“Every intervention involves some form of environmental and ecological damage. The question is what extent of intervention should be permitted or, conversely, how compelling a case for environmental protection needs to be made out to ensure statutory protection to the area in question.”
The Division Bench of Justice G.S.Patel and Justice Kamal Khata made the above observation while disposing a Public Interest Litigation (PIL) field seeking direction to the Respondents to take immediate steps for the conservation and protection of Panje-Dongri Wetlands comprising of 124 ha. as a unique bird habitat and as a ‘Protected Area’ under the Wildlife (Protection Act), 1972.
The land in question is within the jurisdictional area of City and Industrial Development Corporation of Maharashtra (CIDCO), a special planning authority in whom the land is vested.
Section 18 and Section 36A of the WLP Act read as follows:
“18. Declaration of sanctuary
(1) The State Government may, by notification, declare its intention to constitute any area other than an area comprised within any reserve forest or the territorial waters as a sanctuary if it considers that such area is of adequate ecological, faunal, floral, geomorphological, natural or zoological significance, for the purpose of protecting, propagating or developing wild life or its environment.
(2) The notification referred to in sub-section (1) shall specify, as nearly as possible, the situation and limits of such area.
Explanation: For the purposes of this section it shall sufficient to describe the area by roads, rivers, bridges or other well known or readily intelligible boundaries.
36A. Declaration and management of a conservation reserve
(1) The State Government may, after having consultations with the local communities, declare any area owned by the Government, particularly the areas adjacent to National Parks and sanctuaries and those areas which link one protected area with another, as a conservation reserve for protecting landscapes, seascapes, flora and fauna and their habitat:
PROVIDED THAT where the conservation reserve includes any land owned by the Central Government, its prior concurrence shall be obtained before making such declaration.
(2) The provisions of sub-section (2) of section 18, subsections (2), (3) and (4) of section 27, sections 30, 32 and clauses (b) and (c) of section 33 shall, as far as may be, apply in relation to a conservation reserve as they apply in relation to a sanctuary .
“Maharashtra has its own complex of national parks, sanctuaries, and tiger conservation areas and the Government can surely be no stranger to the requirements or to the satisfaction necessary for such a declaration. But the point is that the satisfaction must be of the Government. We do not see, despite saying all of this, how a Writ Court can possibly compel the Government to decide this in a particular manner. We do not see how we can send a message to the Government that we are satisfied with the material and therefore the Government must now decide depending upon our satisfaction. That would literally put the administrative cart before the judicial horse. We are doing nothing of the kind”, the Bench observed.
The Court permitted the Petitioners time of three weeks to submit an appropriately framed representation to the Joint Secretary of Revenue and Forests Department. The Court clarified that since the matter comes to the authority from the Court it is not an acceptable answer to say that no decision can be taken. Either the representation must be accepted in whole or in part or it must be rejected.