Gujarat High Court
Wildwoods Resorts And Realties Private ... vs Union Of India on 17 September, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/SCA/16573/2019 ORDER DATED: 17/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16573 of 2019
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WILDWOODS RESORTS AND REALTIES PRIVATE LIMITED
Versus
UNION OF INDIA
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Appearance:
MR MIHIR JOSHI, SENIOR ADVOCATE WITH MS MEGHA JANI(1028) for
the Petitioner(s) No. 1,2
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR AAYAN PATEL,
AGP (1) for the Respondent(s) No. 2,5,6
MR RUTVIJ S OZA(5594) for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 17/09/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicants have prayed for the following reliefs:-
33(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside decision taken by State Board for Wildlife in its 16 th Meeting held on 08.07.2019 and be pleased command State Board of Wildlife to reconsider the proposal of the petitioners;
In the alternative, Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the Chief Wildlife Warden to forward 15 copies of his specific comments on the proposal of the petitioners along Page 1 of 8 Downloaded on : Mon Sep 20 21:51:31 IST 2021 C/SCA/16573/2019 ORDER DATED: 17/09/2021 with recommendation of State Board for Wildlife dated 08.07.2019 taken in its 16th Meeting to the National Board for Wildlife;
(B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding State Level Expert Appraisal Committee to consider the application of the petitioner dated 27.07.2019 for Environmental Clearance on merits without insisting on preapproval of the Project by the National Board for Wildlife;
(C) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the Respondents to consider the applications of the petitioners listed in Para 27 above strictly on merits without being influenced by the decision taken by State Board for Wildlife in its 16th Metting held on 08.07.2019 or by any other authority;
(D) Pending the hearing and final disposal of this petition, be pleased to direct the respondents to maintain status quo with respect to project of the petitioner of establishing a Wildlife Resort;
(E) Pending the hearing and final disposal of this petition, be pleased to direct the respondents to consider the applications of the petitioners listed in Para 27 above strictly on merits without being influenced by the decision taken by State Board for Wildlife in its 16th Meeting held on 08.07.2019 or by any other authority;
(F) for ad-interim relief in terms of para (D) and (E);
(G) for Costs;
(H) for such other and further reliefs as the circumstances may require.
2. We have thought fit to incorporate the reliefs prayed for in the writ-application as above only with a view to ensure that the first step in the process is undertaken at the earliest. The Project in question as pointed out by the writ-applicants in its memorandum of the writ-application is directly linked with a Memorandum Of Page 2 of 8 Downloaded on : Mon Sep 20 21:51:31 IST 2021 C/SCA/16573/2019 ORDER DATED: 17/09/2021 Understanding signed between the Government of Gujarat and the writ-applicants at the Vibrant Summit, 2009. The Project is spread over the land ad-measuring 171 Hector - 02 Are - 77 Sq.Meters. It comprises of land ad-measuring 99 Hector - 48 Are - 24 Sq.Meters allotted by the then Collector vide order dated 27.10.2010 for the purpose of establishing a Wildlife Resort.
3. It appears that for the said Project, in addition to the above the writ-applicants have also purchased huge parcels of land from different land owners during the period between 2009 and 2010. For the Project to get final nod, many permissions are required to be obtained from the different authorities. One such sanction is to be obtained from the State Board for Wildlife i.e. the respondent no.3 herein.
4. It appears that the proposal as regards the Project was taken into consideration by the State Wildlife Board in its meeting, which was convened on 08.07.2019. Such meeting was convened under the Chairmanship of the then Chief Minister and Chair Person of the State Board for Wildlife.
5. The Minutes of the Meeting are on record. We are concerned with the Agenda-4. The same reads thus:-
"Agenda 4: Proposal For clerance under Wildlife (Protection) Act - 1972 regarding the project within 10 km. Eco-Sensitive Zone (ESZ) of Gir Wildlife Sanctuary and recommendation therein.
Member Secretary stated that as per direction of Hon'ble Supreme Court of India Ministry of Environment and Forest Government India has issued guideline vide F. No.6-10/2011 WL, Page 3 of 8 Downloaded on : Mon Sep 20 21:51:31 IST 2021 C/SCA/16573/2019 ORDER DATED: 17/09/2021 dated 19.12.2012 for declaration of ESZ around Protected Areas. Member Secretary further stated that activities/ project within ESZ which require Environmental Clearance are required to obtain permission of Standing Committee of NBWL from wildlife view point. Such activities or project could be submitted to Standing Committee of NBWL for consideration only with the recommendation of SBWL. Member Secretary informed that proposal of Wildwood Resort and Realities Private Ltd. was received with following details:
Agenda Proposal User Agency Name of Area Purpose No. Sanctuary 4 Construction of Wildwood Resort Gir 171.0 Hotel Hotel and Resort and Realities Pvt. Sanctuary 2 Ha. and in Gir ESZ. Ltd. Ahmedabad Resort Member Secretary informed that the site of the project starts from 400 meters from Gir Sanctuary. As per the Government of Gujarat, Forest & Environment Department Resolution No.WLP/102008/1827/W. dt.01.07.2015 existing policy of State Government Hotels and Resorts are not permitted within 1.00 km. Of Gir Sanctuary. Taking into the views of the members and after detail deliberation, it was decided not to recommend the project.
6. Thus, it appears that the State Wildlife Board is prima-facie of the view that the Project starts from 400 meters from the Gir Sanctuary and as per the existence Policy of the State Government, dated 01.07.2015 permissions to put up the Hotels and Resorts should not be granted within 1.00 k.m. from the Gir Sanctuary.
7. The controversy revolves around whether the objections taken by the State Wildlife Board are based on some cogent materials and appropriate inquiry in this regard.
8. In the aforesaid context, our attention has been drawn to the averments made in the grounds nos.F, G and K respectively of the memorandum of the writ-application. We quote as under:-
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(F) The impugned decision is taken by the State Board for
Wildlife on the basis of information supplied by Member Secretary i.e. Chief Wildlife Warden to the effect that the site of the project starts from 400 meters from Gir Sanctuary. The said statement does not seem to have been supported by any maps or details. Rejecting the proposal on the basis of such "information" without consideration of material in support and that too after all that which has happened for last 10 years, the efforts and investments made by the petitioners, is ex-facie highhanded, arbitrary and unreasonable.
(G) The impugned decision is taken on an assumption that the project starts from 400 meters from Gir Sanctuary and that as per the existing policy of the State Government dated 01.07.2015, hotels and resorts are not permitted within 1 km. from Gir Sanctuary.
(K) In any case, the project of the petitioners does not start from 400 meters from Gir Sanctuary. The area which is allotted/ purchased by the petitioners is earmarked in the map at Annexure AG, which shows that closest point of the beginning of the boundary of Gir Sanctuary is 1014 meters and not 400 meters as alleged. The decision is thus based on incorrect facts, shows complete non-application of mind and is required to be quashed and set aside on this ground alone.
9. We have heard Mr. Mihir Joshi, the learned senior counsel appearing for the writ-applications and Mr. Kamal Trivedi, the learned Advocate General appearing for the State respondents, more particularly, the respondent no.3 - the State Wildlife Board. According to Mr. Joshi, the objection raised by the State Wildlife Board is not well-founded. Mr. Joshi's client is in a position to explain to the Board that the land is not situated within 1.00 km. of the Gir Sanctuary. Mr. Joshi has materials in the form of maps etc., to indicate that it is far beyond the radius of 1.00 km.
10. Mr. Trivedi, the learned Advocate General responded to the Page 5 of 8 Downloaded on : Mon Sep 20 21:51:31 IST 2021 C/SCA/16573/2019 ORDER DATED: 17/09/2021 aforesaid submitting that the Board is ready and willing to undertake a fresh exercise in this regard provided the writ- applicants come forward with an appropriate representation or an application in this regard. Mr. Trivedi assures this Court that there should not be any difficulty on the part of the Board to look into a fresh what is proposed to be pointed out by the writ-applicants and undertake a fresh survey of the site of the Project.
11. Mr. Joshi, the learned senior counsel appearing for the writ- applicants has gone one step ahead. He submitted that assuming for the moment without admitting that some part of the land falls within 1.00 k.m. of the Gir Sanctuary, his clients are ready and willing to give up that part. He would submit that his clients are ready and willing even to put forward a fresh proposal with fresh plans in this regard.
12. We are of the view that everything hinges on the final recommendations of the Gujarat State Wildlife Board. Once the Gujarat State Wildlife Board recommends the project with an appropriate report in that regard, the next step in the process will have to be undertaken.
13. In view of the aforesaid, as on date, we propose to issue the following directions:-
(1) The writ-applicants shall at the earliest file an appropriate application or representation addressed to the State Wildlife Board explaining why the stance of the Board as regards the Project starting from 400 meters of Gir Sanctuary is Page 6 of 8 Downloaded on : Mon Sep 20 21:51:31 IST 2021 C/SCA/16573/2019 ORDER DATED: 17/09/2021 not correct.
(2) It shall be open for the writ-applicants to adduce necessary evidence/materials in this regard, which may include google maps etc. Once such application with the necessary evidence/materials is placed before the State Wildlife Board, the State Wildlife Board shall undertake a fresh exercise to ascertain whether any part of the land of the Project falls within the Gir Sanctuary or not. For this purpose, the assistance of the writ-applicants shall be surely taken.
14. Mr. Trivedi pointed out that there is a revised proposal pending with the respondent no.4 for the consideration of the grant of Environmental Clearance. We are of the view that simultaneously the respondent no.4 should also consider the revised proposal at the earliest for the grant of Environmental Clearance and take an appropriate decision.
15. Let the entire aforesaid exercise be undertaken at the earliest and appropriate decision shall be taken in the very first meeting of the State Wildlife Board, which may be convened in near future. We are of the view that the writ-applicants should know where they stand and such Projects should not be kept in limbo, more particularly, when a huge amount is already invested. It does not serve any good purpose to keep all such decisions pending for an indefinite period of time. This is the only concern of the Court.
16. The necessary application shall be addressed to the Deputy Page 7 of 8 Downloaded on : Mon Sep 20 21:51:31 IST 2021 C/SCA/16573/2019 ORDER DATED: 17/09/2021 Conservator of Forest, Gir (East Division), Head Quarter at Dhari . Let the exercise at the end of the respondents begin at the earliest.
We have heard this matter for quite sometime, therefore, we treated this matter as Part-heard. To be notified before this very Bench.
Post the matter on 22.10.2021.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) A. B. VAGHELA Page 8 of 8 Downloaded on : Mon Sep 20 21:51:31 IST 2021