Judgment and Order (Oral)
1. Grievance raised and reliefs sought for in both the writ petitions being identical, those were heard together and are being disposed of by this common judgment.
2. Facts of both the cases may be briefly noticed.
WP(C) No. 8453/2003
3. Case of the petitioners is that since the days of their forefathers, they have been rearing livestock, cattle etc. along the northern bank of the river Brahmaputra on the alluvial lands called chars/chaporis. Such chars and chaporis are included in the assembly constituencies under Behali, Gohpur and Bishwanath circles of Sonitpur district. They were also granted grazing permits by the State Government authorities. For grazing their cattle, petitioners had built thatched bamboo sheds called âKhutisâ on the grazing lands for providing food and shelter to the livestock. Those âKhutisâ are not permanent structure.
4. On 10-09-1985, a preliminary notification was published u/s 35(1) of the Wildlife Protection Act, 1972 (Act) declaring the intention to extend the boundary of Kaziranga National Park beyond its natural boundary, which is the south bank of the river Brahmaputra, to the north bank of the river Brahmaputra. The proposed extension is the sixth addition to the boundary of Kaziranga National Park and an area of 401.5 sq.km was proposed to be covered in the sixth addition. The proposed sixth addition includes the lands on which the petitioners have been grazing their cattle.
5. Pursuant to the aforesaid notification, Commissioner, Northern Assam Division was appointed as Collector-cum-Inquiry Officer to inquire into and determine the existence, nature and extent of any right or claim which exist or alleged to exist in favour of any person or persons in or over any area within the proposed extension.
6. Commissioner of Northern Assam Division published notice only in English language inviting objections from the affected persons within a period of two months. Such notice was also not widely circulated. Consequently, only few people could file objections. But no decision was taken by the Commissioner.
7. After some time, the issue of eviction of petitioners and others again resurfaced which led to a hue and cry. On 17-12-1997, the Circle Officer, Biswanath Circle alongwith the Divisional Forest Officer and Conservator of Forest visited the grazing fields of the petitioners and verbally asked them to vacate the land.
8. Faced with such a situation, petitioners and others submitted a representation dated 20-12-1997 before the Chief Minister of the State, who issued direction not to evict the petitioners for two months.
9. Petitioners have filed the present writ petition for quashing of the preliminary notification dated 10-09-1985 and for a direction to the respondents not to carry out any eviction operation in the district of Sonitpur pursuant to the aforesaid notification.
10. Contention of the petitioners is that the respondents were trying to evict them from their grazing lands without giving them any notice and without affording any reasonable opportunity of hearing to the petitioners. The threatened eviction of the petitioners is in violation of the provisions of the Act, they contend.
WP(C) No.10279/2003
11. Petitioners in this case also claim to be engaged in cattle rearing in chars/chaporis under Borsola mouza of Sonitpur district bordering Darrang district. They claim that they had been granted grazing permits for grazing of cattle on grazing lands where they had constructed âKhutisâ.
12. On 10-09-1985, Government of Assam issued notification declaring some of the adjacent areas to be included within the Kaziranga National Park. According to the petitioners, their area is outside the areas notified in the said notification but adjacent to the Orang National Park. However, there is no notification to include these areas in the Orang National Park.
13. Inspite of the fact that petitioners area is not included within the areas covered by the notification dated 10-09-1985, they were threatened with eviction. They have also alleged harassment by local officials by forcefully taking away their cattle and selling them in the local panchayat markets.
14. Petitioners have filed the present writ petition seeking a direction to the respondents not to evict them without following the due process and also not to harass them by forcefully taking away their cattle.
Government Stand
15. Respondents have filed affidavit in WP(C) No.8453/2003. No affidavit has been filed in the other case. The said affidavit has been filed by the respondent No.5 i.e. Divisional Forest Officer, Eastern Assam Wildlife Division. It is stated that the complex of wetlands, grasslands and woodlands of Kaziranga are in a dynamic state. Annual floods and changing river courses largely influence these complexes. Considering the long term conservation of this immense biological wealth, the State Government felt the need for constituting the adjacent areas of the Kaziranga National Park as a separate national park comprising of the main channels and islands called chaporis of the Brahmaputra river right from Dhansirimukh to Kaliabhumura bridge. Accordingly, the State Government declared its intention to constitute the land in question as sixth addition to Kaziranga National Park by issuing preliminary notification dated 10-09-1985 as per provision of Section 35 of the Act.
16. After issuance of the above notification, all procedures u/s 19 to 26 of the Act read with Section 35 thereof were strictly followed till declaration of final notification dated 07-08-1999. Petitioners are illegally using the national park area for rearing cattle by erecting âKhutisâ, which is in violation of Section 35(7) of the Act.
17. Further contention is that after publication of the preliminary notification on 10-09-1985, no grazing permits have been issued to any individual. The Commissioner, Northern Assam Division, who was appointed as Collector, enquired into the claims and disposed of seventeen objections. He found that none of the objectors had any right, title and privilege in the entire area proposed as sixth addition to Kaziranga National Park. All the contentions of the petitioners have been denied. It is further stated that the Collector had issued notice in Assamese language, which was given wide circulation. It is also stated that in the preliminary notification as well as in the subsequent notification, the sixth addition to Kaziranga National Park is not an extension of existing Kaziranga National Park but a separate national park with separate boundary descriptions and with a separate identity. It is asserted that petitioners are unauthorized and illegal occupants of the national park area. Therefore, they are liable to be evicted.
18. There is no representation on behalf of the petitioners in WP(C) No.8453/2003. Dr. B. Ahmed, learned Counsel for the petitioners in WP(C) No.10279/2003, however, advanced his arguments on behalf of the petitioners in the second case. Main thrust of his submission is the long possession of the petitioners over the lands in question. According to the learned Counsel, petitioners have been rearing cattle over the lands in question since the days of their forefathers. Their lands are outside the schedule area of the sixth addition to Kaziranga National Park as per the preliminary notification dated 10-09-1985 issued u/s 35 of the Act. Though their lands are situated adjacent to the Orang National Park, no such notification u/s 35 of the Act has been issued to expand the area of Orang National Park. Therefore, they cannot be evicted from their lands. In any case, without putting the petitioners on notice and without giving them an opportunity of hearing, petitioners cannot be evicted or harassed by the local authorities by forcefully taking away their cattle and threatening eviction. Intervention of the Court has, therefore, become necessary, he submits.
19. Ms. M. Goswami, learned Government Advocate, Assam appeared for the respondents. She supports the stand taken by the respondent No.5 in WP(C) No.8453/2003 and submits that there is no merit in the claim of the petitioners. She seeks dismissal of the writ petitions. Though this Court directed production of record, the same could not be produced.
20. Before examining the claim of the petitioners, a brief reference to the relevant provisions of the Act is considered necessary.
21. The Act has been framed to provide for protection of wild animals, birds and plants and for all matters connected therewith or ancillary and incidental thereto with a view to ensuring ecological and environmental security of the country. Chapter IV deals with protected area. While Section 18 to Section 34 A deal with sanctuaries, Section 35 deals with national parks. As per Section 35(1), whenever it appears to the State Government that an area needs to be constituted as a national park for the purpose of protecting, propagating or developing wildlife therein or its environment, it may by notification declare its intention to constitute such area as a national park. Such notification should define the limits of the area which is intended to be declared as a national park. As per Sub-section (3), where any area is intended to be declared as a national park, the provisions of Sections 19 to 26 A of the Act (both inclusive) shall apply, except clause (c) of Sub-section (2) of Section 24, which allows continuation of any right of any person over any land within the limits of a notified sanctuary in consultation with the Chief Wildlife Warden.
22. Under Sub-section (4), once the period for preferring claims has lapsed and all claims made relating to any land in the area intended to be declared as a national park have been disposed of by the State Government and all rights in respect of lands have become vested in the State Government, the State Government shall publish a notification specifying the limits and the area of the national park and declare such area to be a national park on and from such date as may be specified.
23. Sub-section (5) provides that no alteration of the boundaries of a national park by the State Government shall be made except on a recommendation of the National Board for Wildlife.
24. Grazing of livestock and entry of livestock is prohibited in a national park.
25. Sections 19 to 26 A of the Act, which are also applicable in respect of sanctuaries, deal with determination of the existence, nature and extent of the rights of any person in or over the lands comprised within the limits of a national park. It also deals with issuance of proclamation by the Collector and acquisition of rights in which case certain provisions of the Land Acquisition Act, 1894 would also be applicable.
26. Thus, a careful reading of the aforesaid provisions would indicate that procedural safeguards are inbuilt within the provisions of the Act in the event of any declaration of intent to constitute an area as national park.
27. In WP(C) No.8453/2003, clear stand taken by respondent No.5 is that it was decided by the State Government to constitute the adjacent areas of Kaziranga National Park as a separate national park comprising of the main channels and islands called chaporis of the Brahmaputra river right from Dhansirimukh to Kaliabhumura bridge. Accordingly, the State Government issued preliminary notification dated 10-09-1985 u/s 35 of the Act declaring its intention to constitute the land in question as sixth addition to Kaziranga National Park. The said respondent has further asserted that after issuance of the preliminary notification, all the procedures from Section 19 to Section 26 of the Act read with Section 35 thereof were strictly followed till declaration of final notification dated 07-08-1999. As already notice above, all other contentions raised by the petitioners have been denied. This affidavit was filed way back on 12-12-2006. No rejoinder has been filed by the petitioners thereafter.
28. In view of the clear stand taken by respondent No.5 which has remained uncontroverted, Court is of the view that no case for interference with the Government notification dated 10-09-1985 has been made out. As final notification has been issued on 07-08-1999 declaring the area described in the schedule thereto as sixth addition to Kaziranga National Park, petitioners cannot claim any right of grazing within such area.
29. WP(C) No.8453/2003 is devoid of any merit, which is accordingly dismissed.
30. In so far WP(C) No.10279/2003 is concerned, the claim of the petitioners that their lands are outside the area which has been declared as sixth addition to Kaziranga National Park and that those are adjacent to Orang National Park would require factual scrutiny, which exercise this Court in a proceeding under article 226 of the Constitution of India is not inclined to undertake. Since formal declaration has already been made declaring the scheduled area as sixth addition to the Kaziranga National Park, petitioners cannot claim any grazing right or any other right in relation to such land. However, in the event, there is any expansion or alteration of the boundary of Orang National Park, they would certainly be entitled to the procedural safeguards under the Act as noticed above. In any case, if the petitioners are found to be encroachers over Government land, even if such lands are not included in any national park, it will be open to the authorities to take necessary steps for their eviction in accordance with law. Beyond the above, no further order is called for in this proceeding. WP(C) No.10279/2003 is disposed of accordingly.
31. Interim orders passed in both the cases are vacated.