singh, CEO, Zila Panchayat, Umaria, Lalit Kumar Pandey, Range Officer, Magdhi, Dr. K.K.Pandey, Veterinary Assistant Surgeon, Tala, one relative of Akshay Kumar Singh along with three children, Man Singh, driver of the Range Officer, Magdhi and the driver of the vehicle used by the CEO, Umria. The report, Annexure P-2 also took note of the fact that Dr. K.K.Pandey owns or has control over a lodge named as "Tiger Heaven" at Bandhavgarh National Park. It was also found that Dr. K.K.Pandey, husband of petitioner No. 1 and on of petitioner No. 2 was also present during the postmortem of the tigress and it was in fact he who had provided his Bolero vehicle (outsourced) on contractual basis to the C.E.O., Umaria which was involved in the incident.
(6) W.P. No. 351/20128. It is also apparent from a perusal of the impugned order dated 1-11-2011 that the respondent No. 4 has taken note of the aforesaid aspects and has recorded a finding to the effect that the vehicle outsourced to the CEO, Zila Panchayat, Umaria by Dr. K.K.Pandey i.e. Mahendra Bolero vehicle No. MP18C-3038 had entered the park without purchasing entry tickets contrary to the rules and that in the preliminary enquiry a fact had emerged that the last vehicle in the night passing by Juhrjhura Range was the aforesaid Mahendra Bolero owned by Dr. K.K.Pandey which also had marks on its bumper which indicated that it had recently been involved in an accident. The respondent No. 4 in his report has also stated that an enquiry into the aforesaid incident has now been handed over by the State of M.P. to the Special Task Force of the C.I.D. The respondent No. 4 has held that because of the dubious role of Dr. K.K.Pandey in the incident which resulted in the death of a tigress in Jhurjhura Range, the entry of the two Maruti (Gypsy) apparently belonging to him but registered in the name of his wife and mother i.e. the petitioners, had been banned by order dated 4-6-2010 and the park registration for the year 2009-10 had also been cancelled but the said order was set aside by this Court on the ground that opportunity of hearing to the petitioners was not given pursuant to which the respondent No. 4 has again issued notice to the petitioners giving them opportunity of hearing in the matter.
9. The respondent No. 4 has also recorded a finding to the effect that the notice for hearing was issued to the petitioners on 7-5-2011 fixing 10-6-2011 as the date of hearing, however, as the respondent No. 4 was not (7) W.P. No. 351/2012 available on 10-6-2010, therefore, on 30-6-2011 another opportunity of hearing was given to the petitioners. Thereafter, on 10-7-2011 Shri Lal K.K.Singh, Advocate of the petitioners appeared before the respondent No. 4 and stated that he had no hope for justice from respondent No. 4 and they would file a contempt petition before this Court, however, he was given 23-7-2011 as a further date of hearing. The respondent No. 4 has also recorded a finding to the effect that on 23-7-2011 he kept waiting for the petitioners from 10.30 A.M. to 1.30 P.M. but the petitioners did not appear, however, as soon as he left the office at 1.30 P.M., the petitioners presented themselves at the office, but as the petitioners had already filed a contempt petition against him and, therefore, passing orders in the matter was urgent he passed the impugned order on 1-11-2011 banning the entry of the two Marutis (Gypsy) in Bandhavgarh Tiger Reserve for all times to come.
10. From a perusal of the aforesaid facts and circumstances it is clear that the authority has taken note of the fact that the Maruti (Gypsy) were registered in the name of the petitioners in spite of which the impugned order banning the entry of the petitioners' vehicles had been issued on account of the fact that the vehicle (Mahendra Bolero) belonging to the husband of the petitioner No. 1 and the son of petitioner No. 2 was involved in the incident which resulted in the death of a tigress who was nurturing small cubs, in the night of 18-5-2010. It is also clear that the authority has taken into consideration the fact that the aforesaid Dr. K.K.Pandey owned and has a control over a lodge at Bandhavgarh National Park, that his vehicle (Mahendra Bolero) was (8) W.P. No. 351/2012 outsourced to CEO, Zila Panchayat, Umaria for using it in park rides, that entry of the aforesaid vehicle in the park in the night of 18-5-2010 was beyond the prescribed time limit and without purchasing the entry tickets for viewing the tiger cubs housed therein which acts were all contrary to the rules and regulations and in such circumstances with a view to ensure proper tiger conservation and to give a very clear and strict message to all concerned the impugned order has been passed banning entry of the two Maruti (Gypsy) which are in the name of the petitioners.
11. It is also clear from a perusal of the impugned order and the reply filed by the petitioners before the authority that the petitioners on the one hand did not file their defence before the authority in spite of notices and entering appearance before the authority and on the other hand were threatening him with contempt and in such circumstances, the authority was left with no option but to pass orders in the matter.
12. In the circumstances the contention of the petitioners that they were denied opportunity of hearing is factually incorrect and is accordingly rejected.
13. Apparently, Dr. K.K.Pandey and his vehicle was involved in the incident and in such circumstances no fault can be found with the order passed by the respondent No. 4 banning the aforesaid two Maruti (Gypsy) belonging to him which are in the name of the petitioners who are the wife and mother of Dr. K.K.Pandey. It is also to be noted that entry of vehicles in national parks, specifically Tiger Reserves, is controlled by the Park Management and no person has a fundamental right to enter into a national (9) W.P. No. 351/2012 park at any time on his own free will and can do so only in accordance with and subject to the regulations and rules framed by the Park Management and, therefore, the contention of the petitioners that the impugned order results in violation of their fundamental right to do business by entering into the national park, is patently and basically misconceived as no such unrestricted right vests in the petitioners.
14. I am also of the considered opinion that the respondent No. 4 has given cogent reasons in his order and that the grounds furnished and stated by the learned counsel for the petitioners before this Court in the present petition; namely that the two Maruti (Gypsy) were not involved in the incident and that opportunity of hearing was not given to the petitioners before passing the impugned order deserve to be rejected for the reasons stated by me in the preceding paragraphs. It would not be out of place to observe that tremendous efforts all over the country are being made by the Central Government, the State Government and other authorities towards preservation and conservation of tigers which incidentally is also the national animal of our country and in such circumstances the facts of the present case which indicate that Dr. K.K.Pandey along with others entered the national park beyond the prescribed time limit and dashed into a tigress who was nurturing her cubs in the night of 18-5-2010 resulting in the death of tigress indicates the audacity with which the rules of the park have been flouted and in such circumstances I am of the considered opinion that the authority has rightly stated that a strong message to all concerned needs to be given by taking stringent measures ( 10 ) W.P. No. 351/2012 banning the vehicles belonging to Dr. K.K.Pandey registered in the name of the petitioners who are the wife and mother of the said Dr. K.K.Pandey. I am constrained to say so as in spite of the aforesaid facts if the said Dr. K.K.Pandey is permitted to enjoy the fruits of his misdeeds simply on the ground that the vehicles are registered in the name of the petitioners and thereby litigating through them, it would immediately encourage other persons also to indulge in similar activities which would result in total failure of the intensive efforts made by the Central and State Governments towards preservation of tigress.
15. In the backdrop of the aforesaid facts, I am also of the opinion that it would not be in the interest of the law to involve the extraordinary jurisdiction of this Court to interfere in the impugned order under Article 226 of the Constitution of India.
16. In view of the aforesaid facts and circumstances that emerge in the present petition, I do not find any infirmity in the impugned order banning the petitioners' vehicles from entering into Bandhavgarh National Park for all times to come. Accordingly, the petition filed by the petitioners being devoid of any merit deserves to be and is hereby dismissed.
(R.S.Jha) Judge mct ( 11 ) W.P. No. 351/2012 ( 12 ) W.P. No. 351/2012 Dr. K.K.Pandey along with others entered the national park beyond the prescribed time limit and dashed into a tigress who was nurturing her cubs in the night of 18-5-2010 resulting in death of tigress learnt that three vehicles, two belonging to the Park Management and one outsourced by the Chief Executive Officer, Zila Panchayat, Umaria have entered into the park in the later afternoon on apart from two park vehicle which also went inside the park for routine patrolling work without obtaining an entry ticket. Out of the aforesaid three vehicles one returned back to Tala at 9.30 P.M. in the night while the other two vehicles, including the outsourced vehicle, did not return and stayed in park in the night beyond the permitted park timings and visited in-situ enclosures at Baheraha (Magdhi Range) It was also found that the aforesaid vehicles went to the spot of incident at Tala and returned via Bhadrashila barrier instead of the main gate and that there was strong indication of the fact that the tigress was fatally hit by one of these two vehicles in Jhurjhura Range. ergodicity