The Karnataka High Court has dismissed a Public Interest Litigation (PIL) seeking directions to the State of Karnataka and Director, Department of Animal Husbandry and Veterinary Sciences, Vishweshwarayya Jal Nigam Limited to not to allot / divert any Amruth Mahal Kaval land (semi grassland) in schedule land in Kadur Taluk, Chikamagalur District.
The PIL filed by a wildlife conservation activist, a coffee planter and a senior journalist respectively, further prayed to take necessary steps for protection of schedule lands from encroachment, conversion, to maintain the integrity of grassland ecosystem and to realign the proposed Tumkur Diversion Canal to avoid schedule lands.
Schedule lands are grasslands which support a wide range of flora and fauna, including many endangered wildlife species such as blackbuck, fox, wolf, etc. A notification dated 30.04.2011 was issued under Section 36A of the Wildlife Protection Act, 1972 by which land measuring 1820.11 acres including land of Sy.Nos.1 and 30 were declared as “Basur Amruth Mahal Kaval Blackbuck Conservation Reserve”. Bilvala Kaval which is situated about 1.5 km from Basur Kaval Conservation Reserve is also a grassland which supports many wildlife species.
The Nigam is an undertaking of the Government of Karnataka. It has been entrusted with execution of the Upper Bhadra Project. The dispute in the petition pertains to construction of Chitradurga Branch canal which is a part of Upper Bhadra Project. The Project aims to draw water from Tunga and Bhadra reservoirs for supply of water to Chikamagalur, Chitradurga, Tumkur and Davanagere Districts of State of Karnataka. The object of construction of Chitradurga Branch Canal is to irrigate 2,25,515 hectares of agricultural land and fill up 367 tanks in four districts viz., Chikamagalur, Chitradurga, Tumkur and Davanagere of State of Karnataka.
The grievance of the petitioners in the PIL is that construction of Chitradurga Branch canal is made on Amrit Kaval (Semi Grassland), which is a forest land and is being made in conservation reserve.
The counsel for the petitioners submitted that the area comprising Sy.No.1 of Kadur Taluk of Chikamagalur District has been notified as Conservation Centre under Section 36A of the Wildlife Protection Act, 1972. It is further submitted that after filing of the petition, the Nigam has filed an application before the Wild Life Board seeking clearance of the project which is pending consideration. It is contended that no permission under Forest Conservation Act, 1980 has been obtained.
It is further contended that proposed canal runs through conservation centre and the Environmental Impact Assessment Clearance (EIAC) obtained by the Nigam does not consider the impact of construction of canal on conservation reserve and the same is in violation of memorandum dated 02.12.2009 issued by Ministry of Environment and Forest, Government of India. It is urged that the Principal Chief Conservator of Forest, Government of Karnataka by a communication dated 23.12.2001 has directed re-alignment of the canal to avoid Conservation Reserve.
It is submitted that the petitioners have not challenged the Environmental Clearance dated 10.07.2017 granted to the Nigam in this petition. It is also urged that matters within the purview of 1972 Act cannot be dealt with by National Green Tribunal (NGT). It is also submitted that the order of NGT dated 27.10.2014 in ‘LEO F SALDHANA VS. UNION OF INDIA AND OTHERS’, does not deal with the schedule land.
On the other hand, the senior counsel for Nigam, while inviting the attention of the High Court to the map, submitted that Chitradurga Branch Canal is 159 km in length, out of which the construction of canal is complete except for a length of 2.15 km. It is also submitted that in view of Memorandum dated 02.12.2009 issued by the Ministry of Environment and Forest, the Environment Impact Assessment Notification has been issued in favour of the Nigam on 10.07.2017. It is also submitted that NGT in LEO F SALDHANA has held that Amrit Kaval (Semi Grassland) is not forest land, therefore, the question of obtaining the permission under Forest Conservation Act does not arise. It is also pointed out that Nigam has filed an application 22.10.2020 before the Wildlife Board, which is pending consideration and the construction work of the canal shall only be undertaken by the Nigam after obtaining the approval.
It is further submitted that the contention that provisions of Memorandum dated 02.12.2009 have been violated is misconceived. It is also submitted that the project of construction of the canal has been conceived in public interest with a view to supply drinking water to four districts of the State of Karnataka and to fill up 367 tanks. It is also urged that challenge to the infrastructure project has to be made within a reasonable time and the challenge to the project in question in the instant case suffers from delay and latches. In support of aforesaid submissions, reliance has been placed on decisions in ‘NARMADA BACHAO ANDOLAN VS. UNION OF INDIA AND OTHERS’, (2000) 10 SCC 664.
The Division Bench of Acting Chief Justice Alok Aradhe and Justice S. Vishwajith Shetty noted that it is trite law that the decision to have an infrastructural project, its nature and manner of execution are part of policy making process and it would not be appropriate for the High Court to question the wisdom behind a policy decision.
However, the Court is under an obligation to ensure that provisions of law are not violated and the fundamental rights guaranteed to the citizens are protected. The utilization of natural resources has to be considered with principles of sustainable development and balancing of equities may entail policy choices.
The Court can interfere with the policy decision only when it suffers from manifest illegality or is shown to be per se arbitrary. The challenge to the policy decision must be made before the execution of the project, observed the Bench.
Further, the Court held that the Government is under an obligation to ensure availability of water to its people. By means of the project in question, the water is sought to be supplied to drought affected districts in the State of Karnataka. In the aforesaid four districts, most of the families are living below the poverty line and are dependent on agriculture. The four districts i.e., Chikamagalur, Chitradurga, Tumkur and Davanagere of State of Karnataka receive a low annual rainfall. The project in question has been undertaken to improve the per capita income and standard of living of the people. More than 90% of the project is complete and the canal has to be constructed only on an area measuring 2.15 kms. in length. The decision to construct a canal does not suffer from manifest arbitrariness so as to call for interference in exercise of powers of judicial review.
Kaval lands are basically the lands meant for grazing by Amrit Mahal breed of cattle owned by the then Maharaja of Mysore. The aforesaid practice was continued by the State Government. The National Green Tribunal by order dated 27.08.2014 passed in case of LEO F SALDHANA v UNION OF INDIA & ORS, while taking into account the report of Animal Husbandry and Veterinary Science and dealing with the nature of Amrit Mahal kaval lands in paras 134 and 174, the relevant extract of which reads as under:
“134. … According to the report of the Animal Husbandry and Veterinary Science, it was in possession of 69,925 acres (27.468.9 ha) of Amrit Mahal Kaval lands in 62 locations in 6 districts, namely, Chigmagalur, Chitradurga, Hassan, Tumkur, Mandya and Davangere. In the year 1982, the kaval lands were reduced to 54,000 acres and in 1996 it further came down to 30,000 acres. The practice of grazing by Amrit Mahal breed of cattle owned by the erstwhile Kingdom was continued by the Government.
174. In view of the above definitions, the lands allotted to respondents/allottee project proponents cannot be defined as forest lands. As stated above, the Amrit Mahal Kaval land are set apart and reserved for grazing by the cattle.”
Thus, from the aforesaid findings recorded by the National Green Tribunal, the High Court held that Amrit Mahal Kaval lands are not the forest lands and therefore, the question of obtaining the permission under the Forest Conservation Act does not arise.
Further the Court observed that the office memorandum dated 02.12.2009 issued by Ministry of Environment and Forests provides that proposal for environmental clearances will not be linked with clearances from forestry and wildlife angle, even if it involves forest land or wildlife habitat as these clearances are independent of each other and would in any case need to be obtained as applicable to such projects before starting any activity at site. The Nigam has been granted the environmental clearance on 10.10.2017.
The construction of the canal on an area measuring 2.15 km in length has not been undertaken. The Nigam, before commencement of the work at the site, has filed an application on 22.10.2020 seeking permission of the Wildlife Board for clearance of the project. On account of an interim order granted by a bench of this Court as well as the pendency of the litigation, it appears that the Board has not taken any decision on the application submitted by the Nigam. The Court therefore directed the Board to take a decision with regard to the permission as sought for by the Nigam expeditiously.
“For the aforementioned reasons, we find that there has been no infraction of any of the either statutory or fundamental rights guaranteed to the public in general. The challenge to the project of construction of canal which has been undertaken in public interest is misconceived. In the result, we do not find any merit in this petition. The same fails and is hereby dismissed,” the order reads.