Nature Park Walkers Association Vs. State of Andhra Pradesh - Court Judgment

Excerpt:
constitution - acquisition - section 35 of wild life (protection) act, 1972 - permits issued to morning walkers for entry in park which government intended to acquire - permit system introduced after issuance of preliminary notification and before final notification - action of government question - held, action perfectly valid and not liable to be quashed. - - 330 dated 7-1-1990 which was only to keep it as a 'lung space' for the city, that the object of the wild life protection act was only to preserve animals which is inconsistent with maintenance of large park inside the city and there are really no wild animals in that area, that generally national parks which form large areas of a minimum 50,000 hectares, whereas the present area is only 156 hectares, that the policy with.....order1. these two writ petitions challenging the notification by which the area in jubilee hills known as kasu brahmananda reddy national park was notified as a national park.2. the first writ petition no.775 of 1994 was filed when the petitioners who were usually going for a walk in that area found that the gate of that park was closed and they were barred entry. they referred to g.o.ms.no.330dated 7-1-1990 by which this area which originally belonged to prince mukkaram jah was taken over by the government and entrusted to the forest department for maintenance. in that g.o., it is stated that the government has decided to entrust the land to the forest department for developing it into a 'green park', and that the entire land shall be used for developing a park for the benefit of the.....

Judgment:
ORDER

1. These two writ petitions challenging the notification by which the area in Jubilee Hills known as Kasu Brahmananda Reddy National park was notified as a National Park.

2. The first writ petition No.775 of 1994 was filed when the petitioners who were usually going for a walk in that area found that the gate of that park was closed and they were barred entry. They referred to G.O.Ms.No.330dated 7-1-1990 by which this area which originally belonged to Prince Mukkaram Jah was taken over by the Government and entrusted to the Forest Department for maintenance. In that G.O., it is stated that the Government has decided to entrust the land to the Forest Department for developing it into a 'Green Park', and that the entire land shall be used for developing a park for the benefit of the people as 'lung space' in the city. An interim direction was given in that writ petition to allow the petitioners to enter the park and, thereafter, the respondents including the impleaded respondent filed an application to vacate the interim direction. On 29-4-1994, a final order was given in the CMP., permitting the respondent to regulate entry into the park. The second writ petition has been filed against the notification dated 19-3-1994 made under Section 35 of the Wild Life Protection Act intending to declare the area as a National Park. Another Writ Petition No. 117040/97 was also filed for the direction to the respondent to withdraw the said notification.

3. The learned Counsel for the petitioners submitted that the declaration of the area as national park was contrary to the intention given in G.O.330 dated 7-1-1990 which was only to keep it as a 'lung space' for the city, that the object of the Wild Life Protection Act was only to preserve animals which is inconsistent with maintenance of large park inside the city and there are really no wild animals in that area, that generally national parks which form large areas of a minimum 50,000 hectares, whereas the present area is only 156 hectares, that the policy with reference to development of forests has moved from pure conservation to participation and consequently the right of the public to participate and enjoy the park cannot be defeated by any restrictive regulation. Reliance was placed on T. Damodhar Rao v. Municipal Corporation, Hyderabad, : AIR1987AP171 to contend that the right to enjoy the park is a fundamental right and D.D. Vyas v. Ghaziabad Development Authority, : AIR1993All57 to contend that parks arc essential to the well-being of a city. It was therefore submitted that the recent restrictions limiting the pathway overwhich the petitioners used to take a walk and also the treatment given to the petitioners by the forest personnel amounted to harassment and violation of the interim directions of this Court. Hence, contempt petition was also filed. It was submitted that in the circumstances, the notification should be set aside and the park should be kept open for the free access to the public.

4. On the other hand, the learned Advocate-General submitted that the notification was made at the instance of the expert opinion of the Chief Conservator of Forests who has given a note on certain aspects of the ecological atmosphere in the area and, therefore, the preliminary notification was given to which objections could be made by any person interested before a final notification is made. Consequently, it was argued that even if it is to be considered to be an ordinary park, Government, as a custodian of a public property, has a right to regulate the entry for protection of that public property. He submitted that the recent restrictions were intended only to protect and conserve the area and docs not amount to any harassment.

5. The perusal of the Wild Life Protection Act shows that the Government has been enabled to declare any area as a national park for the purpose of conserving the biological and geological ecology. At the same time, I am unable to find any particular section or rule which provides prior consultation with the Advisory Board for selecting an area for declaration as a national park, even though Section 8 of the Act provides that one of the duties of the Wild Life Advisory Board is to advise the Government on that aspect. In any cases, the notification in question is only a preliminary notification and the Government is bound to hear the objections before making a final notification. The learned Advocate-General suggests that necessary expert advice could be taken by the Government before making final notification. As at present advised it would be proper to consider this as a park which is not yet notified as at national park but the power of the Government to regulate the entry for the protection cannot be gain-said. No doubt, if it is notified, the Act and rules provide for collection of fees and for granting permits for entering the area which is the reason why interim direction was given to the respondents to grant permits. I am of the opinion that the same system of granting permits can continue. In these circumstances, I see no reason to strike down the notification except to say that the Government shall consider all the objections to the notification as well as consult the Wild Life Advisory Board before making final notification. Until final notification is made, entry to the park shall be regulated by permits to be given by the Forest Department.

6. The petitioners have been irked by two factors, the first of which is the length of the pathway, which was in use, has been cut to about 1/3. The records do not show any reason or application of mind before this restrictions were put into force. The counter affidavit, however, justifies the restriction by stating that it was required for the purpose of conserving the botanical and geological ecology of that area. The learned Counsel for the petitioners submitted that their activities of walking on well-laid paths could not be. a danger to the conservation of that area, particularly, when the members of the petitioners association are educated people well aware of environmental protection. Justification in the circumstances appears to be an after thought. 1 therefore, direct the Government to reconsider whether such a restriction is indeed necessary and in consultation with the petitioners' representatives define the pathway which the petitioners' association can take for the purpose of their morning walk, The second point was that the issue of new fresh passes has been stopped. The justification for this is that a large number of passes have already been given and, therefore, the park cannot accommodate more people. The learned Counsel for the impleaded respondent also submitted that the conservation of the Wild Life, particularly bird species is very important and since the constant presence of the human beings will be disturbing to them, there should be severe restriction on entry of any persons. I am unable to accept this contention because,oven in birds' sanctuaries public arc entitled and in fact allowed to enter and watch the birds. The restriction has to be reasonable and unless some expert evidence is given to say that such restriction is necessary for the purpose of conservation of any particular species or at particular times such as breeding seasons it is not possible to accept wholly the restriction of the entry into any area which really belongs to the public and which the public are entitled to enjoy. There is of course the concept of the 'tragedy of the commons' in the sense that where a large number of people rush into a very attractive place, the place itself gets spoiled and loses its attraction. In these circumstances, the question of issuing fresh passes will be limited for the present only to the claim of the petitioners' association. They claim that their membership is about 600 and the members who have recently joined in the association are being denied permits.

7. After hearing the learned Advocate-General, I am of the view that the department should consider granting permits to the members of the petitioners' association, particularly when they are not likely to cause any damage to the area. Therefore, there shall be a direction to the department to consider applications of the members of the association for entry into the park on fulfilling the usual conditions applicable to all such permits.

8. What remains is a minor issue which to the petitioners appears to be a constant irritation. This is their feeling that they are not treated with proper dignity and courtesy by the staff of the Forest Department manning the park. The learned Advocate-General was instructed by the Department to say that there were no incidents of rude behaviour and that the petitioners cannot object to regular checks to see whether the persons inside the Park have a valid permit. This did not satisfy or ameliorate the grievance of the petitioners as it is pointed out that the members of the association are regular visitors well-known to the staff and if by chance one of the members does not happen to have the identity card, it cannot be an excuse for ticking him off. A smart Government would sec that the staffwho have to interact with the public are selected with reference to their known disposition and polite and responsive behaviour. 1 am sure, the Chief Conservator of Forests will see to it that such complaints do not occur by either keeping responsive staff to man the gates or training them in appropriate behaviour. The learned Counsel for the petitioner also submitted that one of the gates was being closed forcing the petitioners to go round the park for entry and this was defended by the learned Government Pleader unnecessarily, Once the permit is given to walk in the park, I am unable to see any justification for compelling them only through one gate and closing the gate which was being normally used hitherto. If only the learned Government Pleader had given an assurance that the gate would be kept open in the morning for the convenience of those who come only for a walk, it would have soothened ruffled feelings. I hope and trust that there will be greater responsiveness to the needs of the citizens particularly when nothing is lost to the Department by meeting those needs.

9. With these directions, writ petitions are disposed of and the contempt case is closed.