Chandra Bhal Singh vs State Of Raj And Ors
2022 Latest Caselaw 3998 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                 D.B. Civil Writ Petition No. 546/2016

Chandra Bhal Singh
                                                                   ----Petitioner
                                    Versus
State Of Raj And Ors
                                                                 ----Respondent

Connected With D.B. Civil Writ Petition No. 17036/2015 Abhiyan Peoples Voice

----Petitioner Versus State Of Rajasthan Through Chief Secretary

----Respondent D.B. Civil Writ Petition No. 9061/2018 Suo Motu

----Petitioner Versus State Of Raj And Ors

----Respondent D.B. Civil Writ Petition No. 12279/2018 Babu Lal Jajoo Son Of Shri Balu Ram Jajoo

----Petitioner Versus Member Secretary National Tiger Conservation Authority

----Respondent D.B. Civil Writ Petition No. 22656/2018 Tejmal Meena Son Of Late Shri Bhanwar Lal Meena,

----Petitioner Versus State Of Rajasthan

----Respondent D.B. Civil Writ Petition No. 2627/2019 Chandrabhal Singh S/o Shri Chandra Mauleshwar Singh

----Petitioner Versus Union Of India

----Respondent D.B. Civil Writ Petition No. 13703/2020 Badri Lal Meena S/o Harphool Meena

(2 of 13) [CW-546/2016]

----Petitioner Versus State Of Rajasthan

----Respondent D.B. Civil Writ Petition No. 3992/2021 Suo Motu

----Petitioner Versus State Of Rajasthan

----Respondent D.B. Civil Writ Petition No. 7567/2021 Chandra Bhal Singh S/o Chandramauleshwar Singh

----Petitioner Versus State Of Rajasthan

----Respondent

For Petitioner(s) : Mr. Yash Sharma, Adv.

Mr. Pradeep Choudhary, Adv.

Mr. Pradeep Mathur, Adv.

Mr. Ajay Kumar Jain, Adv.

For Respondent(s) : Mr. R.D. Rastogi, ASG with Mr. C.S.

Sinha, Adv.

Mr. R.P. Singh, AAG with Mr. Hemant Kothari, Adv.

Mr. Abhishek Sharma, Amicus Curiae Mr. Anand Kumar, Principal Secretary Revenue, present in person Mr. Shikhar Agrawal, Principal Secretary Forest, present in person Mr. Arindam Tomar, Chief Wildlife Warden, present in person Mr. Suresh Ola, Collector, Sawaimadhopur, present in person Mr. Sunil Bishnoi, SP, Sawaimadhopur, present in person Dr. Deep Narayan Pandey, HOFF, present in person

HON'BLE MR. JUSTICE PRAKASH GUPTA HON'BLE MR. JUSTICE SAMEER JAIN

Order

20/05/2022

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1. Heard at length. In the background of order dated

19/05/2022, the present matters pertaining to Forests, Wild Life

Sanctuaries, Forest Reserves, Tiger Reserves, etc. situated at

Ranthambore, Sariska, Nahargarh, Jhalana and other forest

reserves qua the illegal mining in the said area and

encroachments etc. were directed to be listed.

2. Different matters which were listed before this Court were

considered. On perusal of the same, it was reflected that the

Forests, Wild Life Sanctuaries, Forest Reserves, Tiger Reserves,

etc., in the territorial jurisdiction of this Court, even after issuance

of notifications under the respective statutes like Indian Forest

Act, 1927, The Wildlife Protection Act, 1972 as a forest reserve or

a sanctuary, are not duly entered in the revenue records because

of which colonies, hotels, encroachments, industrial areas are

mushrooming up in the said areas. There is lack of coordination or

a deliberate ignorance on the part of the State Instrumentalities.

3. In one of the writ petitions titled as Abhiyan Peoples Voice

Vs. State of Rajasthan (DBCWP-17036/2015), which has been

filed as a Public Interest Litigation, it is contended by Mr. AK Jain,

learned counsel for the petitioner that the land was declared as

forest land under Section 5 of the Jaipur Forest Act, 1939 on

15/10/1947 quantifying 34560 acres of land. On 19/11/1961,

30000 acres of land was declared as forest land under Section 20

of the Rajasthan Forest Act, 1953. On 06/03/2006, directions

were issued to the District Collector, Jaipur and the Chief

Conservator of Forest, Jaipur to restore back the land in

possession of the Forest Department, by 31/03/2006. However,

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nothing has been done by the respondents rather illegal colonies

have cropped up and 600 bighas of land has been given up to the

Vishwakarma Industrial Area, Jaipur which is contrary to the Apex

Court Judgment rendered in T.N. Godavarman Thirumulkpad

Vs. Union of India & Ors.: (1997) 2 SCC 267.

4. Similarly in another writ petition titled as Babu Lal Jajoo Vs.

Member Secretary, National Tiger Conservation Authority (DB Civil

Writ Petition No.12279/2018), it is agitated that hotels are

established within the periphery of Ranthambore National Park

which is contrary to the judgment rendered in T.N. Godavarman

Thirumulkpad (supra) and against the order dated 04/12/2006

of the Apex Court passed in Goa Foundation Vs. Union of India

(Writ Petition No.460/2004). One hotel 'Sher Bagh' has

opened its gate within the National Park, Ranthambore

encroaching the said area and the entry gate is also opened in the

name of 'Bhomiyaji'. It is further alleged that Walkie Talkies are

used by the Gypsy drivers as a result there is overcrowding,

violation of the guidelines of the Apex Court and even night safaris

are carried out. The said reflections are illustrated in the writ

petition.

5. In another set of writ petition bearing DB Civil Writ Petition

No.13703/2020 (Badri Lal Meena Vs. State of Raj.), it is claimed

that there is an illegal transfer of forest land in Sawaimadhopur for

non-forest industries to RIICO by the District Collector. In spite of

the land being declared as reserved forest land in 1963, the land

has not been mutated. The Industrial Department/RIICO have

initiated work and allocated budget in the reserved forest. On

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16/11/2015, the District Collector, Sawaimadhipur has set apart

the said land for industrial use which is not permissible under the

Act. The Deputy Conservator of Forest vide his letter dated

25/09/2020 objected to the said action but no heed has been

paid. This Court has also granted an interim protection.

6. In another set of writ petition Suo Motu Vs. State of Raj.&

Ors. (DB Civil Writ Petition No.9061/2018) pertaining to Sariska

Sanctuary, it was submitted that there is death of tiger cubs and

103 posts of Forest Guards are required to be created and there

has to be reallocation of villagers from the forest land.

7. A very important issue was also raised by Shri Pradeep

Chaudhary, Advocate and Shri Prateek Mathur, Advocate in DB

Civil Writ Petition No.546/2016 (Chandra Bhal Singh Vs. State of

Raj. & Ors.) that as required under Section 38V of the Wild Life

(Protection) Act, 1972 and in light of judgment of the Hon'ble

Apex Court in Ajay Dubey Vs. National Tiger Conservation

Auth. & Ors. in (SLP No.21339/2011), the guidelines specified

vide notification dated 15.10.2012 'Guidelines Tourism in and

around Tiger Reserves' are not followed in letter and spirit nor

Tiger Conservation Plan (TCP) for the period 2023-34 is forwarded

to the Ministry of Environment and Forest ('National Tiger

Conservation Authority' in short NTCA) till date.

8. We have considered the aforesaid writ petitions and

arguments advanced therein. The present matter has seized us

with a grave issue today. It is very sorry state of affairs that the

respondents, in spite of notification issued under the respective

statutes i.e. the Indian Forest Act, 1927, Wild Life Protection Act,

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1972 and other relevant Legislations, the State Authorities have

not carried out their duties for the reasons best known to them.

9. The forest land, which is notified for a given purpose and is

lung of the State and green belt is exploited, encroached and

eaten away due to negligence and malafides of the State

Instrumentalities/respondents. Irreparable loss is caused to the

State, the direct effect is reflected on the environment.

10. Forests, home to 80% of remaining terrestrial biodiversity,

regulate water cycles, maintain soil quality, reduce risks of natural

disasters and maintain the temperature of earth. The world loses

about 14.5 million hectares of land each year. More changes have

happened in the past century than in the previous 2,50,000 years

of human history. The earth is constantly in flux. With all the

interventions that we have made with the ecosystem, we have

entered the age of Anthropocene, a geological epoch, in which the

collective activities of human beings have started substantially

altering Earth's surface, atmosphere, oceans, etc. having long-

lasting and potentially irreversible impact on its systems,

environment, processes and biodiversity, and we have managed to

do that in the sliver of time that we have been on this earth.

State of Rajasthan, the desert of India, is a region of rolling sand

dunes, lofty hills, freezing cold and scorching heat. In the past few

decades, due to deforestation, land degradation, urbanization,

industrial activities, commercialization of forests, rainfalls have

only become scantier, the temperature has risen to 50 degrees

centigrade, water tables have depleted, and the wild lives have

been endangered. Many areas in Rajasthan have been declared as

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dark zones qua the decreasing ground water and in areas where

the ground water is available, its deeper than 500 meters,

containing arsenic, causing serious health problems and affecting

biodiversity.

11. We often forget that "v'kD;a izd`rs% _rs thoue~A" - There is no life without nature. There is no Planet B and in the words of

Mahatma Gandhi, we have borrowed this planet and natural

resources from our future generations lest inherited it. The nature

despite of our interventions will still find a way to live and survive

but it will be us who will have to face the catastrophic effects of it.

12. In the light of the Apex Court judgments rendered in M.C.

Mehta Vs. Kamal Nath & Ors.: (1997) 1 SCC 388; T.N.

Godavarman Thirumulkpad Vs. Union of India & Ors.:

(1997) 2 SCC 267 as well as T.N. Godavarman Thirumulkpad

Vs. Union of India & Ors. :(2014) 6 SCC 150, the Doctrine of

Public Trust was enunciated in terms of Articles 21 and 32 of the

Constitution of India qua the ecology, natural resources. The

Doctrine of Public Trust was founded upon the idea that certain

common properties such as reserves, forest areas, wildlife held in

the Government Trusteeship, for the free and unimpeded use of

general public, should be taken care of. The State is the trustee of

all natural resources which are by nature meant for public use and

enjoyment. The State should be conscious enough to maintain its

forests, preserve their resources and protect the Wild Life which

are declared juristic persons and living entity and entitled to

Article 21 of the Constitution of India as per various

pronouncements of Hon'ble Apex Court.

(8 of 13) [CW-546/2016]

13. Once there is a breach of a public trust and the notifications

of the Government of India qua environment and forest are not

adhered to and necessary compliances are not made, it becomes

duty of this Court to act as a custodian and to take appropriate

measures and also the duty of Government of the State and the

Executives concerned that the said job be carried out to preserve

the natural resources in their pristine purity so as to enforce the

Doctrine of Public Trust.

14. On consideration of the aforesaid facts, it appears that there

is slackness and mala-fide approach in carrying out the duties in

good faith on the part of the respondents. Industrial areas and

activities are actuated on the forest land and permission is

granted by the State and its Instrumentalities, activities contrary

to the guidelines framed by the Apex Court are carried out in the

sanctuaries, reserve forest and areas in and around them and the

Collector, Chief Conservator of Forest and related officers are

silent. It is only on activation of the Court that they issue

directions. This Court is of the opinion that on the next date,

appropriate consideration of the facts need to be analyzed and

appropriate orders qua the same need to be passed.

15. Under the Public Trust Doctrine, this Court deems it

appropriate to direct Shri Shikhar Agarwal, the Principal Secretary,

Forest & Environment as well as Shri Anand Kumar, Principal

Secretary, Revenue for the State of Rajasthan, who are present in

Court in person, to explain the delay in carrying out the duties of

recording of forest land in the revenue records, to define the

boundaries, to mark physical boundary line.

(9 of 13) [CW-546/2016]

16. Without prejudice to the action to be taken against the said

instrumentalities for the said negligence, malafides and slackness,

on assurance of Shri Shikhar Agarwal, the Principal Secretary,

Forest & Environment as well as Shri Anand Kumar, Principal

Secretary, Revenue for the State of Rajasthan, we are inclined to

not pass any orders as on date, and in the light of the assurance

given by both of them, that the necessary entries/corrections will

be made in the revenue records qua the various forest lands,

sanctuaries and reserves in a time bound manner. The assurance

on the part of the aforesaid officers is given that by the next date

of hearing i.e. 27/07/2022, the revenue records will be updated in

accordance with the provisions of the notifications issued under

the respective Acts like the Indian Forest Act, 1927 etc. Failing in

the aforesaid will be deemed to be acting not in bona-fide manner

and appropriate proceedings will be initiated against the erring

officers.

17. Shri Suresh Ola, District Collector, Sawaimadhopur, present

in person in Court, has also assured that qua the entries in the

revenue records, against flouting the terms and guidelines notified

on 15/10/2012 and with reference to the judgment rendered by

the Apex Court in Ajay Dubey (supra) and in terms of

'Guidelines Tourism in and around Tiger Reserve', appropriate

directions and orders will be passed in DB Civil Writ Petition

No.12279/2018 (Babu Lal Jajoo Vs. Member Secretary, National

Tiger Conservation Authority) & DB Civil Writ Petition

No.13703/2020 (Badri Lal Meena Vs. State of Raj.).

                             (10 of 13)                                    [CW-546/2016]


18.   Shri    Shikhar     Agarwal,         Principal       Secretary,      Forest    &

Environment has also submitted that the Tiger Conservation Plan

for 2022-23 to 2033-34 as per the provisions of Section 38V of

the Act of 1972 is under preparation and will be finalized and

submitted before the National Tiger Conservation Authority

(NTCA) prior to August, 2022. Such plan will be prepared in a

most efficient, transparent and careful manner so that the purpose

and object of the same is fulfilled and is not an eye-wash.

19. Shri RD Rastogi, learned Additional Solicitor General for the

Union of India has assured this Court that upon submission of the

said plan (TCP), the same will be considered and if found

appropriate, approval will be granted in accordance with law on

defined terms and conditions.

20. The Principal Chief Conservator of Forest (HOFF) and also the

Chief Wild Life Warden, present in Court, taking cognizance to the

news paper reports and for indiscipline in Zypsy Safari, non

recording of entry in the different sanctuary and forest reserves

have assured that appropriate orders and directions will be issued

qua the same. They have also appraised the Court that in the light

of indiscipline in Ranthambore Sanctuary and for other forests and

sanctuaries certain orders have already been passed on

19.05.2022.

21. This Court, in facts and circumstances, appoints Shri

Rajendra Prasad, Senior Advocate and Shri Sunil Samdaria,

Advocate to assist the Court as Amicus Curiae and by the next

date submit compilation of the related pronouncements of the

Apex Court as well as the jurisdictional High Courts on the subject,

(11 of 13) [CW-546/2016]

apprise the Court about the matters listed, go through the

revenue records, the concerned notifications issued under the

respect Act, guidelines framed by the Apex Court and assist the

Court in passing appropriate orders. In this regard, if they

consider and need support of any of the respondents, the same

will be duly provided in coordination with the office of the

Registrar (Judicial) as well as the Secretary, Rajasthan State Legal

Services Authority, Jaipur. We expect the Registrar (Judicial) as

well as the Secretary, Rajasthan State Legal Services Authority,

Jaipur to provide full assistance and cooperation to the respective

Amicus Curiae whenever required.

22. By the next date, it is expected from the Amicus Curiae to

submit their response and assistance to the Court in all the

connected matters relating to illegal mining, violation of guidelines

vis-a-vis wild life, entry of the forest land in the revenue records,

illegal encroachments and qua the negligence of the respondents.

23. In addition to above, it is also noteworthy to mention that

Shri Abhishek Sharma, who was already appointed as Amicus

Curiae in one of the writ petitions will continue to assist the Court

in all the connected matters.

24. It is also expected from the Principal Conservator of Forest

and Chief Wild Life Warden to act in accordance with Section 28 of

the Act of 1972, the guidelines framed by the Apex Court in

relation to Wild Life and tourism activities in the surrounding areas

and pass appropriate orders a well as to consider the fact that

continuation of 'half day safari', 'full day safari' and permission of

safari visit in the buffer zone in the prohibited time (for instance

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'night safari') is in accordance with the guidelines or not and to

discontinue the same if it is not in accordance with the guidelines

framed. Otherwise, for the said failure, appropriate action will be

initiated on the next date of hearing.

25. In this background, we direct the Chief Secretary,

Government of Rajasthan to consider the same, evaluate

personally and ensure necessary compliance is made of statutory

provisions, guidelines, directions of this court expediently to avoid

adverse orders qua the concerned officer's, failing which,

necessary explanation shall be called upon by the Court as to any

violation.

26. In this background, this Court deems it appropriate to expect

from the above authorities, who are present in Court, to carry out

the specified orders qua the entry of Forests, Wild Life

Sanctuaries, Forest Reserves, Tiger Reserves, etc., as notified, in

the revenue records so that no encroachments take place and to

preserve them.

27. In the interest of Wild Life, TCP should be submitted with the

appropriate competent authority. Appropriate directions be issued

by the District Collectors of Sawaimadhopur, Alwar, Jaipur in the

light of notification dated 15.10.2012 wherein 'Guidelines for

Tourism in and around Forest Reserves' are specified. Appropriate

exercises be carried out before the next date of hearing i.e.

27.07.2022.

28. The issue pertaining to illegal mining shall also be dealt with

by this court on the next date. Qua the same

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reply/affidavit/document be placed on record by respective

parties.

29. List these matters on 27.07.2022. Tag along with DB Civil

Writ Petition No.3840/2022 filed qua the illegal mining in forest

area as prayed by Mr. Ashwani Chobisa, Adv.

30. Names of Mr. Rajendra Prasad, Sr. Adv., Mr. Sunil Samdaria,

Adv. and Mr. Abhishek Sharma, Adv. be shown in the case list as

Amicus Curiae.

                                   (SAMEER JAIN),J                                                   (PRAKASH GUPTA),J




                                   Raghu/









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