Chandmari Tea Co. and anr. Etc. Vs. State of Assam and ors. - Court Judgment

Excerpt:
- - rhinos by inclusion of area of the existing northern and southern boundaries as well as acquisition of land forming corridors for animals. advocate however, submitted that on scrutiny of the record no claim/objection submitted by the tea company could be found and the letter of the collector dated 19-3-87 clearly states that no claims/objections were received within the stipulated period. it is also seen from the record that the collector had also recommended that the deputy commissioner, sonitpur district, divisional forest officer, eastern assam wild life division, sonitpur division should clear all encroachers and trespassers from their respective jurisdiction before handing over the same to the kaziranga national park authorities. m. sarma, j. 1. by this common judgment and order i propose to dispose of the aforesaid writ petitions as the facts and points of law involved in these eases are common.2. in these writ petitions the petitioners have challenged notifications dated 11-9-74, 10-9-85 and 25-10-85 and other notifications issued by the govt. of assam notifying extension of the territory of burachapari reserve forest and kaziranga national park as per the schedule mentioned in those notifications. some of the petitioners have also challenged the cancellation of grazing permits and prayed for a direction to provide for alternative pasture ground for grazing their catties.3. in civil rule no. 1923/93 the petitioners have challenged the notifications dated 13-6-85 and 3-8-89 and the impugned notice dated 9-12-92.....

Judgment:

M. Sarma, J.

1. By this common judgment and order I propose to dispose of the aforesaid writ petitions as the facts and points of law involved in these eases are common.

2. In these Writ Petitions the petitioners have challenged Notifications dated 11-9-74, 10-9-85 and 25-10-85 and other Notifications issued by the Govt. of Assam notifying extension of the territory of Burachapari Reserve Forest and Kaziranga National Park as per the Schedule mentioned in those Notifications. Some of the petitioners have also challenged the cancellation of Grazing Permits and prayed for a direction to provide for alternative pasture ground for grazing their catties.

3. In Civil Rule No. 1923/93 the petitioners have challenged the Notifications dated 13-6-85 and 3-8-89 and the impugned notice dated 9-12-92 issued by the Regional Forest Officer. Bagori by which petitioners were asked not to proceed with Tea Plantation in the area in question which was handed

over to the Forest Department by the Revenue Department for the purpose of movement of wild lives to take shelter in the adjacent hills during the rainy and flood season. The ease of the petitioners is that the petitioner Company has been running the Tea Estate for about 60 years and carrying on plantation and manufacturing of tea in the said Tea Estate, that out of the total garden land of 2538 Bighas, 2189 Bighas are periodic patta land belonging to the petitioner and the remaining 349 Bighas are Govt. land in respect of whieh the petitioner Company has been paying Tauzi Bahira revenue since 1935. After obtaining approval for extension of the Tea Garden from the Tea Board, it is contended, petitioner Company cultivated 331 Bighas out of the said 349 Bighas of land by planting tea bushes. It is further contended that settlement of the said land was under consideration. In 1977 about 37 Bighas of land has been acquired by the Government for the purpose of laying Pipe Line by Oil India Ltd. and the tea bushes worth lakhs of rupees were destroyed, reducing the plantation area. Asserting its rights and interest over the said part of land, petitioner claims that for development and extension of the tea garden petitioner took a huge amount of Bank loan under the State Govt. Scheme for tea plantation in the Estate; that pursuant to the approval of the ARDC and Bank loan, petitioner Company carried out the extension of tea plantation in the entire area within its jurisdiction including the area of Govt. land without any interference.

4. Petitioners' grievance is that by Notification dated 13-6-85 issued by the respondent No. 6 under Section 35 of the Wild Life (Protection) Act, 1972 (for short 'the Act, 1972') the Govt. Incorporated certain areas of Kanchanguri village measuring about 89.754 Hectors into the Kaziranga National Park. Though as per the said Notification no portion of the garden land of the petitioner falls in the said Kanchanguri village, in the boundary description of the said Notification, it is contended, some references were made to certain areas crossing the boundary of the petitioners' tea estate, though garden area falls under Mouza Duarbugora and not under the said Kanchanguri. It is further contended that the description given in the Notification was confusing and incorrect. Petitioner-Company filed objections against this Notification on 21-10-85 (Annexure-B)

stating that no opportunity of hearing was given to the petitioner. Again on 3-8-89 respondent-Secretary, Forest Department issued Notification under Section 35 of the Act, 1972 wherein also no reference in Schedule 'A' was made to Duarbagora Mouza and Malini village under whose jurisdiction the tea garden falls and also no reference was made as to the boundaries. Further contention is that even after publication of the Notice no process was started to vest the land of the tea garden to the authorities of the Wild Life Forest Department; that even Government Circular dated 22-2-88 issued by the Revenue Department also did not disturb the petitioner in possessing and occupying the land in question and that as the petilioner was not disturbed till the issuance of the impugned Notification (Annexure-A) it did not approach this Court by filing writ petition. The petitioners claim for settlement of the land in question under Dag Nos. 12 to 18 and 40 and 41 measuring total 349 Bighas of land under Buarbagora Mouza, Vill.-Malini. Appeal filed by the petitioners has been pending before the Government for which reminders have also been filed from time to time. It is further contended that transfer of the land in question from Revenue Department to Forest Department cannot take place when the prayer for settlement of the land is under consideration and the Collector, Nagaon has submitted a comprehensive report and the Sub-Deputy Collector, Kaliabor has submitted a report in favour of the petitioner recommending settlement of the aforesaid land in favour of the petitioner (Annexure-G to the WP).

5. In Civil Rule No. 3683/94 petitioner who is the President of the Gopal Jarani ME School of Village Thutechapari, Dist. Sonitpur challenges the Notice dated 15-3-94 issued by the Commissioner, North Assam Division directing him to show cause with all papers and documents on 24-3-94 as to why right and title of the said school in respect of the land in its occupation should not be declared illegal and should not be cancelled. Managing Committee of the said school filed objection and stated that the Sub-Divisional Officer, Biswanath Sub-Division by his order dated 15-2-93 allowed 3 Bighas of land covered by Dag No. 58, 5 of Thutechapari Gaon under Kolongpar Mouza duly approved by the Land Advisory Committee of Biswanath Sub-Division. Hence, petitioner prayed for cancellation of the impugned Notice issued

by the respondents.

6. Similarly in Civil Rule No. 3685/94 the petitioners who are the Presidents of Managing Committee of Gopal Jarani LP School and Ganal Ati LP School have challenged the Notices dated 15-3-94 Issued by the Commissioner, North Assam Division, asking them to show cause on 24-3-94 as to why right and tide of the said schools in respect of the lands in their occupation should not be declared illegal and should not be cancelled. According to them the lands were allotted by the Government for establishment of the schools and they established the said schools which have been provincialised by the Government subsequently. If the land is taken away Under Section 20 of the Act, 1972 the students mostly belonging to Scheduled Caste community will suffer immensely. As the petitioners are occupying the land in question since a long time as per the allotment of the land in question to the said schools it cannot be taken away Under Section 20 and 21 of the Act, 1972, therefore, the impugned Notices are violative of the provisions of the Constitution.

7. In Civil Rule No. 3845/94 petitioners have challenged the process of inclusion of Bogori Ati and Bhojmari No. 3 (Bahmnari) within the boundary of Kaziranga National Park vide Notification dated 25-10-85. Case of the petitioner is that the villagers of petitioners' village occupied the land in question by paying Teuzi taxes and the land were settled in their favour on annual patla basts in the year 1967 by the Deputy Commissioner, Darrang. The grievance of the petitioners is that by the impugned Notification dated 25-10-85 the Government declared an area of approximately 40.50 Hectars to be within the area of Kaziranga National Park Under Section 35 of the Act, 1972 against which the villagers filed representation but the personnel of Forest Department without any process of law attempted to evict the villagers. Against this petitioners preferred Civil Rule No. 833/86 before this Court and by order dated 13-12-90 the Division Bench of this Court while disposing of the Civil Rule directed that the enquiry instituted as per the Notification dated 25-10-85 should be completed as early as possible and pending enquiry the petitioners should not be evicted. Petitioners alleged that no enquiry so far has been conducted by any authority as yet and petitioners and their villagers are still under threat of being evicted from the land in question at any time.

8. In Civil Rule No. 5282/95 the petitioners have challenged the Notification dated 11-7-95 issued by the respondent No. 1 Under Section 26-A(i) of the Act, 1972 declaring the Burachapari Reserved Forest to be a Wild Life Sanctuary and also prays for direction restraining the respondents from evicting the members of the petitioner-Societies from the land in their respective individual possession. Case of the petitioners is that they represent about two thousand people in three villages, namely, Dhania, Jhawani and Sesuti located in the area of Burachapari Reserved Forest and they are principally engaged in the business of cattle rearing and supply of milk and are professional graziers and have 'been living in the area for over 80/90 years with semi/permanent structures. It is contended that prior to declaration of Burachapari as Reserved Forestin 1975, Burachapari was a professional Grazing Reserve and the members of the petitioner-Societies and their predecessors have been using the grazing reserve for rearing, feeding their cattle. After conversion of Burachapari Grazing Reserve into a Reserved Forest vide Gazette Notification dated 10-9-75 the members of the petitioner-Society continued to remain in the reserved forest with the limited rights, privileges and concessions and they were issued Grazing Permits on payment of fees. The allegation of the petitioners is that without giving any opportunity to the members of the petitioner-Society the respondents vide Notification dated 11-7-95 Under Section 26-A(i) of the Act, 1972 declared the Burachapari Reserve Forest, as a Wild Life Sanctuary with effect from the date of its publicatton in the Assam Gazette. Petitioners allege violation of the provisions of Sections 19, 21 and 22 of the Act, 1972 and Section 26(A) of the Amended Act, 1991.

9. In Civil Rule No. 4167/96 the petitioner has challenged the Notification dated 10-7-85. Petitioner has also challenged the order of cancellation of Grazing Permits of the members of the petitioner and prays for a direction on to the respondents not to evict the members of the petitioner from their respective villages. Petitioner's case is that the villagers of No. 1 Sildubi Pathar Gaon are permanent residents and original periodic patta holders and that the villagers of No. 2 Sildubi Pathar Gaon, Hatikhuli, Kaziranga NC VGR and PGR were originally residents of village Morianbella, Dhansirimukh and Teli

Missing Gaon under the Bokakhat Mouza. That these peoples lost their movable and immovable properties due to the erosion caused by floods prior to 1972 and the Govt. of Assam rehabilitated these people in the said lour villages. The grievance of the petitioner is that by the impugned Notification the villages of the petitioners have sought to be annexed with the Kaziranga National Park by evicting them.

10. In Civil Rule No. 2397/98 the petitioners state that they have been rearing their catties in chars and chaparis of Brahmaputra by establishing cattle sheds (Khutis). But the Govt. of Assam by Notification dated 10-9-85 declared the chars occupied by the petitioners to be included within the Kaziranga National Park by extending the park to the North Bank in exercise of the powers Under Section 35 of the Act, 1972. These petitioners also claim for settlement of the land under their occupation.

11. Respondents have filed affidavit-in-opposition in almost all the cases denying the allegations made by the petitioners. In Civil Rule No. 1923/93 it has been stated that the petitioner is an enrroacher over the land in question, which is testified from the fact that the petitioner is paying touzi bahi revenue since 1987 i.e. after publication of the Notification dated 13-6-85 (Annexure-Ato the writ petition). Vide the notification dated 13-9-85 the Commissioner invited claim/right over the notified land and directed to file objection, if any, but from the report dated 19-3-87 it appeared that the petitioner had not filed objection/written statement as directed within the specified time. It has been further stated that no patta land of the petitioner falls within the notified area as alleged. Petitioner's prayer for allotment of the land in question cannot be considered as the land is required to be added to the Kaziranga National Park for greater protection of the Wild Life species and for greater public interest, and in fact the land has already been included in the 4th addition to the Kaziranga National Park by notification dated 3-8-89. In. Civil Rule No. 3845/94 the respondents have filed affidavit-in-opposition stating that the villages in question are situated within the area of 1565.6 Hectares added to the Panpur Reserve Forest as 'first addition' in 1981 vide Notification dated 12-9-80 with effect from 27-5-81 and that the petitioners are unauthorisedly occupying the area. The

Tauzi Bahi revenue does not authorise a person to claim right, title and interest over the land and in fact the same is only a fine Imposed by the Revenue Authorities on the encroachers for encroachment over the Govt. land. The petitioners encroached the Govt. land clearing jungles and started cultivating in the riverine 'chaporis' and these 'chaporis' are being used as shelter by poachers for sneaking into the National Park, it has further been stated that the Notification dated 12-9-81 adding the aforesaid two villages in the 'first addition' to Panpur Reserve Forest was not challenged at any point of time and at this belated stage no grievance can be made for having included the aforesaid two villages in the 'first addition'. Though petitioners claimed that they have been paying Tauzi Bahi revenue no receipt after 1980 could be produced by them. Respondents denied violation of provisions of the Constitution and the authority has right ly exercised the provisions of the Act, 1972 extending the boundaries of the Kaziranga National Park and all reasonable opportunities were given to the petitioners.

12. In Civil Rule No. 5282/95 respondent No. 4 filed affidavit-in-opposition stating that at the time of constituting Burachaporl as a Reserved Forests in 1975, the Forest Settlement Officer was appointed who disposed off the claims etc. as per Sections 6 to 16 of Assam Forest Regulation, 1891 and Buraehapori was declared to be a Reserved Forest under See. 17 of the said Regulation vide Gazette Notification dated 10th Sept., 1975. It has been stated that rearing was never allowed as claimed by the petitioners and by the Notification dt. 10-9-75, 342 Nos. of 'Khuties' (cattle camps) comprising 3507 Nos. of cows and 2647 Nos. of buffaloes were allowed to be grazed and thereafter by Notification dated 11-10-95 this right of grazing was abolished.

13. In Civil Rule No. 4167/96 affidavit-in-opposition has been filed on behalf of respondents Nos. 1, 2 and 3. It has been stated that encroachment proceedings were started against the encroachers in the year 1989 but the proceeding could.not be completed due to the stay order passed by the State Government vide order dated 26-5-89. However, it has been further stated that the land acquisition proceedings were started and accordingly award to that effect was passed. Copy of the award was also made over by the District Collector, Golaghat for payment of compensation to the pattadars and notices were

served on them for receiving the compensation. But the compensation money could not be paid due to the interim order passed by this Court. Thereafter, the pattadars filed applications praying for compensation and they have no objection in handing over the land in question for the purpose of 'second addition' to Kaziranga National Park. These respondents have denied payment of revenue to the State Government by the petitioners and they had paid Tauzi Bahi revenue for their unauthorised occupation over the land. The petitioners were given all the opportunities to make their objection/written statement and the Commissioner, Upper Assam Division as Enquiry Officer appointed by the Government visited the area on several times and heard the people on the objections submitted by them. The proposed addition to the Kaziranga National Park, is necessary for the national Interest. Public interest demands that the said area should be Included in the Kaziranga National Park as it is the duty to save the endangered wild life species from the threat of extinction.

14. In Civil Rule No. 2397/98 affidavit-in-opposition has been filed on behalf of the respondents through the Divisional Forest Officer, Eastern Assam Wild Life Division, Bokakhat and denied the allegations made in the writ petition. It has been stated that most of the petitioners are residents of revenue villages located on Northern Bank of river Brahmaputra in Biswanath Circle which are not included within the limits of the notified area of proposed 'Sixth addition' to Kaziranga National Park. Though Grazing Permits were issued during the relevant period these permits were not renewed. These permits are neither heritable nor transferable and it does not confer any right on individual to get settlement of the forest/Govt. land. Further, most of the riverine 'chaporis' of the river Brahmaputra are non cadestral area. The land in question being Govt. reserved land contiguous to Kaziranga National Park and considering its topography, location and protection of wild lives the Government issued the aforesaid Notification. The Commissioner, Northern Assam Division appointed as Collector to determine the rights Under Section 18 of the Act, 1972 issued Proclamation vide Notification dated 25-10-85 in accordance with the provisions contained in Section 21 of the Act, 1972. It has been further stated that in some area of Panpur Reserved Forest eviction operation was undertaken. However, no evic-tion drive was initiated in Bogori Ati and Bhojmari (Bahumari) due to the interim stay order passed by this Court in CR 3845/94. It has also been stated that in response to the representation dated 9-12-85 submitted by the petitioners the Collector of the notified area issued Proclamation on 1-9-93 to enable the persons to prefer their claim over the area. The petitioners not having preferred any such claim before the Collector now the petitioners cannot claim right over the land in question as the formalities regarding Inclusion of the said area within the 'Sixth addition' of the Kaziranga National Park is completed.

15. 1 heard the learned Counsel for the parties.

16. Mr. S. N. Bhuyan, learned Sr. Counsel appearing for the petitioners in CR 2397/98 has submitted that the Revenue authorities issued grazing permits to the families of the petitioners in their names to rear and raise cattle in the chars and chaparis on realisation of necessary fees from time to time. But the Govt. of Assam by notification issued on 10-9-85 declared some areas occupied by the petitioners and proposed to be Included within the Kaziranga National Park in exercise of the power conferred by Section 35 of the 'Act, 1972'. The Commissioner, Northern Assam Division, Tezpur was appointed as the'Col-lector to enquire into and determine the existence, the nature and extent of any right, claim or alleged to exist in favour of any person or persons. In response to the said Notification some of the petitioners submitted representation/objection dated 9-12-85 and the Collector after hearing the petitioners and others did not pass any order. If the Impugned Notification is allowed to stand and give effect to the livelihood and property of the petitioners will be affected. It has been further stated that representation of the petitioners dated 9-12-85, 20-12-97 and 5-1-98 (Annexures-4, 8 and 12 of the WP) have not yet been disposed of nor any enquiry has been made by the authorities. According to the learned Counsel for the petitioner the impugned Notification has been issued without following due process of law which is violative of all constitutional and legal norms. Therefore, the Impugned Notification is liable to be set aside.

17. Mr. J. M. Choudhury, learned Counsel appearing for the petitioners in Civil Rule No. 1923/93 has submitted that the Notifica

tion dated 13-6-85 issued under Section 35 of the Act, 1972 proposing to constitute the area of Kanchanpuri village measuring about 89.754 hectres in Kaziranga National Park is not sustainable in law and no declaration/ acquisition can take place on the basis of such Notification. It has been argued that under the Govt. of Assam's Scheme for development of tea plantation a total amount of Rs. 32.7 lakhs of loan has already been received from ARDC in the year 1982 for cultivation of tea on the aforesaid 54 hectres of land. Approval has also been given by the Tea Board for plantation of tea and this programme is in full progress. It has been further stated that the petitioners are under occupation of 349 Bighas of land, which is a Government land, by planting tea bushes and application of settlement is pending and favourable reports have also been filed by the Sub-Deputy Collector, Kaliabor. Unless the ongoing scheme is not implemented the petitioner garden will suffer irreparable loss. According to the learned Counsel for the petitioner they are in occupation over the land for the last 60 years, therefore, the impugned declaration is violative of the procedure laid down under Section 22 of the Act, 1972. Petitioners submitted objection, however, no order was passed either admitting or rejecting their claim, at least no intimation was given to the petitioners.

18. Learned Counsel for the petitioners in other cases also submitted that the petitioners are under occupation of the land in question and in response to the impugned Notifications they submitted representations/ objections and prayed for settlement of the land in their favour, however, no order was passed on their objection. It has also been argued that the impugned Notification are issued in violation of the provisions of the Act, 1972, particularly the provisions of Sees. 19 to 26.

19. In view of the contentions of the parties the questions fall for determination are that-- (1) whether the impugned Notifications have been issued after following the due procedure and (ii) whether the petitioners are entitled to get settlement of the land in question.

20. On the rival contentions of the parties it is apposite to see some of the relevant Sections of the Act, 1972 and the necessity of issuing the impugned Notifications for addition of the villages/lands in question to the Kaziranga National Park and Burachapori Reserve Forest. Kaziranga Wild Life Sanctuary was constituted Into a National Park vide Notification dated 11-2-74 with an area of 429.95 Sq. km. During 1975 a detailed survey was carried out and total area of the Park was found to be 370 Sq. Km. approximately. Large scale of erosion took place during 1988 and so and the present area of the Park is 349 Sq. Km. (Approximately). Though erosion and accretion is a continuous process but the riverine chaporis formed due to accretion do not form part of the National Park but became revenue land. Thereafter, the Govt. of India considering the difficulties being faced by the Kaziranga National Park constituted aTask Force to go into the details of the problems and to suggest ways and means for growth and development of the park. One of the recommendations of the Task Force was extension of habitat of. Rhinos by inclusion of area of the existing Northern and Southern boundaries as well as acquisition of land forming corridors for animals. Considering the above constraints and necessities and also taking into consideration the recommendation as stated the State Government declared its intention for inclusion of 401.50 Sq. Km. (Approx.) of area along the Northern boundary by Notification dated 10-9-85 Under Section 35 of the Act, 1972 and accordingly appointed Commissioner, Northern Assam Division, Tezpur as Collector to enquire into and determine the existence, the nature and extent of any rights claimed or alleged to exist in favour of any person/persons and extinguish the same. From the records it is seen that the villagers, namely, Bagori Ati and Bhojmari No. 3 (Behumari) are situated within Panpur Reserve Forest and its first addition which has been included in the proposed addition. For the fourth addition Notification dated 13-6-85 was issued under Section 35 of the Act, 1972. As per the provisions of the Act a Proclamation had been issued by the Collector calling for claim/objection from persons interested in the said land. According to the respondent-Government no claim/objection was received within the stipulated period, therefore the Collector reported accordingly to the Government vide letter dated 19-3-87 requesting to issue final declaration in this regard. Considering the report of the Collector the Government issued final Notification vide No. FRS. 104/85/41 dated 3-8-89 declaring the area as part of the Kaziranga National Park as its fourth addition. In para

2 of the writ petition the petitioners stated that 'In respect of the said 349 Bighas of Govt. land which has been under the possession of the petitioner-Company since 1935, the Company has been paying regular Tauzi Bahira revenue since 1935'. From the records it is seen that when the land was being physically demarcated it was found that some portion of it was within the tea garden area (CR 1923/93) During the argument the counsel for the petitioner has produced seven documents to establish that the Government had passed order in the year 1988 in favour of the petitioner for settlement of the land in question.

21. Mr. H. N. Sarma, learned Govt. Advocate however, submitted that on scrutiny of the record no claim/objection submitted by the tea company could be found and the letter of the Collector dated 19-3-87 clearly states that no claims/objections were received within the stipulated period. The fact remains now that on physical demarcation, land belonging to the tea estate was found to be falling within the fourth addition of the Kaziranga National Park. In the affidavit-in-opposition filed by the Divisional Forest Officer, Bokakhat challenged the maintainability of the writ petitions on the ground that the petitioners have on legal/constitutional right to claim right, interest over the Govt. land in question as the land in question has already been included within the area of Kaziranga National Park. Mr. Sarma further submitted that the impugned Notifications were Issued after following due process of law and the allegations of the petitioners are without basis.

22. With regard to the Civil Rule 5282/95 the stand of the respondents is that at the time of constituting Burachapori as Reserved Forest in 1975 the Forest Settlement Officer was appointed who disposed of the claims etc. as per Sections 6to 16 of the Assam Forest Regulation, 1891 and Burachapori was declared as Reserved Forest under Section 17 of the said Regulation vide Gazette Notification dated 10-9-75. It has also been stated that right of grazing were granted to 342 Nos. of professional grazers of the 'khutis' but not to professional rearers by the Official Gazette dated 10-9-75. It has also been stated that the Forest (Conservation) Act, 1980 has restricted use of forest land for non-forestry purposes. However, rights of any kind may be allowed to be continued as per Section 24(2)(c) of

the Wild Life (Protection) Amendment Act, 1991 with the consultation with the Chief Wild Life Warden.

23. Section 19 of the Act, 1972 has also been amended vide Gazette of India Publication dated 20-9-91 to the effect that the appointment of Collector is not required to inquire into and determine the existence, nature and extent of right as such enquiry has already been done in 1975 at the time of constituting the Burachapori Reserved Forest. After Section 26 of the Principal Act Section 26-A(1) was inserted which runs as follows :

'26-A(1) When--

(a) a notification has been issued under Section 18 and 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 sanctuary, have been disposed of by the State Government; or

(b) any area comprised within any reserve forest or any part of the territorial waters, which is considered by the State Government to be of adequate ecological, faunal, floral, geomorphological, natural or zoological significance for the purpose of protecting, propagating or developing wild life or its environment, is to be included in a sanctuary, the State Government shall issue a notification specifying the limits of the area which shall be comprised within the sanctuary and declare that the said area shall be sanctuary on and from such date as may be specified in the notification.....'

24. Section 21 of the Act provides that Collector is required to conduct an enquiry upon the claims so preferred. Section 21 runs thus :--

'21. Proclamation by Collector -- 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 :

(a) Specifying, as nearly as possible, the situation and the limits of the sanctuary; and

(b) Requiring any person, claiming any right mentioned 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 and particulars of the compensation, if any, claimed in respect thereof.'

The sole contention of the petitioners was

that the impugned Notifications were Issued without complying the due process of law. On perusal of the records it is seen that no Tauzi Bahi had been paid by the petitioners in Civil Rule 3845/94 after 1980. They also stated that a list was prepared by the then SDC of the to the Deputy Commissioner informing the latter about the flood affected people staying therein with recommendation for allotting land in their favour. The petitioners admitted that had no title over the land they are occupying and they are landless persons and have been occupying the land in question since 1951.

25. The Article 48A of the Constitution stipulates that 'the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country'. Further Article 51A(g) of the Constitution envisages that it shall be the duty of every citizen of India 'to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures'. Since the alluvial flood plains are ecologically suitable habitat for rhinoceros, and other associated species, the Government had declared its intention to constitute/include the area in question within the area of Kaziranga National Park and Burachapori Sanctuary. It is also seen from the record that the petitioners had not preferred any claim before the Collector in response to the impugned Notifications stating their claims within the stipulated time. It is also seen that the pelitioners had been occupying the land in question, some of them, of course, by paying Tauzi Bahi, revenue. It is evident from the Notifications that the petitioners were given ample opportunity to defend their cases before the Collector but they have not preferred any objection/claim within the stipulated time and ultimately the Government in exercise of the powers conferred under the provisions of the Act, 1972 declared the area in question to be within the area of Kaziranga National Park/Burachapori Reserved Forest. It is also seen from the record that the Collector had also recommended that the Deputy Commissioner, Sonitpur District, Divisional Forest Officer, Eastern Assam Wild Life Division, Sonitpur Division should clear all encroachers and trespassers from their respective jurisdiction before handing over the same to the Kaziranga National Park authorities.

26. Acquisition proceeding has been men

tioned in Section 25 of the Act, 1972. Subsection (2) of Section 25 of the Act states that the acquisition under this Act of any land or interest therein shall be deemed to be acquisition for a public purpose. Further, Section 35 of the Act empowers the State Government, by Notification declare its intention, to constitute such area as a National Park. Subsection (3) of Section 35 states that where any area is intended to be declared as a National Park, the provisions of Sections 19 to 26 (both inclusive) shall as far as may be apply to the investigation and determination of claims, and extinguishment of rights, in relation to land in a sanctuary. Sub-section (4) of Section 35 runs thus :

'(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.'

As mentioned above, it is now one of the fundamental duties of the State 'to protect and improve environment and to safeguard the forests and wild life of the country'. Besides the State's obligation towards the society at large, the Individual members of the society themselves also owe a fundamental duty under Article 51A(g) 'to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures'. The attempt of the learned Counsel for the petitioners was to show that these Notifications were issued without following the provisions of the Act, 1972 as amended, therefore, the entire process for adding the area/land in question within the Kaziranga National Park/ Burachapori Sanctuary was illegal and violative of the provisions of the Constitution. It is an admitted fact that the land was included/added to the National Park/Sanctuary by various Notifications and the petitioners had the knowledge, as they stated in

their respective writ petitions, they filed objections/claims against the Notifications so issued by the respondent/Government. Further, non-mentioning of the names of the villages in the Notifications cannot be a ground for quashing the Notifications as these mistakes have been corrected and boundaries were specifically given in the schedule of the subsequent Notices. It is an admitted position that long occupation of Government land cannot create any legal/constitutional right over the Govt. land. As stated by the petitioners they occupied the land by paying Tauzi Bahi revenue, which is nothing but a fine on the encroachers for occupying the Govt. land. Stand of the respondents is that possession and plantation on the disputed land by the petitioners are of recent occurrence and that taking advantage of the stay orders passed by this Court in 1993 they started fullfledged plantation at their own risk over the said land. It is seen that the Notification was issued on 3-8-89 and report was given on 1-3-90, apparently made after notification and, therefore, petitioner cannot derive the benefit as the alleged recommendation is redundant one. Moreso, the land has already been annexed by fourth addition to Kaziranga National Park on 1-3-90. Record further shows that proposal for demarcation has been made during June, 1992 but the process started slowly due to heavy rain. As provided in Section 10 of the Act, 1972 after issue of Notification it is not permitted to acquire right, title within the area mentioned in the Notice.

27. Now it is to be examined whether the declaration to convert Burachapori Reserved Forest into Wild Life Sanctuary was made without having the proclamation widely circulated in the area and without inviting claims and objections in compliance with the statutory provisions.

Materials on record show that immediately before the process for declaration was started the Commissioner was appointed as Collector and all the requirements under Section 21 of the Act, was complied with. Submission of Mr. Bhuyan that declaration so made was done surreptitiously behind the back of the petitioner-Society in violation of the statutory provisions and principles of natural justice is not sustainable on the ground that materials on the record speak otherwise. Claims and objections of the interested persons/villagers were examined and

orders were also passed accordingly. Mr. Sarma, learned Sr. Govt. Advocate has submitted that these petitioners are not actual Inhabitants of the area in question and they are recent encroachers through the unprotected border. I find sufficient merit in the submissions of the learned Govt. Advocate and prefer to take judicial notice of it as large scale influx of encroachers in such a forest land is a common phenomena, putting the forest authority in innumerable and unsolvable problems at the cost of the protection of precious endangered wild life. Mr. Sarma further stated that the petitioners filed these writ petitions claiming continuous possession since a long time, but, in the fact and circumstances of the case these petitions deserve to be dismissed.

28. The Apex Court by order dated 22-8-97 passed in IA No. 2 Writ Petition (C) No. 337/95 (Centre for Environmental Law, WWF-I v. Union of India and Ors.) directed the State Government/Union Territories to issue proclamation under Section 21 of the WPA, 1972 in respect of Sanctuaries/National Parks within two months and complete the process of determination of the rights and acquisition of land or rights as contemplated by the Act within a period of one year. Further, the Apex Court in the case of M. C. Mehta v. Kamal Nath, (1997) 1 SCC 388 (para 34) held thus :--

'34. Our legal system -- based on English Common Law -- includes the public trust doctrine as part of Its Jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duly to protect the natural resources. These resources meant for public use cannot be converted into private ownership.'

29. From the above it is seen that the publication of the Notification and the addition of the areas to the Kaziranga National! Park and Burachapori Sanctuary were necessary for protection of the wild life and also to Improve environment and to safeguard the forest of the country. While adding the areas in question to the National Park/Sanctuary in question the respondents/Government followed the due process of law and I do not find any infirmity in it. It is also seen that respondents/Government invited objections/ claim from the persons interested and upon

such claim/objections filed by the persons from the area in question, after scrutiny/ verification decided to compensate them in accordance with law. From the above, it can be said that the genuine claimants will get compensation on the basis of their claim/ objection strictly under the provisions of the Act. Hence, the respondents/Government may proceed for adding the area in question to the Kaziranga National Park/Burachapori Sanctuary, if not already done, and complete the process of determination of the rights and acquisition of land or rights as contemplated by the Act as early as possible, preferably within a period of six months from today.

30. In view of the above the writ petitions are devoid of merit and accordingly these petitions are rejected. Stay orders, if any, also stand vacated. No costs.