Parimal Kumar Das Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
- - illegal poaching and hunting of wild animals, felling of trees, quarrying of rocks, lack of awareness amongst local public about the importance and significance of these endangered species have virtually threatened the existence of kakoijana reserve forest and its rich and rare flora and fauna. (wildlife), upon a reference to the reports submitted to the government of assam, it has been emphasized that there is need for better protection to save the endangered flora and fauna and eco-system. noticing the earlier experience, the board opined that protection and conservation of any area is better served with the co-operation of the neighbouring community. 9. upon a threadbare discussion of all aspects of the matter, the board has advised the government to maintain the status quo in respect of the said reserve forest in the best interest, to provide the required protection and conservation to its flora and fauna. 13. in view of the above, while not interfering with the policy decision of the government to retain the present status of kakoijana reserve forest by not converting into a wildlife sanctuary, direction is issued to take effective steps towards better management and effective protection of the habitant vis-a -vis the endemic species and the eco-system. (ii) kakoijana is an isolated hill in the midst of about more than 20 villages on its fringes continued depredation of the forest cover in these hills will lead to ecological disaster in the surrounding agricultural fields. b.k. sharma, j.1. this matter was taken up on the basis of the application dated 21.8.2006 addressed to this court by the petitioner, who is the director of the non-government organization (ngo), called appropriate technology mission, assam (atma). in the application it has been stated that kakoijana reserve forest in the district of bongaigaon covering an area around 2000 hectares (about 15,000 bighas) is a habitant of one of the rarest and highly endangered species, namely golden langur (presbytis gee) alongwith other schedule-i endangered species. according to the petitioner, it is in a serious state of negligence and vulnerability. illegal poaching and hunting of wild animals, felling of trees, quarrying of rocks, lack of awareness amongst local public about the importance and significance of these endangered species have virtually threatened the existence of kakoijana reserve forest and its rich and rare flora and fauna. further, systematic destruction of the hilly kakoijana reserve forest is leading to adverse impact on its topsoil and even moderate rainfall carries away such hill topsoil to the farmland of the neighbouring 21 villagers and is affecting farm yield of the adjacent areas.2. the petitioner who is also the head of the department, zoology, gauhati university and a scientist of indo-us primate project has expressed the opinion that the said reserve forest should be upgraded to a wildlife sanctuary. in this connection, he has referred to the reports of the chief conservator of forests (c.c.f.), (wildlife) submitted to the government of assam from time to time.3. in response to the notices issued, the respondents have filed their affidavits which are briefly discussed below.4. in the first affidavit filed by the government of assam in the department of environment and forests, it has been stated that a request had been made to the c.c.f. (wildlife), assam to submit the detailed proposal/report on the proposed declaration for upgradation of kakoijana reserve forest to wildlife sanctuary. it has been stated that on receipt of the report further action in the matter would be taken.5. in the affidavit filed by the c.c.f. (wildlife), upon a reference to the reports submitted to the government of assam, it has been emphasized that there is need for better protection to save the endangered flora and fauna and eco-system. in fact, by various reports it was emphasized that the particular reserve forest should be declared as wild life sanctuary.6. in the affidavit filed by the government of india, it has been stated that the government of india is very much concerned about the conservation of golden langur and other endangered species. it has been further stated that the central government has provided all financial assistance to the government of assam for undertaking suitable measures for protection of golden langur and flora and fauna and their habitants which include eco-development and anti-poaching and awareness activities. further stand in the affidavit is that appropriate initiatives have been taken by the state government in the matter and that such steps and proposal should come to its logical end. upon reference to the provisions of wild life protection act, 1972, the stand taken is that 'wildlife sanctuary' with adequate ecological, faunal, flora, geomor-phological, natural or zoological significance for the purpose of protecting, conserving and propagating or developing any particular endangered species and its habitant lies under exclusive jurisdiction of the state government.7. after the aforesaid developments, the matter was placed before the state board of wild life and the board in its meeting held on 17.3.2007 decided to maintain the existing reserve forest with full protection. it was also decided not to convert the reserve forest to a wildlife sanctuary.8. the aforesaid resolution adopted by the board in its meeting on 17.3.2007 having been brought to the notice of this court, this court by its order dated 11.4.2007 directed the state government to file affidavit detailing the reasons assigned in the board's meeting held on 17.3.2007.pursuant to the aforesaid order of this court, the government of assam in the forest department has filed further affidavit on 27.3.2008. in paragraph 2 of the affidavit, it has been stated that the board after discussion and considering the proposal etc. opined that mere conversion of kakoijana reserve forest into a wild life sanctuary cannot achieve the desired goal. as per the opinion of the board, the reserve forest which is under the protection of joint forest management committee, if converted to a wildlife sanctuary, there is likelihood of the community losing its interest and consequently its protection will have to be ensured entirely by the departmental staff through enforcement. noticing the earlier experience, the board opined that protection and conservation of any area is better served with the co-operation of the neighbouring community.9. upon a threadbare discussion of all aspects of the matter, the board has advised the government to maintain the status quo in respect of the said reserve forest in the best interest, to provide the required protection and conservation to its flora and fauna. further, the board has also observed that in case it is found that the protection and conservation of the reserve forest is deteriorated with the present scheme and thing, the government should consider conversion of the said reserve forest into a wildlife sanctuary 10. on the basis of the resolution adopted by the board, the government has decided not to declare the reserve forest as a wildlife sanctuary for the present. further it is the stand of the government that the decision will be reviewed from time to time and upon such review appropriate decision in the matter will be taken.11. from the stand of the government what has transpired is that it has accepted the report furnished by the board not to convert the reserve forest into a wildlife sanctuary for the present. however, the decision of the government is not final and the proposal for converting the reserve forest into a wild life sanctuary has been kept open to be considered in the future upon review of the state of affairs with the reserve forest.12. there is no gainsaying that as to whether the particular reserve forest is to be converted and/or upgraded to a wildlife sanctuary, is a matter within the domain of the policy decision of the government. the state board for wildlife in consideration of various aspects of the matter including the reports furnished by the c.c f. (wildlife) has resolved not to convert the reserve forest into a wild life sanctuary. the report submitted by the board has been accepted by the state government. as stated in the affidavit filed on 27.3.2008, the state will undertake adequate measures for protection and conservation of flora and fauna of the reserve forest. the matter relating to conversion of the reserve forest into a wildlife sanctuary has not attained its finality and the same has been kept open by the government. a decision in the matter in future depends on revelations from time to time on the state of affairs of the reserve forest.13. in view of the above, while not interfering with the policy decision of the government to retain the present status of kakoijana reserve forest by not converting into a wildlife sanctuary, direction is issued to take effective steps towards better management and effective protection of the habitant vis--vis the endemic species and the eco-system. the state government shall bear in mind the suggestions made by the c.c.f. (wildlife), assam in his report dated 22.7.2002 quoted below:(i) it harbours 4/5 troupes of golden lan-gur - the critically endangered and endemic species which is only found along the foot hills of bhutan upto the east of manas national park and few in chakrasila wildlife sanctuary, kakoijana is an isolated putch of hilly forest. chaprakata and bemuni hill are the two tiny usfs located near it. if the habitat of kakoijana is not improved and protected, the species will meet extinction.(ii) kakoijana is an isolated hill in the midst of about more than 20 villages on its fringes continued depredation of the forest cover in these hills will lead to ecological disaster in the surrounding agricultural fields.(iii) removal of forest cover in the hill will impact adversely on the water regime of the area and all strums originated from the hill will also dry up.14. with the above observations and directions, the writ petition is disposed of.

Judgment:

B.K. Sharma, J.

1. This matter was taken up on the basis of the application dated 21.8.2006 addressed to this Court by the petitioner, who is the Director of the Non-Government Organization (NGO), called Appropriate Technology Mission, Assam (ATMA). In the application it has been stated that Kakoijana Reserve Forest in the District of Bongaigaon covering an area around 2000 hectares (about 15,000 bighas) is a habitant of one of the rarest and highly endangered species, namely Golden Langur (Presbytis Gee) alongwith other Schedule-I endangered species. According to the petitioner, it is in a serious state of negligence and vulnerability. Illegal poaching and hunting of wild animals, felling of trees, quarrying of rocks, lack of awareness amongst local public about the importance and significance of these endangered species have virtually threatened the existence of Kakoijana Reserve Forest and its rich and rare flora and fauna. Further, systematic destruction of the hilly Kakoijana Reserve Forest is leading to adverse impact on its topsoil and even moderate rainfall carries away such hill topsoil to the farmland of the neighbouring 21 villagers and is affecting farm yield of the adjacent areas.

2. The petitioner who is also the Head of the Department, Zoology, Gauhati University and a Scientist of Indo-US Primate Project has expressed the opinion that the said reserve forest should be upgraded to a Wildlife Sanctuary. In this connection, he has referred to the reports of the Chief Conservator of Forests (C.C.F.), (Wildlife) submitted to the Government of Assam from time to time.

3. In response to the notices issued, the respondents have filed their affidavits which are briefly discussed below.

4. In the first affidavit filed by the Government of Assam in the Department of Environment and Forests, it has been stated that a request had been made to the C.C.F. (Wildlife), Assam to submit the detailed proposal/report on the proposed declaration for upgradation of Kakoijana Reserve Forest to Wildlife Sanctuary. It has been stated that on receipt of the report further action in the matter would be taken.

5. In the affidavit filed by the C.C.F. (Wildlife), upon a reference to the reports submitted to the Government of Assam, it has been emphasized that there is need for better protection to save the endangered flora and fauna and eco-system. In fact, by various reports it was emphasized that the particular reserve forest should be declared as Wild Life Sanctuary.

6. In the affidavit filed by the Government of India, it has been stated that the Government of India is very much concerned about the conservation of Golden Langur and other endangered species. It has been further stated that the Central Government has provided all financial assistance to the Government of Assam for undertaking suitable measures for protection of Golden Langur and flora and fauna and their habitants which include eco-development and anti-poaching and awareness activities. Further stand in the affidavit is that appropriate initiatives have been taken by the State Government in the matter and that such steps and proposal should come to its logical end. Upon reference to the provisions of Wild Life Protection Act, 1972, the stand taken is that 'Wildlife Sanctuary' with adequate ecological, faunal, flora, geomor-phological, natural or zoological significance for the purpose of protecting, conserving and propagating or developing any particular endangered species and its habitant lies under exclusive jurisdiction of the State Government.

7. After the aforesaid developments, the matter was placed before the State Board of Wild Life and the Board in its meeting held on 17.3.2007 decided to maintain the existing reserve forest with full protection. It was also decided not to convert the reserve forest to a Wildlife Sanctuary.

8. The aforesaid resolution adopted by the Board in its meeting on 17.3.2007 having been brought to the notice of this Court, this Court by its order dated 11.4.2007 directed the State Government to file affidavit detailing the reasons assigned in the Board's meeting held on 17.3.2007.

Pursuant to the aforesaid order of this Court, the Government of Assam in the Forest Department has filed further affidavit on 27.3.2008. In paragraph 2 of the affidavit, it has been stated that the Board after discussion and considering the proposal etc. opined that mere conversion of Kakoijana Reserve Forest into a Wild Life Sanctuary cannot achieve the desired goal. As per the opinion of the Board, the reserve forest which is under the protection of Joint Forest Management Committee, if converted to a Wildlife Sanctuary, there is likelihood of the community losing its interest and consequently its protection will have to be ensured entirely by the departmental staff through enforcement. Noticing the earlier experience, the Board opined that protection and conservation of any area is better served with the co-operation of the neighbouring community.

9. Upon a threadbare discussion of all aspects of the matter, the Board has advised the Government to maintain the status quo in respect of the said reserve forest in the best interest, to provide the required protection and conservation to its flora and fauna. Further, the Board has also observed that in case it is found that the protection and conservation of the reserve forest is deteriorated with the present scheme and thing, the Government should consider conversion of the said reserve forest into a Wildlife Sanctuary

10. On the basis of the resolution adopted by the Board, the Government has decided not to declare the reserve forest as a Wildlife Sanctuary for the present. Further it is the stand of the Government that the decision will be reviewed from time to time and upon such review appropriate decision in the matter will be taken.

11. From the stand of the Government what has transpired is that it has accepted the report furnished by the Board not to convert the reserve forest into a Wildlife Sanctuary for the present. However, the decision of the Government is not final and the proposal for converting the reserve forest into a Wild life Sanctuary has been kept open to be considered in the future upon review of the state of affairs with the reserve forest.

12. There is no gainsaying that as to whether the particular reserve forest is to be converted and/or upgraded to a Wildlife Sanctuary, is a matter within the domain of the policy decision of the Government. The State Board for Wildlife in consideration of various aspects of the matter including the reports furnished by the C.C F. (Wildlife) has resolved not to convert the reserve forest into a Wild Life Sanctuary. The report submitted by the Board has been accepted by the State Government. As stated in the affidavit filed on 27.3.2008, the State will undertake adequate measures for protection and conservation of flora and fauna of the reserve forest. The matter relating to conversion of the reserve forest into a Wildlife Sanctuary has not attained its finality and the same has been kept open by the Government. A decision in the matter in future depends on revelations from time to time on the state of affairs of the reserve forest.

13. In view of the above, while not interfering with the policy decision of the Government to retain the present status of Kakoijana Reserve Forest by not converting into a Wildlife Sanctuary, direction is issued to take effective steps towards better management and effective protection of the habitant vis--vis the endemic species and the eco-system. The State Government shall bear in mind the suggestions made by the C.C.F. (Wildlife), Assam in his report dated 22.7.2002 quoted below:

(i) It harbours 4/5 troupes of Golden Lan-gur - the critically endangered and endemic species which is only found along the foot hills of Bhutan upto the east of Manas National Park and few in Chakrasila Wildlife Sanctuary, Kakoijana is an isolated putch of hilly forest. Chaprakata and Bemuni hill are the two tiny USFs located near it. If the habitat of Kakoijana is not improved and protected, the species will meet extinction.

(ii) Kakoijana is an isolated hill in the midst of about more than 20 villages on its fringes continued depredation of the forest cover in these hills will lead to ecological disaster in the surrounding agricultural fields.

(iii) Removal of forest cover in the hill will impact adversely on the water regime of the area and all strums originated from the hill will also dry up.

14. With the above observations and directions, the writ petition is disposed of.