Court No. - 1
Reserved on 05.11.2019 Delivered on 19.12.2019
Case :- WRIT - C No. - 8340 of 2012 Petitioner :- Hindustan Institute Of Technology And Management And Another Respondent :- State Of U.P. Thru Secy. And Others Counsel for Petitioner :- Sujeet Kumar,Shashi Nandan Counsel for Respondent :- C.S.C.,Dr. Hari Nath Tripathi,M.C. Tripathi,M.S. Pipersenia
Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.
(Delivered by Ajit Kumar, J.)
1. Heard Shri Shashi Nandan, learned Senior Advocate assisted by Shri Sujeet Kumar for petitioners, Shri M.C. Chaturvedi, learned Additional Advocate General for State and Dr. Hari Nath Tripathi, learned counsel for the respondent no. 5.
2. By means of this petition under Article 226 of the Constitution, the petitioner has assailed the impugned action taken by Deputy Conservator of Forest, National Chambal Sanctuary Project, U.P., Agra under his order dated 30.12.2011.
3. The argument raised by the petitioner is three fold:
(a) the order has been passed in gross violation of principles of natural justice as no show cause notice was ever issued to the petitioner in respect of the proposed action of imposing damages;
(b) the authority passing the order does not enjoy with any such power vested under any law for the time being enforced; and
(c) the amount of damages imposed is too excessive without there being any statistical basis for the same and assessment for loss based on any cogent and convincing material, inasmuch as, nothing has been so discussed in the order to sustain it. Another leg of the argument in this regard is that the order does not discuss any material and as such also is not sustainable.
4. Briefly stated facts of the case are that the petitioners before this Court is a Society as well as Educational Institution running courses in Technical Education and Management. The Society namely the petitioner no. 2 established the Institution in the area at Agra-Mathura Road and that too in the close vicinity of the National Chambal Sanctuary Project undertaken by the State Government. The Institution is recognized one and affiliated to Gautam Budh Technical University of U.P. now known as Abdul Kalam Azad Technical University, U.P. It so happened that due to the affluent flowing out of the premises of the college that borders the Sanctuary resulted in serious threat to environmental damage in the area and consequently endangered to the flora and fauna (wild life as well) in the sanctuary. It appears that repeatedly the Regional Forest Officer issued notices to the petitioner right from 01.11.2003 and onwards regarding threat to the environment resulting on account of affluent flowing in the sanctuary area as well as coming up of a huge multi storied building of the Institution.
5. These notices have been brought on record by means of counter affidavit and the last one in the series being on 18.08.2009 prior to passing of the order impugned. Since last notice is of 18.08.2009 and it is thereafter, the order has come to be passed on 30.12.2011, whereunder damages of Rs. 10 crores have been imposed upon the petitioner and a direction has been issued to recover the said amount.
6. It is also worth noticing at this stage that on 10.02.2012 a notice was issued to the petitioner to ensure compliance of the provisions of the Water (Control and Removal of Pollution) Act, 1974 and the Air (Control and Removal of Pollution) Act, 1981 and also the Environmental Protection Act, 1986 within 15 days. So virtually it stands admitted in the counter affidavit that no notice as such was ever issued to the petitioner of the proposed action as has come to be ultimately taken in the order impugned dated 30.12.2011.
7. In so far as the notice dated 10.01.2012 is concerned, the same does not give any reference to the order dated 30.12.2011 and therefore, it cannot be presumed by any stretch of imagination to be a notice to hear the petitioner on the issue of imposition of damages. However, under the notice dated 10.01.2012, that has been brought on record as Annexure No. 10 to the writ petition, is in respect of the decision already taken on 30.12.2011, asking the petitioner to deposit the same and it is this notice which is accompanied by details running in several pages which according to the respondents has led to the calculation of the damages that the petitioner has been asked to pay. So, the notice cum order dated 10.02.2012 is nothing but consequential to the order dated 30.12.2011 and the 30.12.2011 order and the recitals made thereunder are not indicative of any such prior notice of the action undertaken. In para 15 of the writ petition it has been clearly stated that though the petitioners were issued from time to time several notices but they were all relating to certain constructions including construction of multi storey structure and the discharge of affluent into the sanctuary area but at no point of time the petitioner was invited to meet the charge of the magnitude of loss and its monetary calculation. Para 15 of the writ petition is reproduced hereunder:
“15. That thereafter, without issuing any show cause notice, or without giving any opportunity to the petitioner of being heard, by the impugned order dated 31.12.2011, the petitioner has been asked to pay compensation of Rs. 6 crores for causing environmental damage. There is no principle disclosed which forms the foundation for the calculation of damage. The order dated 31.12.2011 has been passed without jurisdiction by the respondent no. 3 who is having no authority to issue such an order.”
8. Though in reply to the contents of paragraph no. 15 of the writ petition, it has been averred in para 18 of the counter affidavit that the contents of paragraph are not admitted but it is no where mentioned as to what exactly was notice ever issued and served upon the petitioner of the proposed action of imposing penalty in the form of damages to the tune of Rs. 10 crores under the order impugned. The contents of paragraph no. 18 of the counter affidavit is reproduced hereunder:
“18. That the contents of paragraph no. 15 of the writ petition are not admitted. It is stated that to hear the petitioner several notices were issued as mentioned in the aforesaid Para No. 9 & 10. But the petitioner did not stop the activities creating pollution that constitutes degradation of habitat of Avifauna & Aquatic animals & plants. To mitigate the habitat degration, Deputy Conservator of Fores, National Chambal Sanctuary Project, U.P., Agra vide his letter no. 1978/23-1 dated 30.12.2011 has raised a demand of Rs. 400 Lakh to be used in the interventions needed to restore the habitat in the PA. This demanded amount will beutilized in restoration of habitat destructed due to multifarious non-ecofriendly activities within the limit of sanctuary by the institute, which constitutes habitat degradation of wild animal. This cannot be treated as compensation for compounding any offence. If habitat is not restored by requisite interventions then there is inevitable threat of irreparable degradation to the habitat & to the environment as a whole.”
9. Interestingly, in the swearing clause of the affidavit, this paragraph has been sworn on the basis of records and as we have already discussed in this order earlier that there was no such notice ever issued and since no notice has been appended and referred to in paragraph no. 18 which has been sworn on the basis of record, it turns out to be a false one and denial is only an eye wash. So the argument of learned counsel for the petitioner that the order has been passed in gross violation of the principles of natural justice as no show cause notice was ever issued to the petitioner prior to passing of the order dated 30.12.2011 of the proposed action as has been taken under the order, holds merit.
10. Now coming to the second argument advanced by learned counsel for the petitioner, we need to refer the relevant provisions of the Act that authorize the authority to take an appropriate action in the matter in violation of those laws. There are four laws i.e. Water (Control and Removal of Pollution) Act, 1974, Water and Air (Control and Removal of Pollution) Act, 1981, Wild Life (Protection) Act, 1972 and also the Environmental Protection Act, 1986. Since it is a matter relating to the National Chambal Sanctuary that houses rare species of birds and animals, it is necessary to look into the protection laws in their widest possible spectrum. The Wild Life (Protection) Act, 1972 (hereinafter to be referred as 'Act, 1972') was enacted to stop rapind decline of wild animals and birds in the area as the birds and animals in India were considered to be of the richest of the breeds and most varied in the world. Some of the rare species since had already instinct in the country, legislature in its wisdom thought it fit to immediately legislate laws to protect the wild life. The sanctuary in the national park projects accordingly were undertaken to be improved and it is in this background that the Animal Protection Act, 1912 came to be repealed and taken over by the Wild Life Protection Act, 1972 with its application in a wide range of fauna in the country. Section 3 & 4 of the Act provides for appointment of various authorities and Section 5 of the Act, 1972 provides for further application of power by the Director with the approval of the Central Government. Section 5(A) provides for constitution of National Board for wildlife with the Prime Minister as Chairperson and 22 other members to the Board. Section 5(B) provides for 12 member Standing Committee to be constituted of the National Board. Section 5(C) provides for functions of the National Board like framing of policies to advise the Central Government and State Governments for taking means and projects for promoting wild life conservation and arresting poaching etc. that lead to destruction and extinction of species, making recommendations for setting up the management of National Parks and Sanctuaries and other protected areas carrying out various projects and activities of wild life for its habitat and its progress in the field of wild life projects and publishing periodical reports of status of the wild life in the country. Then section 6 provides for constitution of the State Board with the Chief Minister as Chairman and 17 other members. Section 7 lays down procedure to be followed by the Board and Section 8 defines the duty of the Board. The duties that are prescribed like that of selection and Management of the areas to be selected as protected areas formulating policies for protection and conservation of wild life, both flora and fauna, any matter relating to the amendment of any of the schedules bringing coherence between the need of tribal and the dwellers of forest and the wild life and the actions and steps taken for conservation and protection thereof and any other matter connected therewith. Section 9 prohibits hunting, section 10 provides for maintenance of records, Section 11 provides for identifying areas where animal hunting can be sanctioned as per the schedule 1 under certain contingencies. Section 11 is a kind of exception to the general rule of conservation and protection of animals and the contingencies are where the human life is attacked or the peaceful human dwelling is disturbed by the wild animals. Section 12 provides for granting permit for special purposes to any person to conduct education and scientific management in the matter of flora and fauna. Chapter 3 deals with the protection of flora with Section 17-A to 17-H. Section 18 provides for declaration of a sanctuary. Section 18(A) provides for protection of sancturies. Section 18(B) provides for appointment of Collector in relation to such protected area as per the Wild Life (Amendment) Act, 2002. Section 19 provides for the Collector to determine rights of a person whose land falls within the area of sanctuary. Section 20 bars transfer of any right to a 3rd person from the original land holder except by succession, testamentary or inter state. Section 21 authorizes Collector to issue proclamation vide notification of the areas of sanctuary and its limit to determine the rights of an individual falling in such area and the claim has to be adjudicated under Section 22 by the Collector. Section 23 provides administrative power of Collector to have entry upon the land to carry out demarcation and prepare the map either self or through an officer and for that purpose he has been vested with the power of civil court like trial of a civil suit. Section 24 gives power to Collector of acquisition of the land and the area for the purposes of development and protection of sanctuary. Section 25 and 25(A) provides for procedure of acquisition proceedings. Section 26 provides for State Government to delegate the power of the Collector to any other officer and Section 26(A) provides for declaration of area finally as a sanctuary area after the claims are settled or rights have been waived off. Then Section 27 provides for restriction in such sanctuary area by an ordinary person. Section 28 empowers the Chief Wild Life Warden to grant permit to enter and reside in sanctuary for specific purposes enumerated therein. Section 29 provides for restriction in respect of any activity carried out in a sanctuary area in order to preserve and protect flora and fauna and also restrain flowing of water or any affluent which may endanger wild species. Section 30 provides for prohibition to lit fire in a sanctuary area. Section 31 restrains a person from carrying arm in a sanctuary. Section 32 bans use of injurious substances within the sanctuary area. Section 33 provides for control of the sanctuaries. Section 33-A provides for immunization of life stock. Section 34 provides for registration of the persons in the area having possession of arms so that they may be identified and Section 34-A provides for removal of encroachment in the sanctuary area. As section 35 and onward Sections are not relevant for the purpose of controversy in hand, so we are not referring the same. However, Section 51 of the Act, 1972 is relevant for the purposes of imposition of penalties upon a person who contravenes any of the provisions of the Act except Chapter 5-A and Section J. Chapter 5-A of the Act provides for various sections dealing with trade or commerce in trophies, animals articles etc. derived from certain animals as they regulate such matters and Section 38-J prohibits teasing etc. in the zoo area. Thus entire scheme of the Act as has been referred to herein above, is aimed at protecting, preserving and conserving flora and fauna to wit, wild life in the country and for that purpose identifying and declaring an area to be sanctuary to facilitate the project that the government may decide to launch for the protection of wild life. The National and the State Boards are conceived of to carry out the aims and objects of the Act. Chapter 4 vide Section18 authorizes State Government to notify an area as a sanctuary area other than a reserve forest and then after declaring an area to be a protected area as a sanctuary, Section 18-A provides that the notification under Section 27 to 33-A (both inclusive) shall come into effect forthwith. The procedure has been laid down thereafter under various sections for the acquisition of an area by the Collector to be appointed by the State Government in a manner as prescribed for under Section 25, 25-A and then Section 29 to 33 provides for the activities that are prohibited in such area. For the purposes of the case in hand, Section 29 to 33 are relevant and accordingly are reproduced hereunder:
“[29. Destruction, etc., in a sanctuary prohibited without a permit.—No person shall destroy, exploit or remove any wild life including forest produce from a sanctuary or destroy or damage or divert the habitat of any wild animal by any act whatsoever or divert, stop or enhance the flow of water into or outside the sanctuary, except under and in accordance with a permit granted by the Chief Wild Life Warden, and no such permit shall be granted unless the State Government being satisfied in consultation with the Board that such removal of wild life from the sanctuary or the change in the flow of water into or outside the sanctuary is necessary for the improvement and better management of wild life therein, authorises the issue of such permit:
Provided that where the forest produce is removed from a sanctuary the same may be used for meeting the personal bona fide needs of the people living in and around the sanctuary and shall not be used for any commercial purpose.
Explanation.—For the purposes of this section, grazing or movement of livestock permitted under clause (d) of section 33 shall not be deemed to be an act prohibited under this section.]”
30. Causing fire prohibited. – No person shall set fire to a sanctuary, or kindle any fire, or leave any fire burning, in a sanctuary, in such manner as to endanger such sanctuary.
31 Prohibition of entry into sanctuary with weapon. – No person shall enter a sanctuary with any weapon except with the previous permission in writing of the Chief Wildlife Warden or the authorised officer.
32. Ban on use of injurious substances. – No person shall use in a sanctuary, chemicals, explosives or any other substances which may cause injury to, or endanger, any wildlife in such sanctuary.
33. Control of sanctuaries. – The Chief Wildlife Warden shall be the authority who shall control, manage and maintain all sanctuaries and for that purpose, within the limits of any sanctuary,
(a) may construct such roads, bridges, buildings, fences or barrier gates, and carry out such other works as he may consider necessary for the purposes of such sanctuary;
[Provided that no construction of commercial tourist lodges, hotels, zoos and safari parks shall be undertaken inside a sanctuary except with the prior approval of the National Board.]
(b) shall take such steps as will ensure the security of wild animals in the sanctuary and the preservation of the sanctuary and wild animals, therein;
(c) may take such measures, in the interests of wildlife, as he may consider necessary for the improvement of any habitat.
(d) may regulate, control or prohibit, in keeping with the interests of wildlife, the grazing or movement of [livestock].
[33A. Immunisation of livestock. –(1) The Chief Wildlife Warden shall take such measures in such manner as may be prescribed, for immunisation against communicable diseases of the livestock kept in or within five kilometres of a sanctuary.
(2) No person shall take, or cause to be taken or graze, any livestock in a sanctuary without getting it immunised.]”
33B. Advisory Committee.—(1) The State Government shall constitute an Advisory Committee consisting of the Chief Wild Life Warden or his nominee not below the rank of Conservator of Forests as its head and shall include a member of the State Legislature within whose constituency the sanctuary is situated, three representatives of Panchayati Raj Institutions, two representatives of non- governmental organisations and three individuals active in the field of wild life conservation, one representative each from departments dealing with Home and Veterinary matters, Honorary Wild Life Warden, if any, and the officer- in-charge of the sanctuary as Member-Secretary.
(2) The Committee shall render advice on measures to be taken for better conservation and management of the sanctuary including participation of the people living within and around the sanctuary.
(3) The Committee shall regulate its own procedure including quorum.]
11. From the bare reading of the above provisions it is clear that absolute protection has been given to the wild life in a sanctuary area and in that process a person has been restrained from flowing of water into or stopping water flowing out of the sanctuary except in accordance with the permit granted by the Chief Wild Life Warden but even then such permission can be granted after the satisfaction of the State Government in consultation with the Board. The control mechanism, as per Section 33, prescribes for the Chief Wild Life Warden to undertake such activities and measures as may be in the interest of wildlife. Section 33-B authorizes State Government to constitute an Advisory Committee to render advise on measures to be undertaken for the better conservation and management of the sanctuary.
12. In the case in hand there is no dispute that the sanctuary is there known as National Chambal Sanctuary and the petitioners institution borders the sanctuary. The issues have been of the unauthorized construction and flow of water and affluent in the sanctuary area by the Institution that has posed serious threat to the wild life there and now as per impugned order it has caused damage to the sanctuary that needed to rescued.
13. It is urged by the learned Senior Advocate and the Additional Advocate General appearing for the respondent that in view of the power conferred under clause (c) of Section 33 that Chief Wild Life Warden “may take such measures, in the interest of wildlife, as he may consider necessary for the improvement of any habitat and may regulate, control, or prohibit, in keeping with the interest of wildlife, the grazing or movement of (livestock)” is sufficient enough for him to undertake such exercise, as may help him, in evolving suitable scheme to restore damage things by recovering the cost from the wrong doers. From the reading those clauses (c) and (d) along with Section 33-B it is quite clear that the control mechanism adopted by the Chief Wild Life Warden has to be in tune with the aid and advise rendered by the Advisory Committee. Section 34-A of course, provides for removal of encroachment but since the report has come up and as has been brought on record that there is no encroachment as such by the petitioner over and above the sanctuary area, it cannot be said that the said section is in any manner attracted.
14. Learned Senior Advocate has tried to defend the order impugned, whereby, the damages have been imposed in the light of provisions as contained in sub section (c) and (d) of Section 33.
15. In our considered opinion, the argument advanced is quite misplaced. To adopt measures in the interest of wildlife means to go ahead with such restrictive orders as may be necessary and for that purpose the Chief Wild Life Warden has to act in consultation with the Advisory Committee. It is quite doubtful that there was any advise of the Advisory Committee to provide for guidelines to the authority to recover damages for the loss, if any, caused to the sanctuary by an individual. Moreover, when there is a substantive provision for imposing penalty, an authority is not to take an advise or lay down a separate procedure for such penalties. The penalty as has been provided for under sub section 51 is maximum of Rs. 25,000/- and imprisonment which may extend to three years. For convenience and appreciation of the argument, the provisions of Section 51 is quoted hereunder:
51. Penalties. - (1) Any person who 9[contravenes any provisions of this Act [(except Chapter VA and section 38J)] or any rule or order made thereunder or who commits a breach of any of the conditions of any licence or permit granted under this Act, shall be guilty of an offence against this Act, and shall, on conviction, be punishable with imprisonment for a term which may extend to [three years] or with fine which may extend to [twenty five thousand rupees] or with both.
Provided that where the offence committed is in relation to any animal specified in Scheduled I or Part 11 of Sch. 11, or meat of any such animal, animal article, trophy, or uncurled trophy derived from such animal or where offence [relates to hunting in, ox, altering the boundaries of] a sanctuary or a National Park, such offence shall be punishable with imprisonment for a term which shall not be less than [one year] but may extend to six years and also with fine which shall not be less than [five thousand rupees].
[Provided further that in the case of a second or subsequent offence of the nature mentioned in this sub-section, the term or imprisonment may extend to six years ‘ and shall not be less than two years and the amount of fine shall not be less than ten thousand rupees.] [(1A) Any person who contravenes any provisions of Chapter VA, shall be punishable with imprisonment for a7 term which shall not be less then one year but which may extend to seven years and also with fine which shall not be less than five thousand rupees.] [(1B) Any person who contravenes the provisions of Section 38J] shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both.
Provided that in case of second or subsequent offence the term of imprisonment may extend to one year or the fine may extend to five thousand rupees.]
(2) When any person is convicted of an offence against this Act, the Court trying the offence may order that any captive animal, wild animal, animal article, trophy, [uncured trophy, meat, ivory imported into India or an article made from such ivory, any specified plant or part or derivative thereof] in respect of which the offence has been committed, any trap, tool, vehicle, vessel, or weapon used in the commission of the said offence be forfeited to the State Government and that any licence or permit, held by such person under the provisions of this Act, be cancelled.
(3) Such cancellation of licence or permit o r such forfeiture shall be in addition to any other punishment that may be awarded for such offence.
(4) Where any person is convicted of an offence against this Act, the court may direct that the licence, if any, granted to such person under the Arms Act, 1959 (54 of 1959) for possession of any arm with which an offence against this Act has been committed, shall be cancelled, and that such person shall not be eligible for a licence under the Arms Act, 1959, for a period of five years from the date of conviction.
[(5) Nothing contained in section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) or in the Probation of offenders Act, 1958 (20 of 1958) shall apply to a person convicted of an offence with respect to hunting in a sanctuary or a National Park or of an offence against any provision of Chapter VA unless such person is under eighteen years of age.] [51A. Certain conditions to apply while granting bail.— When any person accused of, the commission of any offence relating to Schedule I or Part II of Schedule II or offences relating to hunting inside the boundaries of National Park or wild life sanctuary or altering the boundaries of such parks and sanctuaries, is arrested under the provisions of the Act, then notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) no such person who had been previously convicted of an offence under this Act shall, be released on bail unless—
(a) the Public Prosecutor has been given an opportunity of opposing the release on bail; and
(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.]”
16. A bare reading of the aforesaid provision makes it absolutely clear that any action in contravention of the provisions of the Act, 1972 is liable to be visited with certain penalties which includes either imprisonment or fine or in certain cases with both and is upto the discretion of the authority. It is not disputed by the parties that the authority that has passed the order, is the authority nominated to exercise power under Section 33 of the Act but from where it has got right to impose damages upon the petitioner, a provision vesting any such power upon the authority is not traceable in the entire regime of the Act.
17. Yet another argument is sought to be advanced by learned Senior Advocate that action can be taken under the Prevention of Cruelty to Animals Act, 1960 and the Rules of 1978 framedthereunder because the Rules provide for imposition of fine. We have also carefully examined the Prevention of Cruelty to Animals Act, 1960 (hereinafter to be referred as 'Act, 1960') and the Rules of 1978 framed thereunder (hereinafter to be referred as 'Rules, 1978') to find the justification in the argument advanced by learned Senior Advocate. Looking to the aims and object behind the Act, we find that this Act is aimed at preventing cruelty against the animals whether wild or domestic and for that purpose the Animal Welfare Board is prescribed for under the Act. The cruelty to animals has been defined under Section 11 and then defines offences and confers power upon the State Government to frame rules to carry out the purpose of the Act. The Rules, 1978 provides for the fine to be imposed referable to the Act itself and the fine has been prescribed for under Section 12 of the Act, 1960. For the purposes of the case in hand, sections 11 and 12 of the Act, 1960 are relevant and accordingly are reproduced hereunder:
“11. Treating animals cruelly : (1) If any person--
(a) beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes, or being the owner permits, any animal to be so treated; or
(b) 13(employs in any work or labour or for any purpose any animal which, by reason of its age or any disease) infirmity; wound, sore or other cause, is unfit to be so employed or, being the owner, permits any such unfit animal to be employed; or
(c) wilfully and unreasonably administers any injurious drug or injurious substance to (any animal) or wilfully and unreasonably causes or attempts to cause any such drug or substance to be taken by (any animal;) or
(d) conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering; or
(e) keeps or confines any animal in any cage or other receptacle which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement; or
(f) keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord; or
(g) being the owner, neglects to exercise or cause to be exercised reasonably any dog habitually chained up or kept in close confinement; or
(h) being the owner of (any animal) fails to provide such animal with sufficient food, drink or shelter; or
(i) without reasonable cause, abandons any animal in circumstances which tender it likely that it will suffer pain by reason of starvation, thirst; or
(j) wilfully permits any animal, of which he is the owner, to go at large in any street, while the animal is affected with contagious or infectious disease or, without reasonable excuse permits any diseased or disabled animal, of which he is the owner, to die in any street; or
(k) offers for sale or without reasonable cause, has in his possession any animal which is suffering pain by reasons of mutilation, starvation, thirst, overcrowding or other ill- treatment; or
(l) mutilates any animal or kills any animal (including stray dogs) by using the method of strychnine injections in the heart or in any other unnecessarily cruel manner or;} [(m) solely with a view to providing entertainment-
(i) confines or causes to be confined any animal (including tying of an animal as a bait in a tiger or other sanctuary) so as to make it an object or prey for any other animal; or
(ii) includes any animal to fight or bait any other animal; (or)
(n) organizes, keeps uses or acts in the management or, any place for animal fighting or for the purpose of baiting any animal or permits or offers any place to be so used or receives money for the admission of any other person to any place kept or used for any such purposes; or
(o) promotes or takes part in any shooting match or competition wherein animals are released from captivity for the purpose of such shooting;
he shall be punishable (in the case of a first offence, with fine which shall not be less than ten rupees but which may extend to fifty rupees and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty five rupees but which may extend, to one hundred rupees or with imprisonment for a term which may extend, to three months, or with both.]
2. For the purposes of section (1) an owner shall be deemed to have committed an offence if he has failed to exercise reasonable care and supervision with a view to the prevention of such offence;
Provided that where an owner is convicted permitting cruelty by reason only of having failed to exercise such care and supervision, he shall not be liable to imprisonment without the option of a fine.
3. Nothing in this section shall apply to-
(a) the dehorning of cattle, or the castration or branding or noseroping of any animal in the prescribed manner, or
(b) the destruction of stray dogs in lethal chambers * [by such other methods as may be prescribed] or
(c) the extermination or destruction of any animal under the authority of any law for the time being in force; or
(d) any matter dealt with in Chapter IV; or
(e) the commission or omission of any act in the course of the destruction or the preparation for destruction of any animal as food for mankind unless such destruction or preparation was accompanied by the infliction of unnecessary pain or suffering.
12. Penalty for practicing phooka or doom dev-- If any persons upon any cow or other milch animal the operation called phooka or ** [doom dev or any other operation (including injection of any substance) to improve lactation which is injurious to the health of the animal] or permits such operation being performed upon any such animal in his possession or under his control, he shall be punishable with fine which may extend to one thousand rupees, or with imprisonment for a term which may extend to two years, or with both, and the animal on which the operation was performed shall be forfeited to the Government.”
18. From the bare reading of the aforesaid provisions, it is very much clear that the actions and the act at the end of the petitioner that have been complained of under various notices are not the ones as enumerated under Section 11 and therefore, neither the Act, 1960 is applicable nor the Rules framed thereunder are applicable. However, under this Act also we find that that maximum punishment in terms of imprisonment and fine is 2 years and Rs. 1,000/-. So even from the angle of provisions contained under the Act, 1960, no damages as such could have been imposed as is sought to be imposed under the order impugned. Moreover, we do not find any reference to either of the advise of the Standing Committee on which the respondent has acted upon in imposing the damages nor of Board under the Act, 1972 taking any decision and issuing any advise in such matters so as to justify the order within the four corners of the provisions contained under the Act either of 1972 or the Act of 1960.
19. Learned Senior Advocate has then relied upon the Management Plan prepared for the purpose of National Chambal Sanctuary Project, U.P., Agra to be applicable from 2010 to 2020 and then has argued that in view of the guidelines provided under Chapter V it is onerous duty cast upon the Deputy Conservator of Forest of the sanctuary to ensure that the desired result are achieved and it is in order to ensure the proper Management and conservation of the sanctuary, he has to undertake a protection plan. In order to appreciate the argument of learned counsel for the respondent, we refer to the management plan as contained under Chapter III of it and then the activities under clause 1.1 of the strategy part of the plan. The protection plan under clause 6.4.1 of the guidelines as under:
“6.4.1 Protection Plan This plan covers protection from illegal activities like fishing, hunting, illicit felling, encroachment etc. Protection from fire is dealt in a separate theme plan.
Objective:
The objective of this plan is to protect the flora and fauna in all forms, non-living entities including land, water, soil and all other things found inside the limits of SSBS.
Major threats faced by the area are:
1. Fishing in the Keetham lake
2. Illegal collection of MFPs like grass, fuelwood etc.
3. Encroachment 4 Illicit felling of trees for local needs
5. Grazing
6. Tresspass Problems in achieving the above objective are:
1. Related to manpower: lack of adequate and trained manpower.
2. Related to infrastructure: Vehicle, night-vision equipments, modern gadgets to keep an eye on the entire are from a control room, weapons and ammunition for them.
3. Related to boundary: A boundary wall is needed, particularly in the Eastern and Western side.”
20. From the reading of the aforesaid guidelines, we find that while the officer/ competent authority has been vested with the power to undertake several activities to ensure protection of the wildlife in the sanctuary and for that purpose the fund mobilization is also part but we do not find any such clause that empowers the authority to recover the cost damages from a person acting in violation of the provisions of Act of 1972 or of 1968.
21. In our view, the guidelines are only aimed at management plan of the sanctuary and the Act, 1972 provides for penalty. In case of violations of the laws as contained under the said Act Imposition of damages after its assessment, is a matter of civil law for which the authority has to institute a suit in common law. An authority under the Act has to act within the four corners of the provisions and cannot on its own venture make assessment and then impose the damages without there being any such provision contained under the Act and the Rules framed thereunder. The imposition of penalty at the most could have been done and if the constructions have been carried out in violation of local laws, to wit, municipal laws or the zonal and master plan, the proper course was to apply the authorities designated thereunder for an appropriate action and therefore, in our considered opinion, the imposition of damages under the order impugned and recovery thereof in pursuance thereto are beyond the authority vested in law and accordingly the order impugned dated 30.12.2011 cannot be sustained in law and deserves to be set aside.
22. In so far as the pollution control laws like the Water (Control and Removal of Pollution) Act, 1974 (hereinafter to be referred as 'Act, 1974') and the Air (Control and Removal of Pollution) Act, 1981 (hereinafter to be referred as 'Act, 1981') are concerned, they also provide for constitution of a Board to carryout the purpose of the Act, wide range of powers have been prescribed for carrying out entry and inspection in the premises that are taken to be prima facie places causing air or water pollution, while the Act, 1981 bars the jurisdiction of the civil court, it itself provides a mechanism for cognizance of offences by the Board and conducting proceedings to try the offences as the members of Board are deemed to be public servants within the meaning of Section 21 of Indian Penal Code. The procedure to carry out the proceedings have been prescribed for under the Rules framed by the State Government in exercise of powers under Section 53 of the said Act and the maximum penalty provided under Section 39 is a punishment with imprisonment for a term which may extend up to three months and/ or with a fine which may extend to Rs. 10,000/-. So also, we find under the Act, 1974, the maximum punishment that can be awarded under Section 41 is imprisonment for a period of three months and/ or fine of Rs. 10,000/-. There are further penalties of similar kind provided for in certain other cases under Section 42, 43 & 44 of the Act and then enhanced penalty under provisions contained under Section 45 of the Act. Similar penalty has also been provided under Section 45-A of the Act. So under these two acts also we do not find any provision which may entitle respondent to impose damages as a penalty against the cost that may be required to restore the sanctuary or the places therein which have suffered the damages, as alleged under the order impugned . All the acts are self contained codes and for protection of wild animals and flora in the reserved area or in the sanctuary only Acts provide for penalties for violation of provisions contained thereunder and also to that extent provide penalty as a punishment for a wrongful act to be termed as offences under the respective Acts but none of the Acts provide for any damages as has been directed under the order impugned. Moreover, we find that every such Act lays down a prescribed procedure to be followed by a competent authority and in all the cases there is a constitution of Board and of Standing Committee/ Advisory Committee to aid and advise the authorities created out under the Act. While the powers have been provided to ensure protection of flora and fauna and proper conservation thereof and also modes have been provided for taking deterrent measures, but no where in the entire regime of any of the Acts there is any scheme for imposition of cost or damages to repair the loss caused to the sanctuary or any wild animal area for that matter.
23. In view of the above, the writ petition succeeds and is allowed.
The order dated 30.12.2011 passed by the 3rd respondent (Annexure no. 1 to the writ petition) is hereby quashed. It is however, left open for the authority to proceed in accordance with law under Act, 1972 or any other law that may be enforced and that may permit for penal action against the petitioner, in case of violation of the Act, 1972 or other environmental laws. It is also left open for the authorities to approach the Development Authority or Municipality for that matter against any unlawful construction or development activity, if have been carried out by the petitioner in respect of the institution in question along side the sanctuary area.
Order Date :- 19.12.2019 IrfanUddin (Ajit Kumar,J.) (Ramesh Sinha,J.)