R.P. Sethi, C.J.
1. With the proclaimed object of protecting the wildlife and preserving the ecology, the respondents alleged the violation of The Wildlife (Protection) Act, 1972, hereinafter called the 'Wildlife Act' and the Forest (Conservation) Act, 1980, hereinafter called as the 'Forest Act', and filed the writ petition challenging the validity of various Government Orders culminating in the lease deed at Annexure-F, contending that the same was illegal, void and inoperative. It was prayed that direction be issued to the respondents to forbear from taking up any project for non-forest purpose within the Rajiv Gandhi National Park, Nagarahole, and to direct the respondents to forthwith take all measures to restore the source of livelihood to the displaced tribals of Nagarhole National Park and to involve them in enriching the bio-culture of the National Park. The writ petition was allowed with the direction to the appellants in W.A. No. 1333 of 1997, M/s. Gateway Hotels and Gateway Resorts Limited, to immediately stop all the activities on the forest land in question and hand-over its possession to the State Government, vide the order impugned in these appeals.
2. Most of the facts are not in dispute between the parties. The pointsof law requiring adjudication also revolve around the interpretation ofthe various provisions of the Acts referred to above. A specified area inNagarhole forest which was a royal hunting preserve was declared aSanctuary on 2-7-1955. On 4-2-1975, a declaration of intention to constitute the area into a National Park under the Wildlife Act was issuedvide G.O. No. FD 14 FWL. The Government accorded sanction to thetransfer of saw mills and workshop in Murukal on 27-3-1975. Finaldeclaration of the area as the Nagarahole National Park in terms ofSection 35 of the Wildlife Act was issued on 16-3-1983. It is submittedthat the land in question was treated as an equity share of the Karnataka State Forest Industries Corporation Limited (KSFIC) on 14-9-1984. The Karnataka Forest Development Corporation (KFDC) decidedto construct boarding and lodging facilities at Murukal, vide its decisiondated 27-11-1985. It is alleged that without any Government Order oftransferring the land from KSFIC to KFDC, certain buildings weretaken over by the latter on 1-7-1987. Establishment of reception centrein the aforesaid area was approved by the Government on 10-4-1987.The reception centre was to be established at a cost of Rs. 175 lakhs bythe Karnataka State Forest Development Corporation. The notified areaof the National Park was increased vide revised notification of 8-12-1988. Tenders were called for running the complex set up by the KFDCon 8-9-1989, presumably in view of the supposed lack of expertise to runhotels. The highest offer was made by M/s. East India Hotels, a subsidiary of Oberoi Hotels, vide its offer dated 21-7-1990. The KFDC soughtthe approval of the Government to lease the area to Oberoi on 12-11-1990. Vide G.O. No. AHFF 220 FPC 87, dated 19-11-1990, ownership ofthe open space and buildings in relation to the property at Murukal wastransferred in favour of KSFIC. On 8-1-1991 the Oberoi Hotels withdrewtheir offer. At this stage the Forest Minister, at the request of the TajHotels, increased the amount and Taj became the highest bidder. On2-3-1991 the KFDC sought approval to lease out the complex to theappellant-hotels. Upon negotiations it was decided that the lease wouldbe for a period of 18 years. Ultimately, the lease was approved in favourof appellant-hotels on 21-7-1992. On 25-6-1994 lease agreement was registered in favour of the appellant-hotels putting them in possession ofsuper deluxe cottages which were earlier in possession of KFDC. Theconstruction and renovation of the wild lands resort began in February1996. Thereafter various steps were taken in the form of public protestsand dharnas to ensure that the work did not continue in pursuance ofthe impugned orders and the lease executed in favour of the appellant-hotels.
3. In their writ petition the respondents had alleged that the Nagarahole National Park was the home land of elephants, four horned antelope and gaurs, sloth bear, leopard, giant squirrel, adjutant stork, Malabar pied hornbill, Shahin falcon, etc. The National Park is stated to be the homeland of several tribals like the Jenukurubas, Bettakurubas, Yeravas and Panivars. All these tribals are stated to have been displaced after the park was declared as National Park and have not yetbeen provided with any alternative site or means of livelihood. It was contended that as a result of social and cultural uproot the tribals lost their habitats, their source of inspiration, their culture and their very livelihood. It was alleged that like the endangered species of the park, the tribals had also become dwindling human stock and were nearly facing extinction. The project was said to have been conceived and proceeded in a highly secret manner. Pursuant to the impugned project, the appellants are alleged to have started laying new roads to provide access to every nook and corner of the National Park through motor vehicles which was alleged to be a serious source of criminal activity to enable poaching of the wildlife and clandestine removal of forest produce. The impugned project was for a non-forest purpose and had been undertaken despite the total prohibition against such projects under the law applicable in the case. The respondents were alleged to have not taken prior approval of the Central Government before venturing on the project as required under Section 2 of the Forest Act. It was submitted that under Section 35 of the Wildlife Act, a National Park was entitled to all the protections which were available to a Sanctuary under Sections 27, 28, 32, 33, 33-A and 34 of the said Act. A 3-star hotel as the appellant intend to start was stated to be totally prohibited. Commissioning of star hotel or Holiday Resorts was termed to be a non-forest purpose. No forest land in violation of the law could be assigned by way of lease or otherwise to any private person. The appellants are alleged to be not an organisation owned, managed or controlled by the Government. The impugned action was alleged to be ultra vires of Section 2 of the Forest Act. The action of the respondent was also alleged to be in violation of the provisions of Section 3 of the Environment (Protection) Act read with Rule 5 (v and viii) of the Environment Protection Rules. Displacing the tribals from the national Park or providing holiday resort was alleged to be a serious violation of Constitutional guarantee to the tribals as enshrined under Article 21 of the Constitution. The action of the appellants was termed to be posing a threat to the flora and fauna of the National Park. The action of the authorities was alleged to be arbitrary, capricious, and whimsical besides being violative of the fundamental rights as enshrined in Article 14 of the Constitution. It was further contended that there were sufficient number of Government lodges and holiday resorts around the National Park and more resorts were likely to put unnecessary pressure on the resources of the park.
4. The State of Karnataka, in their reply, submitted that the writ petition at the instance of the petitioners was not maintainable as no instance of any infringement of legal rights either of the petitioners or of the general public had been brought to the notice of the Government. As the tribals' interest were stated to have been adequately protected and safeguarded by the State, the writ petition was termed to be espousing an illusory cause. The writ petition was also alleged to be not maintainable on account of unexplained delay and laches. It was submitted that the impugned action was initiated about 40 years back and there had been continuous activity of higher commercial importance like saw-mills etc. Since 1986 the activities had turned eco-friendly. Renovation tookplace between 1986 and 1989 without any objection from any quarter. In view of the efficacious statutory remedy under Sections 50 and 58 of the Wildlife Act, the writ petition was not maintainable. The impugned action was proclaimed to be undertaken in the tourism zone of the National Park. It was submitted that the management of the Sanctuary also included promotion of eco-tourism and for that purpose all National Parks and Sanctuaries the world over had zones called core zones, corridor or buffer zones and tourism zones. The eco-tourism had an objective to create awareness and appreciation about the need to protect the wildlife and the forests among the people, which was an essential prerequisite for conservation of biodiversity in nature. The impugned tourism activity did not in any manner cause peril either to the culture or source of livelihood of the tribals or environment in the area. No damage was alleged to have been caused to the bio-culture of the park. Initially, the site of the project consisted of a saw mill and wood working unit belonging to the Forest Department. The department handed over the running of the sawmill and wood working unit to M/s. KSFIC Limited which was a Government owned Corporation. When the Nagarahole Wildlife Sanctuary was created, the unit was situated in the tourism zone of the Sanctuary. In the year 1983 the said Sanctuary was constituted as the National Park. The sawmill was thereafter decided to be removed from the area. To promote eco-tourism the Government decided to handover the site to KFDC which is also a Government-run-Corporation. The KFDC put up a few structures apart from already existing staff quarters of the sawmill, with the intention to start boarding and lodging facilities to the Wildlife lovers. Subsequently, the Government decided to reimburse the entire expenditure incurred by the KSFIC and KFDC and resumed the entire control under the department. Need was felt for professional expertise which prompted the State to lease the complex to run hotels through professionals under an agreement containing detailed terms and conditions. The development of eco-tourism in the Nagarahole forest was necessitated on account of approximate visit of 30,000 people in a year. On public demand it was decided that an eco-friendly tourist accommodation be established at the building which once housed the sawmill. The lease in favour of the appellant-hotel was only to renovate, refurnish and run the hotel without conferment of any right in the property. The allegations regarding making provisions of roads to every nook and corner of the National Park was vehemently denied. The allegation that the tribals and other forest dwellers had forcibly been evicted from the park were termed to be totally false and incorrect. The schedule area was stated to be situated in the tourism area outside the core area. No activities causing pollution had been undertaken as part of the project. The project was intended to encourage non-consumptive use of forestry which was one of the activities integral to scientific forestry, and could not be termed as a non-forest activity. When the KFDC constructed the complex in the place of sawmill for the purpose of development of eco-tourism, neither the petitioners nor the tribals were stated to have raised any objection or moved to stop the project from coming up. After the declaration of the area as NationalPark no tribals had been forcibly evicted or displaced from their original place of dwelling or habitat as alleged by the petitioner. The petitioner's contention that the bio-culture of the park and natural resources were the property of the State or a sect was denied. It was submitted that international covenants declared bio-diversity as the common heritage of mankind. The State Government claimed to have spent huge amounts in reimbursing the KSFIC and KFDC before leasing the property to the appellant-hotel. The appellant-hotel was expected to improve the complex, run the same and pay rentals to the Government to the tune of Rs. 424.75 lakhs over a period of 18 years. No fundamental or legal right was stated to have been violated requiring interference.
5. In their separate statement of objections the appellants submitted that the writ petition was misconceived and liable to be dismissed. The schedule properties were in existence in different forms for the last about 40 years when they were taken over by the appellants for the purpose of renovation and have provided additional internal amenities for the wildlife lovers who were likely to visit the National park. The writ petition was alleged to be suffering from unexplained delay and laches. Most of the facts as alleged by the petitioner, or as stated by the respondent 1, were admitted. The apprehension of the writ petitioners that the wildlife would not be protected or that the forest would be destroyed were emphatically denied. It was submitted that neither the appellant nor its guests would be permitted to do anything in the National Park. The alleged violation of the mandatory provisions of law was termed to be misleading, besides being false. The apprehension regarding the displacement of the locals in the National Park were contradicted and it was submitted that the establishment of the appellants project was likely to help not only the outsiders but also the local people by providing them employment directly or indirectly. The appellants were taking steps for educating the locals regarding the cleanliness, hygiene, etc. The petitioners were not entitled to challenge the declaration of the forest as National Park in the year 1983. The local people were said to have welcomed the project. It was submitted that the appellants had not done any damage, much less extensive damage, as alleged, to the bio-culture of the Park. No forest dwellers had been forcibly evicted from the National Park. The petitioner's apprehension that the appellants would cause grave nuisance to the flora and fauna of the area was termed to be unfounded. Similarly, the apprehension regarding the use of generator was stated to be unwarranted because the appellants did not propose to use the generator but to mobilise the power from the regular KEB supply channel only. The generator was likely to be used only in the event of failure of power supply by the KEB and while using the generator for the said purpose every possible care was to be taken to keep the air pollution and noise pollution strictly within the permissible limits. It was submitted that the DG set would be installed in a separate chamber, and the exhaust gases emitted by the DG set would be treated before being discharged into the atmosphere through tall chimneys. The DG set was claimed to have been acoustically treated with sound prohibition materials and special doors and soundproof atmosphere was beingcreated besides providing additional residential silencer. No waste material would be thrown in the forest. Organic food waste was to be put into vermi culture pit and by natural process it was to be converted into organic manure. All bio-non-degradable materials like plastic, glass bottles etc., were to be minimised and used by taking all safeguards and precautions. The protection and retention of ecological atmosphere was claimed to, be in the interest and for the success of the project of the appellants. The destruction of the park was surely to destroy the project itself. It was submitted that the business prudence demanded that the project should enrich the bio-culture of the Park besides keeping it in a healthy state to attract more wildlife lovers. The project was stated to be not for a non-forest purpose. The appellants proposed to provide educational materials on the wildlife and nature conservation, to the people in general and visitors in the park in particular. Such activities were likely to bring about tremendous awareness among the visitors of the National Park, to built up a strong interest/pressure group for the conservation of wildlife. No tree had been cut by the respondents. No construction in violation of the provisions of the lease deed was being made. The whole of the adventure of the State and the project of the appellants was in accordance with the Wildlife Act and the Forest Act. The petition was termed to be misconceived and liable to be rejected.
6. We have heard the learned Counsel for the parties at length and perused the relevant records.
7. Agreeing with the contention of the writ petitioners, the learned Single Judge held that a conjoined reading of Sections 20 and 35(3) of the Wildlife Act put restrictions on acquisition of any right in, on or over the land comprised within the limits of the area of the National Park except by succession, testamentary or intestate. He held that after the date of declaration by the State Government of its intention to declare any area as a National Park under Section 35(1) of the Act, no one could acquire any right in, on or over the land comprised therein either by way of transfer within the meaning of the Transfer of Property Act or by easement or licence as understood under the Easement Act. It has vehemently been argued that the finding of the learned Single Judge was contrary to the provisions of law as the Act did not put an absolute bar on acquisition of rights with respect to an area comprising of the National Park. It was further submitted that Section 20 of the Act was not applicable in the circumstances of the case. Section 20 was stated to be prohibiting the transfer of interest of private individuals pending settlement of compensation payable to him consequent upon the land vesting in the Government on the area being declared as National Park and as no such land was involved in the present case, there was no question of acquisition of any right over the land.
8. In order to appreciate the rival contentions of the parties, it is necessary to have a general glimpse of the law relating to the Wildlife culminating in the passing of the Wildlife Act of 1972. Ancient history of our country reveals that Kings like Ashoka had enacted laws for the preservation of wildlife and environment. The first codified law wasenacted in the year 1887 in the form of the Wild Birds Protection Act, 1887 (Act No. 10 of 1887) which enabled the Government to frame rules prohibiting possession or sale of any kind of specified wild birds which had been killed or taken during the breeding season. In the year 1912 another Act named Wild Birds and Animals Protection Act, 1912 (Act No. 8 of 1912) was enacted, which was later on amended in the year 1935. The first comprehensive legislation relating to the wildlife was passed, in the form of the present Wildlife Act, in the year 1972, which received the assent of the President of India on 9th September, 1972. It may be noticed that the legislation with respect to the subject of wildlife was covered by Entry No. 20 of the State List in the VII Schedule and the Parliament had no jurisdiction to pass the law unless the legislatures of two or more States passed resolutions in pursuance of Article 252 of the Constitution empowering the Parliament to pass the necessary legislation on the subject. The legislatures of various States passed the resolutions authorising the Union Legislature to pass and enact the law to provide for protection of wild animals, birds and plants and for matters connected therewith or ancillary or incidental thereto. The Act was initially extended to some States only, but was made applicable to the whole of India except the State of Jammu and Kashmir vide Act No. 44 of 1991 with effect from 2-10-1991.
9. In the statement of objects and reasons of the Wildlife (Protection) Act, 1972, it was declared:
'The rapid decline of India's wild animals and birds, one of the richest and most varied in the world, has been a cause of grave concern. Some wild animals and birds have already become extinct in this country and others are in the danger of being so. Areas which were once teeming with wildlife have become devoid of it and even in Sanctuaries and National Parks the protection afforded to wildlife needs to be improved. The Wild Birds and Animals Protection Act, 1912 (8 of 1912) has become completely outmoded. The existing State laws are not only outdated but provide punishments which are not commensurate with the offence and financial benefits which accrue from poaching and trade in wildlife produce. Further, such laws mainly relate to control of hunting and do not emphasise the other factors which are also prime reasons for the decline of India's wildlife, namely, taxidermy and trade in wildlife and products derived therefrom.
2. Having considered the relevant local provisions existing in the States, the Government came to the conclusion that these are neither adequate nor satisfactory. There is, therefore, an urgent need for introducing a comprehensive legislation, which would provide for the protection of wild animals and birds and for all matters connected therewith or ancillary and incidental thereto'.
10. In the Statement of Objects and Reasons of the Wildlife (Protection) (Amendment) Act No. 23 of 1982, it was stated-
'The Wildlife (Protection) Act, 1972 (53 of 1972) provides for the protection of wild animals and birds and for matters connected therewith or ancillary thereto.
2. Under the present scheme of the aforesaid Act, wild animals specified in Schedule-I of the Act cannot be hunted by any person except as provided in Sections 11 and 12 for specific purposes. There is no provision, at present, for permitting capture and translocation of wild animals for scientific management, which may, for instance, be necessary in the case of elephants for their population management or for introduction in alternative suitable habitat of endangered species like the Great Indian Rhinoceros and the Asiatic Lion. To achieve this purpose it is necessary to suitably amend Section 12 of the said Act with the stipulation that in the case of any wild animals specified in Schedule-I, the prior approval of the Central Government, and in the case of other wild animals, the prior approval of the State Government would be necessary.
3. Section 44 of the Act relates to grant of licences for carrying on business in trophy and animal articles, and the time within which applications for such licences may be made has been specified in sub-section (3) of this Section as 15 days from the commencement of the principal Act. As a result, no one can now apply for licences for carrying on business in trophy and animal articles. As such, persons who get in possession of trophy, and animal articles are constrained to carry on business with respect thereto in a clandestine manner. It is, therefore, proposed to omit the time limit of 15 days provided in sub-section (3) of Section 44. At the same time, it is also proposed to spell out expressly the more important guidelines which should be followed in granting licences under the section and confer power on the Central Government to specify by rules other guidelines'.
11. Chapter III of the Act deals with and prohibits hunting of wild animals, except under the circumstances as detailed in Section 11. Chapter III-A deals with protection of specified plants. Chapter-IV deals with Sanctuaries, National Parks and closed areas. For the purpose of adjudication of the pleas raised in the present case, an analysis of this chapter requires immediate attention. Section 18 as amended by Act No. 44 of 1991 authorises the State Government to declare its intention to constitute any area other than an area comprised within any reserve forest or the territorial waters as a Sanctuary if it considers that such area is of adequate ecological, fauna, floral, geomorphologic, natural or zoological significance for the purpose of protecting, propagating or developing wildlife or its environment. Such notification has to specify the situation and limits of the area. After the declaration under Section 18, the Collector is authorised to enquire into and determine the existence, nature and extent of the rights of any person in or over the land comprised within the limits of the Sanctuary, as is mandated by Section 19 of the Act. Section 20 prescribes that after the issue of the notificationunder Section 18, no right can be acquired in or over the land comprised within the limits of the area specified in such notification, except by acquisition, testamentary or intestate. Section 21 prescribes that when a notification has been issued under Section 18, the Collector shall publish in the regional language in every town and village in or in the neighbourhood of the area comprised therein, a proclamation specifying the situation and the limits of the Sanctuary and requiring any person claiming any right mentioned in Section 19 to prefer before the Collector, within two months from the date of such proclamation, a written claim in the prescribed form, specifying the nature and extent of such right with necessary details and the amount particulars of compensation if any claimed in respect thereof. Claims preferred under Section 21 are required to be enquired into by the Collector under Section 22 by resorting to the powers conferred upon him under Section 23 of the Act. Section 24 provides that in the case of a claim or right in or over any land referred to under Section 19, the Collector has to pass an order admitting or rejecting the same in whole or in part. Powers are conferred upon the Collector to acquire the land under Section 25. Section 29 authorises the Government to delegate the powers of the Collector upon any other officer as may be specified in the order passed by the Government. Section 26-A provides that after the claims preferred by any person or authority are disposed of, the State Government may declare the area as a Sanctuary. After any area is declared as Sanctuary, no person, other than those specified under Section 27 is entitled to enter or reside in the Sanctuary except under and in accordance with the conditions of a permit granted under Section 28 of the Act. Permits to enter or reside in a Sanctuary can be granted for the purposes of investigation or study of wildlife and purposes of ancillary or incidental thereto, photography, scientific research, tourism and transaction of lawful business with any person residing in the Sanctuary. Permit can be issued subject to such conditions and payment of such fee as may be prescribed, No person can destroy, exploit or remove any wildlife from the Sanctuary or destroy or damage the habitat of any wild animal or deprive any wild animal of its habitat within such Sanctuary except under and in accordance with the permit granted by the Chief Wildlife Warden. Causing fire, entry into Sanctuary with weapons, and use of injurious substances is prohibited by Sections 30, 31 and 32. Section 35 deals with the declaration of National Park and provides that where any area is intended to be declared as a National Park, the provisions of Sections 19 to 26-A of the Act shall, as far as may be, applicable to the investigation and determination of claims and extinguishment of rights in relation to any land in such area as they apply to the said matters in relation to any land in a Sanctuary. For the purpose of convenience the whole of the section is reproduced as hereunder:
'35. Declaration of National Parks.-
(1) Whenever it appears to the State Government that an area, whether within a Sanctuary or not, is, by reason of its ecological, faunal, floral, geomorphologic or zoological association or importance, needed to be constituted as a National Park for thepurpose 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:
Provided that where any part of the territorial waters is proposed to be included in such National Park, the provisions of Section 26-A shall, as far as may be, apply in relation to the declaration of a National Park as they apply in relation to the declaration of a Sanctuary.
(2) The notification referred to in sub-section (1) shall define the limits of the area which is intended to be declared as a National Park,
(3) Where any area is intended to be declared as a National Park, the provisions of Sections 19 and 26-A (both inclusive except clause (c) of sub-section (2) of Section 24) shall, as far as may be, apply to the investigation and determination of claims, and extinguishment of rights, in relation to any land in such area as they apply to the said matters in relation to any land in a Sanctuary.
(4) When the following events have occurred, namely:--
(a) the period for preferring claims has elapsed, and all claims, if any, made in relation to any land in an area intended to be declared as a National Park, have been disposed of by the State Government, and
(b) all rights in respect of lands proposed to be included in the National Park have become vested in the State Government,
the State Government shall publish a notification specifying the limits of the area which shall be comprised within the National Park and declare that the said area shall be a National Park on and from such date as may be specified in the notification.
(5) No alteration of the boundaries of a National Park shall be made except on a resolution passed by the Legislature of the State.
(6) No person shall destroy, exploit or remove any wildlife from a National Park or destroy or damage the habitat of any wild animal or deprive any wild animal of its habitat within such National Park except under and in accordance with a permit granted by the Chief Wildlife Warden and no such permit shall be granted unless the State Government, being satisfied that such destruction, exploitation or removal of wildlife from the National Park is necessary for the improvement and better management of wildlife therein, authorises the issue of such permit.
(7) No grazing of any livestock shall be permitted in National Park and no livestock shall be allowed to enter therein except where such livestock is used as a vehicle by a person authorised to enter such National Park.
(8) The provisions of Sections 27 and 28, Sections 30 to 32 (both inclusive) and clauses (a), (b) and (c) of Section 33, Section 33-A and Section 34 shall, as far as may be, apply in relation to a National Park as they apply in relation to a Sanctuary'.
12. Chapter IV-A deals with the Central Zoo Authority and Recognition of Zoos. Chapter V deals with trade or commerce in wild animals, animal articles and trophies. Chapter V-A provides prohibition of trade or commerce in trophies, animal articles, etc., derived from certain animals. Chapter VI deals with the prevention and detection of offences.
13. Section 35 of the Act makes the provisions of Sections 19 to 26-A applicable for the purposes of declaration of a National Park. An analytical look in provisions of Sections 19 to 26-A of the Act reveals that the investigation contemplated and the prohibition imposed relate to the period before the area is declared as a Sanctuary or a National Park. They do not deal with the situations emerging or arising after the declaration of an area as a Sanctuary or National Park. Specific provisions to deal with the situation after the declaration of Sanctuary or National Park are made in the other subsequent provisions of the Act. Section 20 of the Act cannot be picked up or isolated for the purpose of referring to a permanent bar of accrual of rights completely ignoring the context in which it is enacted and placed. Bar under Section 20 refers to such persons and authority who have any right in the area sought to be declared as a Sanctuary or National Park apparently with the object that by frequent transfers the purposes of the Act may not be defeated and declaration of the Sanctuary or the National Park be not protracted by having resort to the method of transfers of the land sought to be included in the Sanctuary or the National Park. The purpose and objects of Chapter-IV is only to facilitate the circumstances and prescribe procedure for lawfully declaring an area to be a Sanctuary or a National Park. The purposes of Section 20 cannot be stretched to the extent of holding that the mere declaration of the intention to hold an area as a Sanctuary or National Park puts a permanent restriction upon the land sought to be notified as such. If such an interpretation is accepted, the purposes of the Act would be defeated. Before the declaration of a Sanctuary or a National Park in terms of Section 26-A read with Section 35 of the Act, the situation remains uncertain and the rights of the parties in abeyance. The right to property cannot be taken away only by declaration and without resort to law as is the mandate of the Constitution under Article 300-A. Section 20 deals with the transitory period commencing from the date of declaration of the intention of the Government to declare an area as a Sanctuary or National Park till the date the area is declared as such in terms of Section 26-A read with Section 35 of the Act. If the extreme view, as propounded by the writ petitioners, is accepted, the purposes of the law would be defeated. Supposingly, in a case where the declaration with respect to an area is issued under Section 18 and no final notification is issued under Section 26-A or Section 35 of the Act, the land or the area in that event would continue to be under the bar of Section 20 without there being acquisition of the land in accordance with the law. In that event, the provisions of Sections 21 to 25would become redundant, and mere declaration under Section 18 would be deemed to be a notification of an area as a Sanctuary or National Park with restrictions as contemplated under Section 20 of the Act. The facts of the case, earlier noted, would show that the specified area in the Nagarahole was declared as a Sanctuary on 2-7-1955 and intended to be declared as National Park on 4-2-1975. Final declaration in terms of Section 3513) of the Act was issued on 16-3-1993 vide G.O. No. FFD 195 FWL 82, which reads as:--
'Whereas in Notification No. AFD 14 FWL 73, dated 4th February, 1975 published in Part IV, Section 2-C(ii) of the Karnataka Gazette dated 10th July, 1975, the Government of Karnataka in exercise of the powers conferred by sub-section (1) of Section 35 of the Wildlife (Protection) Act, 1972 (Central Act 53 of 1972) declared its intention to constitute the area specified in the schedule therein, to be Nagarhole National Park;
And whereas the following events have occurred, namely:--
(a) the period for preferring claims has lapsed and the claims if any, made in relation to any land in an area intended to be declared as Nagarhole National Park have been disposed of by the State Government; and
(b) all rights in respect of lands proposed to be included in the Nagarahole National Park have been vested in the State Government,
Now, therefore, in exercise of the powers conferred by sub-section (4) of Section 35 of the Wildlife (Protection) Act, 1972 (Central Act 53 of 1972) the Government of Karnataka hereby specify the limits of the area mentioned in the schedule below which shall be comprised within the Nagarhole National Park and declare that the said area shall be a National Park called as 'the Nagarhole National Park' with effect from 1st April, 1983'.
The area comprised of 571.55 sq. kms. in the districts of Mysore and Coorg, boundaries of which were described in the said notification. Such a notification is presumed to have been issued after verification of the claims and taking into consideration the prohibition imposed by Section 20 of the Act. The order was not challenged by any individual or organisation for over a period of 13 years. The argument of the appellant that Section 20 was not applicable in the facts and circumstances of the case appears to be real and genuine. The Section 20 prohibits the transfer of interest of private individuals pending settlement of compensation or other claims and is intended to be operative during the transitory period as noted hereinabove. The learned Single Judge does not appear to have not taken note of the circumstances and the intention and purposes of the Act with reference to the bar of acquisition of interest in the land covered by the declaration issued under Section 18 of the Act. The impugned judgement to that extent being against law, cannot be sustained.
14. Another aspect which was not taken note of by the learned Single Judge is that of the unexplained delay and laches of about 13 yearswhich, under the circumstances of the case, was fatal for the maintainability of the writ petition. The admitted facts clearly indicate that after the declaration and notification of the National Park, the land in question was treated as an equity share of the KSFIC in 1984 and on 27-11-1985 the KFDC decided to construct boarding and lodging facilities with the object to encourage wildlife tourism and to provide proper facilities for the public visiting the area. In the year 1987, the KFDC took over some buildings from the KSFIC. It may not be out of place to mention that before that the Government had already accorded sanction in favour of the KSFIC the transfer of Government saw-mill and workshop which were located in the area declared to be made National Park. On 10-4-1987 the Government accorded approval for establishment of reception centre in the National Park area, which intended to provide facilities at the cost of Rs. 175 lakhs. Tenders for running the complex were called in the year 1989 and the highest offer of M/s. East India Hotels, a subsidiary of Oberoi Hotels, was made on 21-7-1990. The negotiations with the appellant commenced in the year 1992 culminating in the form of a lease agreement on 25-6-1994. If the petitioners, stated to be the inhabitants of the area or the so called lovers of birds and nature, kept quiet for a sufficient long period, and allowed the appellants to change the situation by making huge investments in accordance with law, a belated writ petition filed by them should not have been taken note of as the delay in the present case was not explained and in the meantime the appellants were proved to have spent huge sums of money. Their property rights could not be taken away by filing a petition at a belated stage. It is true that delay by itself is not the ground to dismiss a writ petition particularly when it is filed in public interest and to protect the fundamental rights of the citizen. But it is equally true that for the delay some explanation requires to be given, which is missing in the present case. If, on account of delay, the other party is facilitated to change his position by making huge investments, the claims preferred without any explanation for the delay cannot be adjudicated against the interests of the party who has been facilitated, to suffer for no fault of its.
15. Assuming that Section 20 was applicable even after the declaration of a Sanctuary or a National Park, it has to be seen whether the impugned lease has conferred any right in, on or over the land comprised within the limits of the area specified as a National Park. The relevant portions of the lease agreement provide:--
'This indenture of lease made on the twenty fifth day of June, One thousand Nine Hundred and Ninety Four (1994) between, the Government of Karnataka represented by the Principal Chief Conservator of Forests of Karnataka, Aranya Bhavan, Bangalore, hereinafter called the lessor (which expression shall unless the context does not so admit, include their successors and assigns) on one part and M/s. Gateway Resorts Limited, Company incorporated under the Companies Act, 1956, having its registered office at Gateway River-view lodge, Village Dhamandivi, Taluka Khed, District Ratnagiri 415 707, Maharashtra, hereinafterreferred to as the lessee (which expression shall unless repugnant to the context or meaning there be deemed to mean and include its successors in business and assigns) of the other part: witnesseth as follows:
(1)(a) Whereas the lessor is the owner in possession of the Wild Lands (India) Project at Village Murkal, Nagarahole, Hunsur Road, comprising of main complex, deluxe and super deluxe cottages, together with the structures/civil constructions situated thereon including viewing platform facing the lake and all the furnitures and fittings and fixtures which will comprise Reception Centre, double rooms, dormitories with 76 beds more particularly listed in Schedule I(A) and indicated in the plan forming Schedule III(A) and (B) and whereas the Lessor is also the owner in possession of Wild Lands (India) Resorts, Murkal, Nagarahole, Hunsur Road comprising of 12 (twelve) cottages and Managers' Bunglows shown in plan forming Schedule.
(1) (b) M/s. Gateway Hotels and Gateway Resorts Limited, Corporate Office: Manduk House, Mandlik Road, Apollo Bunder, Bombay 400 039, whereas the lessee M/s. Gateway Hotels and Gateway Resorts Limited having agreed to take both premises as stated in I(A) and (B) above on lease for rent for running a wildlife resort by providing boarding, lodging and restaurant and connected activities and facilities to visitors to utilise it towards running a Wildlife Resort thereon for promotion of Wildlife Tourism (hereinafter referred to as the said activities) and whereas the Government of Karnataka in their order No. (1) AHFF 145 FPC 89, Bangalore, dated 21-07-1992 and FEE 61 FPC 93, Bangalore, dated 9-12-1993 for Wild Land (India) Cottages - have ordered to abide by the Principal Chief Conservator of Forests and M/s. Gateway Hotels and Gateway Resorts Limited. Now this indenture witnesseth and it is hereby agreed by and between the parties that: 1. effectively from the date of execution of this indenture the lessor doth hereby demise to the lessee the premises morefully described in Schedule I(A) and (B) above and appended hereto forming a part of the agreement on an 'as is where is' condition for a period of 18 (eighteen) years on terms and conditions as set out hereinafter and upon the lessee paying to the lessor the rent mentioned hereinafter.
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6. The lessee shall run such business of boarding, lodging, restaurants, under the name and style in the demised premises as is deemed fit by the lessee.
7a. The lessee shall fix tariffs in respect of the said activities as they deem fit.
b. Notwithstanding the aforesaid the lessee undertakes to operate the dormitory accommodation at rates stipulated below:
(i) Rs. 65/- (Rupees Sixty-five only) per bed per day for adults.
(ii) Rs. 32.50 (Rupees Thirty-two and Paise Fifty only) per bed per day for children below 12 years of age and per student who comes on tours sponsored by schools/colleges.
(c) For the occupants of the dormitory, the lessee agrees and undertakes to serve the following vegetarian food in the open air restaurant:
(i) Vegetarian breakfast Indian Rs. 30.00 (Rupees Thirty only) including tea/coffee.
(ii) Vegetarian Thali Rs. 35.00 (Rupees Thirty-five only).
(d) In the case of (b) and (c) the lessee shall only make revisions/increase upto 10% each year so as to cover inflation in the cost of food materials and cooking fuel and shall keep the lessor duly informed of such revisions. Revisions more than 10% per year shall however be made only by mutual consent of the lessor and the lessee.
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9(a) The Lessee shall have the right to conduct guided tours in the forest in its own vehicles for its tourists taking the help of the forest guides by paying the normal entry fee etc., as is applicable for all other tourists.
(b) The lessor agrees to make available the necessary forest officials as guides at all times to the lessee for the safaris.
10. Lessor Covenants
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(b) That the lessor has not entered into any agreement, nor will it enter into any agreement during the term of this agreement whatsoever regarding the running conducting, operating of the said activities in the demised premises with any other person or the operation of such similar activity in the vicinity of the demised premises by any other persons.
(c) The lessee shall during the terms of this agreement quietly and peacefully hold, possess, and enjoy the said premises and carry on the said activities without any interference whatsoever of the lessor or and persons/parties claiming authority through or under the lessor.
(d) The lessor agrees to pay all property taxes for the demised premises. The lessee shall however be responsible for payment of any other taxes, cesses, charges, contributions levied on or in relation to the running of the wildlife resort.
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11. Lessees Covenants
(a) The lessee shall strictly comply with the applicable rules and regulations relating to running of wildlife resorts, protection and preservation of forest and wildlife and environment.
(b) The lessee will be responsible to keep the said demised premises in safeguard and sound conditions save normal wear and tear and also do such acts as are necessary for maintaining hygiene and sanitation and shall also at their cost do the necessary routine repairs, colours washing, polishing etc., which are necessary for the upkeep and running of the said premises as a wildlife resort without any damage to the said demised premises.
(c) The lessee shall diligently and promptly pay to the lessor the rents as specified in clause (2) above.
(d) The lessee will indemnify and keep indemnified the lessor against any claim and/or legal proceedings if it arises on or after the date of this agreement due to its negligence in conducting the said activities in the said premises.
(e) The lessee shall be solely responsible for securing any licence or permit necessary for running the wildlife resort and the lessor will render its possible co-operation, assistance to the lessee in procuring the same.
(f) The lessee shall not without previous consent in writing of the lessor make any structural changes which are external to demised premises but this consent shall not be unreasonably withheld. However, the lessee will be entitled to carry on all alterations within the existing structures without any previous consent of the lessor.
(g) The lessee shall not transfer design or part with the possession of the said premises to anybody else except with the previous written permission of the lessor.
(h) Notwithstanding the aforesaid the lessee shall have the right to hypothecate, charge, mortgage, pledge an encumber any or all of the assets belonging to the lessee from time to time at a security for raising, borrowing funds as may be required by the lessee from time to time and the lessor shall render its maximum co-operation and give the necessary no objection letters as may be required by the lenders.
(i) The lessee shall permit the lessor or its authorised representatives after giving 12 hours written notice to the lessee to enter into and upon the demised premises to inspect the condition thereof and of all defects and want of repairs there found and to give or lease written notice for the lessee to repair.
(j) The lessee shall not cut, damage, or fell any standing trees in the premises.
(k) The lessee shall at its own cost keep the demised premises including all buildings and structures whatsoever comprised therein duly insured against all risks of fire, earthquake, flood, cyclone and the extended cover thereof for war, riots, strike, insurgency, civil strife, commotion, electrical fire, machinery/equipment breakdown on replacement value.
(l) In the event of loss due to fire or any other calamity referred to in (k) above, to the aforesaid premises. The insurance money received from the insurance company shall be applied for rebuilding or restoring the said premises to the previous condition unless otherwise agreed to in writing between the parties in the event of the insurance company refusing to pay the claim arising out of the aforesaid loss due to fire on grounds that the fire was intentionally or wilfully caused by the lessee or their servants or agents. The lessee shall alone be liable for and compensate the lessor on account of such loss or damage caused to the demised premises.
(m) The lessee shall be responsible for the safety of the resident guests and their belongings during their stay at the premises and visits to the National Park. '
(n) All persons employed by the lessee for running the wildlife resort and Murkal complex resort shall be the employees of the lessee and lessee shall alone and exclusively be liable for all or any of the claims made under any law for the time being in force by the lessee for running the wildlife resort and Murkal complex resort. The lessee shall keep the lessor duly indemnified in that behalf.
(o) The lessee shall meet and bear any claim for damages or compensations made on account of any accident or injury sustained by any employee or resident visitor within the premises of the wildlife resort and the lessee shall keep the lessor duly indemnified in that behalf,
(p) The lessee shall be liable to pay all charges levied by the Karnataka Electricity Board for supply of electric energy/power to the demised premises and shall also pay all charges/deposits levied towards any installation necessary to supply of electrical energy/power to the resort. The lessee shall also maintain at its cost, the existing H.T. installation in general conforming as per the rules and regulations in force.
(q) The lessee shall maintain at its cost the three or more borewells in the demised premises of which two are fitted with submersible pumps for water supply to the whatsoever comprised therein duly insured against all risks of fire, earthquake, flood, cyclone, and the extended cover thereof for war, riots, strike, insurgency, civil strife, commotion, electrical fire, machinery/equipment breakdown on replacement value.
14. Termination
(a) The agreement stands terminated after the expiry of the said term of 18 years or earlier of any conditions of this deed are violated by the lessee.
(b) On the expiry or earlier determination of lease or its extended period, the lessee shall vacate and deliver unto and in favour of the lessor or its authorised representatives. The vacant and peaceful possession of the demised promises together with all additions and installations of the permanent nature as may then be lying erected and/or comprised therein good and repaired condition. The lessee shall not be entitled to claim any compensation or damages on account of the additions and/or alterations and/or improvements at the demised premises except as otherwise provided herein.
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16. Arbitration
Any dispute or difference arising between the parties hereto regarding the construction, meaning or effect or obligation of the parties hereto under this agreement or any clause thereof or matter or thing herein, contained or as to the rights or liabilities of the parties hereto shall be referred to the arbitration by two arbitrators, one to be appointed by the lessor and one to be appointed by the lessee in accordance with the provisions of the Indian Arbitration Act, 1940 or statutory modification or re-enactment thereof from time to time in force. The arbitration proceedings shall be conducted at Bangalore'.
16. A perusal of the aforesaid clauses of the lease agreement as noted hereinabove clearly shows that no right in or over the land had been transferred. The appellants had been permitted to enjoy the existing structures after renovation and necessary modifications. No forest land or any part thereof has been acquired by the appellants. The lease deed is only for providing facilities to the nature lovers visiting the National Park area for the purposes specified in the Act for which specific permission has to be obtained. The lease is intended only to renovate and operate the forest lodges already existing with the declared object of meeting the demands of over 30,000 visitors claimed to be visiting the National Park every year. The purpose for which the visitors are to be allowed in the National Park is regulated by the provisions of Section 28 of the Act by which the appellants are bound. No person or group of persons can be permitted to enter or reside in the National Park including the sites leased out to the appellant, without a permit, for the purposes specified under the Act.
17. What is prohibited by Section 20 is acquiring any right in, on or over the land regarding which declaration is issued under Section 18. The dictionary meaning of the word 'acquire' is 'to gain, to attain, that may be acquired'. In some cases it may be equated with the term 'transfer'. Transfer or acquisition with respect to a land may be something more than having the right of user of the property already in existence. Acquisition in relation to the land would mean getting the possession as an owner or purchaser or as a dominant user of the property according to his wishes and desires. Acquisition of a right by one would contemplate the deprivation of the right of others. Acquisition in relation to the property was held to mean and include the acquiring of entire title of the expropriated owner whatever the nature or extent of that title might be. The entire bundle of rights which vested in the original holder are supposed to pass on acquisition to the person acquired leaving nothing inthe former. Acquire is something more than transfer. It would mean taking possession for its user to the exclusion of the real owner. The impugned lease deed, therefore, could not be termed to be amounting to acquisition of any right in, or over the land forming part of the National Park.
18. Dealing with the provisions of the Forest (Conservation) Act, 1980, and the objectives in connection therewith, the learned Single Judge concluded that Section 2(iii) of the Act restricted the right of the State Government to transfer or create any right in or over a forest land or a portion thereof either by way of lease or otherwise. Before arriving at such a conclusion, the learned Judge relied upon the judgment of the Supreme Court in T.N. Godavarman Thirumulkapad v Union of India and Others, Union of India v Kamath Holidays Resorts Private Limited, State of Bihar v Banshi Ram Modi and Others, Ambica Quarry Works v State of Gujarat and Others and State of Andhra Pradesh v Anupama Minerals.
19. The Forest (Conservation) Act, 1980, which was enacted to provide for conservation of forests and matters connected therewith or ancillary or incidental thereto, provides restriction on the dereservation of forests or use of forest land for non-forest purpose, under Section 2 which reads as:--
'2. Restriction on the dereservation of forests of use of forest land for non-forest purpose.--Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing.-
(i) that any reserved forest (within the meaning of the expression 'reserved forest' in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in thatland or portion, for the purpose of using it for reafforestation.
Explanation.--For the purposes of this section 'non-forest purpose' means the breaking up or clearing of any forest land or portion thereof for-
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants;
(b) any purpose other than reafforestation,
but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire-lines, wireless communications and construction of fencing, bridges and culverts dams, waterholes, trench marks, boundary marks, pipelines or other like purposes'.
A perusal of the Section 2 clearly indicates that no land or any portion thereof can be assigned by way of lease or otherwise to any private person or any authority, corporation, agency or any other organisations not owned, managed or controlled by the Government, except with the prior approval of the Central Government. The provisions of sub-section (iii) of Section 2 of the Act are applicable to all forest land irrespective of the fact that such forest has been declared as a reserved forest or not.
20. The Supreme Court in T.N. Godavarman Thirumulkapad's case, supra, has held:--
'The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word 'forest' must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term 'forest land' occurring in Section 2 will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government, record irrespective of the ownership. This is how it is to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica's case, supra, Rural Litigation and Entitlement Kendra v State of Uttar Pradesh, 1989 Supp. (1) SCC 504 and recently in the order dated 29th November, 1996 in W.P. (C) No. 749 of 1995 (Supreme Court Monitoring Committee v Mussorie Dehradun Development Authority and Others)'.
21. Invoking the provisions of Article 141 of the Constitution of India, the learned Single Judge rightly concluded that:--
(i) 'forest' will take within its sweep all forests as understood in the dictionary sense as well as the statutorily recognised forests whether designated as reserved, protected or otherwise;
(ii) 'forest land' will include the 'forest' understood as above as also any area recorded as forest in the Government records; and
(iii) the provisions of the Act will apply to all forest lands irrespective of its ownership or classification thereof.
22. It has also not been disputed that before leasing the property to the appellants, the State Government had not sought and obtained prior approval of the Central Government in terms of Section 2 of the Act. In view of this admitted position what is required to be ascertained is the effect of such lease so far as the rights of the appellants are concerned.
23. In the case of Union of India, supra, the Supreme Court considered the scope and object of Section 2 of the Forest (Conservation) Act and held that the observation of procedure under Section 2 of the Act was necessary and the concerned authority was under an obligation to seek approval of the Central Government before passing the orders under Section 2, inconsonant with the orders of the Central Government. As a way out, in that case, the Supreme Court directed that the proposals as mooted by the authorities under the Act, together with the objection of the Conservator of Forests be sent to the Central Government under Section 2 of the Act read with the rules framed thereunder and upon receipt of the proposal if any, the Central Government after obtaining the advice from the Advisory Committee may pass such orders thereon, which may be warranted in the facts and circumstances of the case.
24. Relying upon the decision in Banshi Ram Modi's case, supra, the learned Counsel for the appellants submitted that the prior approval of the Central Government in terms of Section 2 of the Act was not necessary. We are not impressed with this argument inasmuch as in that case the Court was dealing with a mining lease which had been granted for mining a certain mineral prior to the coming into force of the Act and the lessee had applied to the State Government for permission to win and carry any new mineral from any part of the forest area which was already utilised for non-forest purposes by carrying out mining operations before the coming into force of the Act. Under the peculiar circumstances of the case, the Court observed:
'In the instant case it is not disputed that in an area of five acres out of eighty acres covered by the mining lease the forest land had been dug up and mining operations were being carried on even prior to the coming into force of the Act. If the State Government permits the lessee by the amendment of the lease deed to win and remove feldspar and quartz also in addition to mica it cannot besaid that the State Government has violated Section 2 of the Act because thereby no permission for fresh breaking up of forest land is being given. The result of taking the contrary view will be that while the digging for purposes of winning mica can go on, the lessee would be deprived of collecting feldspar or quartz which he may come across while he is carrying on mining operations for winning mica. That would lead to an unreasonable result which would not in any way subserve the object of the Act. We are, therefore, of the view that while before granting permission to start mining operations on a virgin area, Section 2 of the Act has to be complied with. It is not necessary to seek the prior approval of the Central Government for purposes of carrying out mining operations in a forest area which is broken up or cleared before the commencement of the Act'.
25. In Ambica's case, supra, the Supreme Court found that the rejection of the application under Section 2 of the Act was in conformity with the purposes of the Act of preventing deforestation and ecological imbalance resulting from deforestation. Referring to its earlier decision in Banshi Ram's case, supra, the Court observed that the ratio of that decision was not applicable in Ambica Quarry Works case, supra. It was observed:--
'In the instant appeals the situation is entirely different. The appellants are asking for a renewal of the quarry leases. It will lead to further deforestation or at least it will not help reclaiming back the areas where deforestations have taken place. In that view of the matter, in the facts and circumstances of the case, in our opinion, the ratio of the said decision cannot be made applicable to support the appellants' demands in these cases because the facts are entirely different here. The primary purpose of the Act which must subserve the interpretation in order to implement the Act is to prevent further deforestation. The Central Government has not granted approval. If the State Government is of the opinion that it is not a case where the State Government should seek approval of the Central Government, the State Government cannot apparently seek such approval in a matter in respect of, in our opinion, which it has come to the conclusion that no renewal should be granted'.
26. Our attention has been drawn to two decisions of the High Courts taking extreme divergent views. The Kerala High Court, in Niyamavedi v State of Kerala and Others, has held that the establishment of the biological park was a policy decision taken by the Executive and the same could not be interfered with by the High Court to supplant its own views. In A.P. Jairaj v Chief Conservator of Forests (Wildlife) , a Division Bench of the High Court, while dealing with a question as to whether the construction of the forest lodge was for a non-forest purposeand considering the effect of there not being prior approval in terms of Section 2 of the Act, held:
'4. The pivotal contention advanced by Smt. H. Subhalekshmi, learned Counsel who addressed arguments for the appellant, is that the proposed construction of the lodge is without prior approval of the Central Government and is hence violative of Section 2 of the Forest (Conservation) Act, 1980 (for short, the Act'). Section 2 of the Act forbids the State Government or any other authority from making any order directing that any reserved forest shall cease to be reserved or that any forest land including any portion thereof can be used for 'any non-forest purpose' except with the prior approval of the Central Government.
5. What is meant by 'non-forest purpose' has been explained by the Forest (Conservation) Amendment Act, 1988 through the Amendment of Section 2 of the principal Act. The said explanation reads thus:
'Explanation.--For the purpose of this section 'non-forest purpose' means the breaking up or clearing of any forest land or portion thereof for:--
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;
(b) any purpose other than reafforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely the establishment of check-posts, fire lines, wireless communications and construction of fencing bridges and culverts dams, water holes, trench marks, boundary marks, pipelines or other like purposes.
Learned Government pleader has adopted a twin strategy to circumvent Section 2 of the Act. First is to convince us that there is no act of breaking up or clearing of forest land for the purpose of constructing the Forest Lodge. Second is to show that construction of Forest Lodge is a work ancillary to conservation, development and management of forests and wildlife.
6. First contention of the learned Government Pleader has no support from the factual position because it is admitted by the Government in their counter that some trees have to be felled though there is dispute regarding the number of such trees. In the strict sense clearance of forest land will take place even by cutting down one tree therefrom. At any rate, there is no doubt that multiplicity of trees have to be cut and removed, though the appellant would say that more than a dozen trees are to be chopped of for this purpose. Hence whatever be the number of trees involved we hold that clearance of forest land is necessary for constructing the proposed Forest Lodge.
7. Regarding the second contention, the work, 'ancillary to the conservation, development and management of forests andwildlife' has been catalogued in the Explanation as (1) establishment of check-posts, fire lines and wireless communications (2) construction of fencing, (3) construction of bridges and culverts, (4) construction of dams, water holes, trench marks, boundary marks or pipelines 'or other like purposes' and contended that the proposed construction would fall within the scope of that limb. But a reading of the clause shows that the last residuary words include only those activities which are analogous or similar to the other activities catalogued. According to the learned Government Pleader, the purpose of constructing the Forest Lodge is to provide accommodation to inspecting officers and students from schools and colleges who attend nature camps as well as to wildlife enthusiasts researchers, scientists and bird watchers, etc. He contended that those purposes would fall within the residuary limb 'or other like purposes'.
8. The requirement in Section 2 for prior approval of Central Government must be strictly construed as any relaxation of it would be perilous to the fast depleting forest wealth of the country. One of the directive principles of State Police is to 'safeguard the forests and wildlife of the country' (Article 48-A of the Constitution). One of the fundamental duties of every citizen of India is to protect and improve forests (Article 51-A Clause (g)). So clearance of forest area should be allowed only as a stark exception. When Parliament insisted that such clearance can be made only with the prior permission of Central Government the rule should be rigorously followed. Forest wealth is already an endangered bounty of nature'.
27. In Parisar v State of Maharasktra, it was held that the building permission granted only in respect of a small portion of the land would not change or was likely to change the character of development plan affecting the forest land. It was further held that obtaining permission with respect to a forest for non-forest purpose would be necessary only if the land was afforested at the commencement of the Act and was going to be used for non-forest purpose. In that case the petitioners had claimed to be interested in protection and preservation of ecological balance and proper environment in and around Pune City. They had challenged and prayed for quashing the Government notifications on the ground of being violative of the Maharashtra Regional and Town Planning Act, 1966, in violation of the Forest (Conservation) Act, 1980, having been issued without following the procedure laid down in the Act and being the result of arbitrary exercise of power vested in the Government, which violated Article 48-A of the Constitution. The facts in the said case disclosed that the disputed land was 1/4th portion of the land under Sy. No. 81, Bhamburda, Pune. Its situation was almost at the top of a hill popularly known as Hanuman Hill, which was shown to be 'No Development Zone' in the development plan and declared as a reserved forest. The whole of the land in Sy. No. 81 measuring 3.26 hectares wasleased out to the respondent 3 therein under a validly executed agreement on a nominal rent for 50 years inter alia for planting trees and for construction of a pagoda for the use of the visitors. The respondent 3 was a society connected with carrying on educational and cultural activities. In the year 1976 respondent 3 requested the State Government to take the land out of the reserved forest and allow it to construct building for a Law College. The State Government issued a letter to the Pune Municipal Corporation directing it to initiate a proposal for minor modification of the development plan for converting the land from 'No Development Zone' to 'Semi-Public Zone'. On 19-1-1979 the State Government issued a notification under Section 27 of the Indian Forest Act declaring that the land had ceased to be reserved forest from the date of the publication of the notification. On 9-8-1979 the Pune Municipal Corporation issued a notification indicating its intention of converting the aforesaid land from hilly lands into 'public and semi-public zones'. Sanction was accorded by the State Government on 29-4-1981 and notification in that regard was published in the Gazette on 18-6-1981. Meanwhile, the Forest (Conservation) Act was enacted. In 1982 the Government of Maharashtra appointed the Director of Planning, Maharashtra State, Pune, to be the Special Officer and directed him to take action for publication of notice under the said Act and to submit a draft development plan for Pune City to the Government for sanction. There was no dispute that the suit land had been shown both in the original draft development plan and the modified development plan in public and semi-public zone and that the petitioners had made their representations before the Special Officer appointed for that purpose. Respondent 3 constructed the building for the proposed Law College. On May 31, 1985 the Revenue and Forest Departments of the State Government sanctioned construction of the building on 20% of the suit land upon conditions. The petitioners challenged the same requesting for quashing the State Government's orders, letters and directions issued in favour of respondent 3. The Court took note of the importance and need of protection of ecological balance and environment and evil consequences that would follow if proper care was not taken to preserve and protect them, the duty of the State and the citizen in that behalf and the parameters for entertainment of petitions in the public interest. Upon consideration of the material facts and circumstances of that case, the Court came to the conclusion that as the building was likely to be constructed on a small portion of the land, the same would not likely to adversely affect the ecological balance or environment. While dealing with Section 2, it was held:
'While Section 2 undoubtedly requires prior approval of the Central Government for the purposes mentioned in sub-sections (i) and (ii), the expression 'non-forest purpose' finds place in sub-section (ii) and this expression has been defined by the Explanation thereto. Explanation, in our opinion, defines 'non-forest purpose' as meaning (i) breaking up or clearing of any forest land or portion thereof and (ii) for any purpose other than reafforestation. The explanation has two limbs. The first limb is'breaking up or clearing of any forest land or portion thereof'. The other limb is that the above act should be 'for any purpose other than reaforestation'. In other words, both the limbs must be satisfied if it is to be held non-forest purpose. We shall first try to understand the meaning and scope of second limb as in our view the meaning of second limb will also throw some light as to the meaning of first limb. In its wisdom the legislature has used the word 'reaforestation' in the second limb and not afforestation. To our mind, this is not without significance. Both the words have their origin in the word 'afforest' which according to the Stroud's Judicial Dictionary means to turn ground into forest. The meaning of this word, according to Shorter Oxford English Dictionary is to convert into forest. The word 'Reafforestation' would naturally mean to afforest again which was cleared of afforestation once existed. Considered in the light of meaning of second limb of the Explanation as understood by us, the expression 'forest land' used in the first limb would mean afforested-land. In the instant case the suit land was never afforested. In fact, it was leased out to respondent 3 in the year 1975 for afforestation as distinct from reafforestation. Section 2(ii) of the Forest (Conservation) Act, 1980 has therefore, no application in the facts of the case'.
28. Keeping in view the facts and circumstances of the case, we are of the opinion that the learned Single Judge was justified in holding that the State Government had assigned a portion of the forest land by way of lease in favour of the appellant, which was a private company, admittedly without seeking prior approval of the Central Government. He, however, felt that in view of his finding that there existed an absolute prohibition on the grant of such rights under Section 20 read with Section 35(3) of the Wildlife Act, the lease itself was void which could not be acted upon by the appellant. We are, however, of the opinion that in case the lease was contrary to the provisions of Section 2(iii) of the Forest (Conservation) Act, it could not be said that the lease agreement was void ab initio without conferring any right upon the appellant, particularly in view of our finding regarding the interpretation of Sections 20 and 35(3) of the Wildlife Act. Even though the lease is not hit by the provisions of Section 20 of the Wildlife Act, yet it being contrary to the mandate of Section 2 of the Forest (Conservation) Act, cannot confer any right upon the appellant to carry on with their scheme, proposals and objects accorded to them on the basis of the lease deed executed in their favour, unless and until the approval of the Central Government is obtained. In the absence of such an approval no activity of renovation, repairs etc., in terms of the impugned lease deed can be carried on till the approval of the Central Government in terms of Section 2 of the Act is granted.
29. As the petition has not been filed by a busy body or interloper with any mala fide intention, it is necessary that in view of the serious allegations made regarding the violation of the terms of the lease and the laws relating to preservation of forest and environment, the apprehensions of the respondents herein are taken care of while acting upon the lease agreement if ultimately an approval is granted by the Central Government in terms of Section 2 of the Forest (Conservation) Act. We are of the opinion that in the event of an approval being granted, the Government of Karnataka may appoint a committee comprising of responsible Government officials and the representatives of the public opinion, including the representatives of the tribals in the area and writ petitioners, for monitoring the execution of the scheme to ensure its completion strictly in accordance with the conditions prescribed by the lease-agreement without violating any provisions of the law or doing violence to the ecological atmosphere by endangering the forest, its produces, or the wildlife therein.
30. Under the circumstances, the appeals are partly allowed by holding that-
(1) The judgment of the learned Single Judge insofar as it declares the impugned order and the lease deed to be contrary to Section 20 of the Wildlife (Protection) Act, is set aside.
(2) The respondent-State and the appellants are at liberty to pray and seek the approval of the Central Government in terms of Section 2 of the Forest (Conservation) Act, 1980, which, if prayed or applied for, may be granted or refused strictly in accordance with the provisions of law.
(3) Till such time the approval is granted, the appellant-hotel shall not undertake any renovation/modification activity on the basis of the impugned orders and the lease deed.
(4) If the Central Government grants the approval in terms of Section 2 of the Act, the State Government shall constitute a High Power Committee comprising of the responsible officials of the Forest and Wildlife Departments, Police Agency, and representatives of the public opinion, including one of the representatives of the tribals in the area and writ petitioners to monitor the completion of and acting upon the terms of the lease deed keeping in view of the various provisions of different laws applicable in the case for the preservation of forest, environment and the wildlife. Without appointment of such a Committee, no renovation or modification activity shall be commenced.
(5) In case of any violation reported by the said Committee, if appointed, the respondent-State shall be obliged to revoke the lease agreement in accordance with the terms contained therein and the principles of law applicable in the case.
31. The writ petitioners are held entitled to the payment of costs assessed at Rs. 5,000/- to be paid by the appellant-hotel.