Suo Motu vs 7.2015 As Modified In October ...

(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)

1. In this public interest petition, the Court is examining various issues concerning the Gir Wildlife Sanctuary. Over a period, Page 1 of 9 HC-NIC Page 1 of 9 Created On Sat May 07 03:44:08 IST 2016 C/WPPIL/284/2014 ORDER several orders have been passed giving directions to the State authorities. In one such order dated 02.07.2015, the Court noted that the Government had tendered a policy dated 01.07.2015 seeking to regulate the land use within the periphery of 10 kilometers of the Sanctuary referred to as Eco sensitive zone. The Court had some early concerns about the provisions made in such policy. The Court, therefore, while asking the Government to provide data on the permissions already granted in such zone, issued following interim directions.

"6. Earlier interim relief granted shall continue with further direction that no permission whatsoever shall be granted in eco sensitive zone of 10 kms of Gir periphery area (Girl Wildlife Sanctuary, Gir National Park, Paniya Sanctuary and Mitiyala Sanctuary) without express permission of this Court."

2. As per this order dated 02.07.2015, no land development permission would be granted by the Government in the entire periphery area of 10 kilometers from the sanctuary without the leave of the Court.

3. Representations have come before the Court from various quarters, particularly, the Gram Panchayats and residents of the villages situated within such area requesting for lifting the rigors of the order dated 02.07.2015. Case of these representing bodies is that, on account of complete ban on any development, in approximately 396 villages situated in the zone, even most basic and essential developmental activities have come to a halt. A small farmer family would not be able to add a single room to Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat May 07 03:44:08 IST 2016 C/WPPIL/284/2014 ORDER his existing residential unit, no matter what his current requirements may be. It would also not be possible to construct a small godown for his agriculture produce and agriculture implements. A private or even a Government hospital cannot be constructed. These concerns were shared by the learned Additional Advocate General Mr. Jani also who submitted that the Government may be allowed to promulgate policy of 01.07.2015 as modified in October 2015. He, however, agreed that if any suggestions are made by the Court, the same would be incorporated in the policy which may be promulgated.

4. In this context, we had heard learned advocates appearing for all sides. Learned advocate Mr. Hemang Shah appearing for one of the respondents submitted that the proposed policy of the Government is challenged by the said respondent in the writ petition being Special Civil Application No. 6848 of 2016 and the said writ petition is pending before another Bench, in which, the principal contention of the petitioner is that, it is exclusively within the Central Government under the Environment Protection Act to notify an Eco-sensitive zone and regulate the development within such zone. This would require calling for objections from interested persons and taking a decision before notifying the area and the restricted land uses.

5. Learned counsel Mr. Gori appearing as amicus curiae made certain suggestions for improving and better implementation of the Government policy. In particular, he drew our attention to Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat May 07 03:44:08 IST 2016 C/WPPIL/284/2014 ORDER para 6.2 of the policy which envisages no development to be allowed within 50 meters of a ravine or 100 meters from a river. He submitted that the suggestions made by the State Government to the Central Government in the past, had provided restrictions extended to 1 kilometer from the center of the rivers. He submitted that the rivers and adjacent areas provide ideal corridor for the lion movement. If such corridors are choked, movement of the lions would be hampered.

6. Learned Additional Advocate General submitted that even before the current proposed policy, the Government had already provided for a mechanism for controlling the land uses within the periphery of 10 kilometers, powers for which can be traced to the Bombay Land Revenue Code which would authorize the Government to impose conditions before granting permission for change of user of the land. He, however, submitted that within the restrictions envisaged in the said policy dated 01.07.2015, permission for development should be granted since large number of residents in the said villages have been prevented from carrying out any developmental activities since 02.07.2015. Regarding the restrictions along the rivers, he submitted that the suggestion of the State Government referred to by Shri Gori provided total ban on any polluting industries, mining activities or any hostile land uses and did not suggest imposition of complete ban on any use of the land other than agriculture.

Annexure-I gives details of Riverine corridors and proposed Eco sensitive areas on both sides of the rivers.

In Gir National Park and sanctuary, along the different river corridor and other landscape routes which connect the isolated lion habitats, it is proposed that 1 km area taken on both sides from the center of the River may be declared as Eco sensitive areas to prevent polluting industries, mining activities or any hostile land uses, to crop up in these areas. Existing forest patches and vegetative cover along the rivers routes and all RF, PF and unclassed forest outside Gir PA should be protected and managed to facilitate movement of animals from source area i.e. the Gir PA to the Satellite habitat which in turn will provide gene exchange between the populations."

7. Insofar as the legality of the Government's proposed policy is concerned, we propose to make no comments. Firstly, this policy is already under challenge in an independent writ petition which is pending before another Bench. Secondly, there is no formal change to this policy in this petition. Thirdly, in any case, we do not have complete data and literature to examine any such challenge. We, therefore, completely segregate the question of the validity of the proposed policy to be judged in the pending petition.

8. Through the discussion with the counsel for the parties, we would make a few suggestions for modifying the policy which, in our opinion, will make it more effective, workable and Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat May 07 03:44:08 IST 2016 C/WPPIL/284/2014 ORDER useful. We would, thereafter, permit the Government to promulgate such policy and permit land development strictly in consonance with such policy. We recognize the need for regulation of land development in the periphery areas of the Wildlife Sanctuary. At the same time, the complete ban on any developmental activity in an area, which is as vast as in the present case and which contains as many as 396 villages, without matching provisions for rehabilitation, resettlement or compensation may also not be a workable solution. On one hand, therefore, while being conscious about the need for protection of forest, environment and wildlife which would require extremely careful and regulated development within the Eco-sensitive zone, we must also be aware about the basic requirements and needs of the local population. In order to balance the two, we would make certain suggestions to the Government to be incorporated in its proposed policy and thereafter, leave the land development within such area in accordance with such regulations.

9. First would be in relation to para 6.2 in the existing form which provides that within these areas [i.e. falling within 10 kilometers of the Sanctuary] in ravine and villages within this area, no construction would be permissible within 50 meters and 100 meters respectively. Learned advocate Mr. Gori is correct in pointing out that these ravines, and particularly, the rivers with the adjoining areas, would be ideal movement corridors for wildlife principally, the lions. If these ares are choked by over Page 6 of 9 HC-NIC Page 6 of 9 Created On Sat May 07 03:44:08 IST 2016 C/WPPIL/284/2014 ORDER development or are allowed to be developed in such a way as would disturb the natural movement and habitat of the wildlife, a permanent damage may be caused. At the same time, perusing the State Government suggestions made to the Central Government, we find that the range of 1 kilometer from the center of the river on either side was specified for complete ban on polluting industries, mining activities or any hostile land uses. It would, therefore, not be correct to substitute present prescription which ban all activities by the distance of 1 kilometer. At the same time, the existing prescription of 50 meters and 100 meters from ravines and rivers respectively would need some modification. We, therefore, suggest to the Government to recast this para 6.2 by providing complete ban on any construction within 100 meters from a ravine and 200 meters from the edge of the river on either side. This clause would also provide that, in any case, the construction beyond such area also up to 1 kilometer shall not be in the nature of hostile land use. What would be hostile land use, however, would have to be judged on case to case basis.

10. Para 10 of this policy covers general instructions. Para 10.1 thereof clarifies the position of those cases, where permissions have been granted in the past and construction has either being carried out or in some cases, may also have not been carried out. We do recognize that if a permission has already been granted in the past by the competent authority and development, in consonance with such permission, is already Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat May 07 03:44:08 IST 2016 C/WPPIL/284/2014 ORDER carried out, it would not be possible to govern such cases by the new policy. However, learned Additional Advocate General Mr. Jani also agreed that in the past, certain permissions were granted by the local authorities which may be questionable. In other words, permissions may have been granted not entirely in consonance with the existing rules and regulations. Considering the importance of the area and the sensitivity, in our opinion, cases where the permissions have been granted in the past but development has not been carried out, it should be open for the Government to examine whether the permissions were granted in consonance with the existing rules and regulations. In such cases, therefore, where permissions were granted in the past but no substantial development has been carried out, before starting further development, the person concerned would take no objection from the Collector. This clause will be incorporated in para 10.1 which would be suitably modified.

11. Existing para 10.2 envisages that all amenities created before the resolution dated 13.01.2012 and within the sanctioned lay out plan, would be treated as regular. However, from the date of the promulgation of the policy, no new construction against the terms of this policy would not be permissible. This clause, in our opinion, is open to misinterpretation and possible misapplication. The intention behind this clause appears to be not to re-open the land development which is otherwise regular and which has already been taken place. The same purpose can be better achieved by Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat May 07 03:44:08 IST 2016 C/WPPIL/284/2014 ORDER providing that the construction, which is already carried out which is regular and in consonance with the permission granted, would not be governed by the new policy.

12. With these suggested modifications, we permit the Government to promulgate its land use policy by issuing Government Resolution. Once this is done, prohibition contained in the order dated 02.07.2015 shall not apply.

13. Learned counsel Ms. Patel for the Union of India submitted that the Government of India is in the process of notifying the Eco-sensitive zone and once the same is done, the entire land development and use would be governed by such policy. We take note of her statement.

14. Nothing stated in this order would indicate anything on the validity of the policy either in terms of the power of the Government or the propriety to impose such conditions which is at large in another petition.

S.O. to 15.06.2016.

(AKIL KURESHI, J.) (A.Y. KOGJE, J.) Jyoti Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat May 07 03:44:08 IST 2016