Gujarat High Court
Prakash Kapadia President Of Jagega ... vs State Of Gujarat & 5....Opponent(S) on 17 September, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, J.B.Pardiwala
C/WPPIL/166/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 166 of 2011
With
CIVIL APPLICATION NO. 1284 of 2013
In WRIT PETITION (PIL) NO. 166 of 2011
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PRAKASH KAPADIA PRESIDENT OF JAGEGA GUJARAT
SANGHARSH....Applicant(s)
Versus
STATE OF GUJARAT & 5....Opponent(s)
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Appearance:
RC JANI & ASSOCIATE, ADVOCATE for the Applicant(s) No. 1
MR VANDAN BAXI, AGP for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/09/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) The petitioner in this public interest litigation has taken up the cause against the cutting of large number of trees for expansion of Sanand-Nalsarovar road.
It is undisputed that at a short distance of the city of Ahmedabad, Sanand town is located. From Sanand, at a distance of approximately 42 kilometers, a large fresh water Page 1 of 8 C/WPPIL/166/2011 ORDER lake by the name 'Nalsarovar' is situated. It covers an area of approximately 120 sq.kilometers. It sustains a large population of domestic birds and is also a site where several species of migratory birds spend the winter months. It is undoubtedly the most important bird sanctuary in the State. Large number of tourists, domestic as well as international, visit the site, particularly, in the winter months. It is a delite for amateur bird watchers and keen ornithologists. The official website of the Forests and Environment Department, Government of Gujarat, gives the following details about Nalsarovar :
"Nalsarovar Bird Sanctuary is a spectacular natural lake with shallow waters and muddy lagoons, dotted by 360 islets. It offers an ideal wintering ground for thousands of migratory birds. These birds travel tiring lengths from Central Asia, Europe and Siberia to escape from severe cold of harsh winter there. In addition to migratory birds, many resident as well as local migratory birds also visit this place. This lake and the wetlands around it were declared a bird sanctuary in April, 1969. It is thrilling to canoe through such shallow water and come very close to the flocks of pelicans, large groups of flamingoes and coots and different types of ducks. Migratory birds start arriving here in October and stay till April. Their population reaches its peak in mid winter. There are 360 islets in the lake. Most of them lie exposed when the water level is low. The lake gets filled with water that drains from the adjoining Surendranagar and Ahmedabad districts in the monsoon. With this fresh water inflow, brackishness in the lake is reduced considerably. The sheer number of birds that is encountered in this beautiful place leaves the bird-watchers spellbound. As you move towards the islets through the sedges and aquatic grass, you hear sudden fluttering of thousands of birds. Both the flamingoes i.e. Lesser and Greater inhabit Nalsarovar. The former frequents the sanctuary during Page 2 of 8 C/WPPIL/166/2011 ORDER monsoon and post monsoon periods whereas the latter becomes abundant as the salinity increases after the monsoon. A very significant conservation value of Nalsarovar lies in its large congregation of important birds such as Grey-lag geese, Open-bill stork, Glossy ibis, Coots, Cranes etc. It is also noteworthy that of the three species of pelicans in India, the two species viz. Rosy and Dalmatian pelicans are found here.
Flora The sanctuary area has 48 species of algae and 72 species of flowering plants. The common aquatic plants are Cyperus sp., Scirpus sp., Typha ungustata, Eleocharis palustris, Ruppia, Potamogeton, Vallisnaria, Naias, Chara etc. Founa Important birds - The sanctuary has about 250 bird species, which include greater and lesser flamingoes, pelicans, ducks & geese, rails, coots, cranes, cormorants, herons, egrets, storks, ibises, spoonbills, teals, sarus cranes, moorhens and waders etc. Other animals - On southern or southwestern fringes, small herds of wild ass can be seen. Mongoose, jungle cat, Indian fox, jackal, wolf and hyena are also there."
The website of the Gujarat Tourism gives the following information about it :
"Information about Nalsarovar Bird Sanctuary:
Nalsarovar Bird Sanctuary is situated about 60 kms. south west of Ahmedabad. Nalsarovar Bird Sanctuary is the famous bird sanctuary in Gujarat. The Nalsarovar lake is a seasonal lake spread over an area of 115 square km. This extensive lake is surrounded by the iron flat plains and is known for its water birds.
Attractions in the Nalsarovar Bird Sanctuary: About thousand species of birds like flamingoes and other water birds migrate in the Nalsarovar Bird Sanctuary during winter. Some indigenous species of Page 3 of 8 C/WPPIL/166/2011 ORDER birds also come here after breeding. Various variety of birds like kingfishers, egrets, darters, storks, cormorants, jacanas, moorhens, coots, grebes and ducks can be seen in the Nalsarovar Bird Sanctuary.
Best time to visit the Nalsarovar Bird Sanctuary: The Nalsarovar Bird Sanctuary is open from November to February, but the best time to visit this sanctuary is in the months of December and January. Ducks, Geese, Pelicans and flamingoes can be best seen early in the morning and evening. The sanctuary is busiest at weekends and on holidays. To see the birds, it is best to hire a boat for a few hours with a guide.
How to reach Nalsarovar Bird Sanctuary: The Nalsarovar Bird Sanctuary can be easily reached from Ahmedabad, which is about 60 kms. away. "
The webside of "Lonely Planet" perhaps the publishers of most widely read travel guides by the name "Lonely Planet"
says this for Nalsarovar :
"This 116 sq.km late [Nal Sarovar], located some 60 km sout-west of Ahmedabad, is a flood of ceaseless blue dissolving into the sky, surrounded by iron-flat plains. Between November and February, the sanctuary sees flocks of indigenous and migratory birds with as many as 250 species passing through the park. Ducks, geese, pelicans and flamingos are best seen early in the morning (aim for 5.30 am) and in the evening."
The issue is about the widening of the road between Sanand and Nalsarovar. According to the State authorities, the existing 10-meter wide road was insufficient to carry on the traffic load. The road expansion was, therefore, proposed by Page 4 of 8 C/WPPIL/166/2011 ORDER widening the road by 3-meters on either side. In the process, according to the petitioner, large number of old trees would have to be cut down. Though there is some difference in the number of trees that would have to be sacrificed, the State authorities also agree that the road widening proposal carried the proposal for cutting down many trees along the road side.
From the affidavit-in-reply dated 14th December 2011 filed by one Shri Jayant Rameshchandra Thaker, Executive Engineer, Road & Building Division, Ahmedabad, it emerges that for the road widening project, there was a proposal to cut 2616 trees out of the existing 6491 trees, constituting about 40% of the existing trees. Curiously, the affidavit suggests that out of these trees, 1490 number of trees are 'ganda baval' and 'rest of useful trees' are only 1126 in numbers. We fail to discern the reason for the distinction between the 'useful trees' and the others. The deponent has not given any further elaboration on this score.
Be that as it may, it is now pointed out to us that barring half a kilometer long section of the road starting from Sanand town where the road had to be widened more than the rest of the section, no trees have been cut. It is stated that the road widening is complete and has been carried out till the point Page 5 of 8 C/WPPIL/166/2011 ORDER where 9.2 kilometer distance is left before Nalsarovar. We are informed that this last section is not under any proposal for road widening.
Now that the road widening is complete, without taking the toll of large number of trees, we do not propose to take any further action in this public interest litigation. Learned AGP, however, submitted that presently the trees have been saved by adding a shoulder on either side of the road without cutting the trees which come very close to the widened road. This, by itself, may be some times dangerous to the traffic. The Government has moved the proposal to the Forest Department of the Union of India for permission to cut some of these trees. We expect that the State Government and the Union of India both would take utmost care to ensure that fewest possible trees are removed if at all it is necessary to do so, particularly, bearing in mind that the road in question is close to the bird sanctuary and it is not unknown that large number of domestic and migratory birds would be parching on roadside trees surrounding the lake and would not confine their movements only to the lake area.
Before closing, we may notice some of the disturbing aspects of the matter. In the above noted affidavit, the Page 6 of 8 C/WPPIL/166/2011 ORDER deponent, in order to justify the road widening, in addition to pointing out the existing and the projected vehicular density, has also stated that, "...this road is also connecting pravasan place Nalsarovar Bird Sanctuary. There are number of residential plotting schemes as well as farmhouses along this road. This road is also an important link connecting international-standard Golf Course, Golf Club and Nalsarovar Bird Sanctuary Tourist destination".
We are seriously concerned about the priorities indicated in this affidavit. When by all accounts, all care should be aimed at preserving and protecting a rare priceless bird sanctuary of international importance as Nalsarovar, what is suggested is that, the road widening, even at the cost of large number of existing trees, is necessary, since on the roadside there are residential plotting schemes as well as farmhouse schemes and the road is an important link connecting international- standard Golf Course, Golf Club and the National Bird Sanctuary. We do understand that a Golf Course and Golf Club may have a place in modern India, but we wonder, whether they should be at the cost of the bird sanctuaries and wild life sanctuaries.
Page 7 of 8
C/WPPIL/166/2011 ORDER This order shall be placed before the Ministry of Environment and Forests, Union of India, if the State Government wishes to pursue its request for cutting down any of the trees on the road side. With these observations, this writ-application is disposed of.
In view of the order passed in the main matter, the Civil Application does not survive.
(AKIL KURESHI, J.) (J.B.PARDIWALA, J.) MOIN Page 8 of 8