Judgment:
ORDER
1. These two writ petitions are disposed of by a common judgment as the issue involved is common in both the writ petitions.
2. WP No. 34387 of 1998 is filed by Nature Park Walkers Association, a Society registered under the Societies RegistrationAct for a writ or a direction in the nature of a writ of certiorari calling for the records in proceedings No.C3/1928/97, dated 20-11-1998 on the file of the District Collector, Hyderabad district and to quash the same.
3. WP No.35072 of 1998 is filed to quash G.O. Ms. No. 187, Environment, Forests, Science and Technology (For.Ill) Department, dated 3-12-1998 as violative of Article 14 and 21 of the Constitution of India.
4. The facts, in brief, are as follows :
Ac.90-00 of land and Ac.400.00 of land belonging to the erstwhile Nizam was taken over by the Government under the Urban Land (Ceiling & Regulation) Act, 1976 (for short '1976 Act'). Under G.O. Ms. No.300 of 1990 Ac.95-00 was declared as natural park. The object of declaring it as natural park was to develop it as a green park. On 25-10-1991 under G.O. Ms. No.957, the excess vacant land was allotted to Forest Department to provide lung space. Aggrieved by the action of the respondents, the Nizam filed WP No.4513 of 1991. The said writ petition was dismissed on 21-1-1992 Govt. of A.P. v. H.E.H. The Nizam VIII of Hyderabad, : AIR1993AP76 . Special Leave petition filed against the said judgment was also dismissed by the Supreme Court. The petitioner-Association was using the park both in the morning and in the evening during restricted hours. The land was taken over under 1976 Act and Ac.23-00 was left for the personal use of Nizam. In the said park, there is a mosque and five times prayers are offered. In 1994 Forest Department proposed to close down the park for the public and gates were actually closed. Therefore the Association, the members of which were obtained passes valid upto 31-3-1999, filed WP No.775 of 1994. Thereafter a notification was issued under Section 35(1) of the Wild Life (Protection) Act, 1972 declaring it as wildlife national park on 23rd September, 1994. The petitioner's Association challenged the said notification by way of WP No. 8609 of 1994. Both the writ petitions, namely, 775/94 & 8609/94 were heard by a learned single Judge and disposed them of on 23rd September, 1997 Nature Park Walkers Assn., v. State of A.P., : 1998(3)ALD111 , with certain directions. Thereafter, on 8-8-1997 Wild Life Advisory Board was constituted. On 8-12-1997 Board advised the Government to declare the area as conservation area. On the basis of the advice, the Government issued the impugned notification in G.O. Ms. No.187, F,nvironment, Forests, Science and Technology (For. III) Department, dated 3-12-1998 under Section 35 of the Wild Life (Protection) Act, 1972. The relevant portion of the G.O., for the purposes of disposing of these writ petitions reads as follows :
'1. The right of way to enclosures as shown in the map kept in the office of Prl. Chief Conservator of Forests by the occupants or persons employed by the occupant of the enclosure land and dwellings is permitted subject to obtaining photo identity card and written permission from Chief Wild Life Warden or any other officer authorised by him.
2. No other persons, organizations, institutions have any other rights or concessions in the National Park.
3. For future requirement of road widening in the area as marked on the map and mentioned in the Schedule may be utilized by the user agency after construction of boundary wall before demolishing the existing boundary wall'.
The petitioner-Association is aggrieved by the clause No.(2) as by virtue of the said clause, the petitioner-Association is prohibited from entering the park in Spite of having passes upto 31-3-1999.
5. The main argument of the learnedCounsel for the petitioner is that the petitioner-Association along with others who are not members of the Association were using the park for their walk in the morning and evening. By virtue of the notification, they are prohibited from using the park. Under Section 23(4) of 1976 Act, all vacant lands acquired by the State Government under this Act shall be disposed of to subserve the common good on such terms and conditions as the State Government may deem fit to impose. Therefore the land now acquired under 1976 Act should be put to common good of the public and prohibition imposed prohibiting the public from entering the park is in violation of Section 23(4). The area acquired under 1976 Act has been included in the master plan. When once it is included in the master plan, it cannot be declared as National Park under Section 35 of the Wild Life (Protection) Act. Counsel also submitted relying on Bhim Singh v. Union of India, : AIR1981SC234 , Bangalore Medical Trust v. B.S. Muddappa, : [1991]3SCR102 , M.C. Mehta v. Union of India, : (1996)4SCC351 , T, Damodhar Rao v. S.O. Municipal Corporation, Hyderabad, : AIR1987AP171 , Dr. G.N. Khajuria v. Delhi Development Authority, 1995 (5) SCC 762 that 'the disposal of excess vacant lands must therefore be made strictly in accordance with the mandate of sub-section (4) of Section 23, subject to this, that in a given case such land may be allotted to any person, for any purpose relating to, or in connection with, any 'industry' or for the other purposes mentioned in sub-section (1), provided that by such allotment, common good will be subserved. The governing test of disposal of excess land being social good, any disposal in any particular case or cases which does not subserve that purpose will be liable to be struck down as being contrary to the scheme and intendment of the Act. .....The touchstone is public purpose,community good and like criteria.....butif the particular act of allotment is mala fide or beyond the statutory and constitutional parameters such exercise will be a casualty in Court and will be struck down'. Learned Counsel contended that in Bangalore Medical Trust v. B.S. Muddappa (supra) conversion of a public park into a private nursing home was struck down by the Supreme Court.
6. In view of the above, learned Counsel contended that the notification issued under Section 35 of the Wild Life (Protection) Act is liable to be declared as void and violation of Articles 14 and 21 of the Constitution of India.
7. While the learned Counsel for the respondents contended that under Section 35 of the Wild Life (Protection) Act the State Government is competent to declare an area whether within a sanctuary or not by reason of its ecological, faunal, floral, geomorphological or zoological association or importance as the National Park for the purpose of protecting, propagating or developing wild life therein or its environment. Where any area is entitled to be declared as National Park, the provisions of Sections 27, 28, 30 to 32 shall apply as far as may be in relation to a National Park as they apply in relation to a sanctuary. On receipt of report from the Collector, the matter was placed before the Wild Life Advisory Board constituted under Section 6 of the Wild Life (Protection) Act through G.O. Ms. No.90, Environment, Forests, Science and Technology Department, dated 8-8-1997 and the Wild Life Advisory Board unanimously recommended for declaring the KBR National Park as conservation area under Section 35 of the Wild Life (Protection) Act, 1972. The Government after going through the entire record including the enquiry report submitted by the Collector, issued final notification under sub-section (4) of Section 35 of the Wild Life (Protection) Act, 1972. The object of declaring it as National Park is to preserve the ecological richness of a given area intotality and to reduce the biotic interference to the minimum. Since the declaration made under Section 35(4) of the Wild Life (Protection) Act is subject to Sections 27 to 32, it is open to the respondents to make regulations regulating the entry under Section 28 of the Act. Under Section 28 of the Chief Wild Life Warden is competent to impose restrictions restricting the entry of public in the conservation zone when once it is declared as such under Section 35 of the Act. Hence, the petitioner-Association cannot claim any right of use in the said area. Counsel also contended that the Collector on enquiry found that there arc several endangered species found in the KBR National Park such as 'The Danaid Egg Fly, a butterfly listed in Schedule 1 of the Wild Life (Protection) Act Schedule 1 contains species which are highly endangered or particularly valuable and which enjoy the highest protection under the provisions of this Act. This butterfly is known to use the Abntilon Sp. Plant as its larval food plant. This is one of the many shrubs that have been cleared to make additional pathways for the walkers. Without this plant, the butterfly will not survive, and without the butterfly, many other plants which rely on it for pollination will also become extinct in the area over time. The Danaid Egg Fly. listed in Schedule f deserves full protection which cannot be possible unless the area is notified and managed as a National Park under the provisions of the Act. Therefore, keeping in view the object of protecting Danaid Egg Fly, which is declared as a wild life, it is necessary to prohibit the entry of public in the conservation zone.
8. The question therefore is whether the Notification suffers from any infirmity warranting interference under Article 226 of the Constitution of India.
9. The Notification is issued under Section 35 of the Wild Life (Protection)Act (Act 53 of 1972). Section 35 reads as follows :
'Section 35. Declaration of National Parks : (1) Whenever it appears to the State Government that an area, whether within a sanctuary or not, is, by reason of its ecological, faunal, floral, geomorpho logical or zoological association or importance, needed to be constituted as a National Park for the purpose of protecting, propagating or developing wild life therein or its environment, it may, by notification, declare its intention to constitute such area as a National Park.
(2) The notification referred to in subsection (1) shall define the limits of the are which is intended to be declared as a National Park.
(3) where any area is in tended to be declared as a National Park, the provisions ofSections 19 to 26 (both inclusive) shall, as far as may be, apply to the investigation and determination of claims, and extinguishment of rights, in relation to any land in such area as they apply to the said matters in relation to any land in a sanctuary.
(4) When the following events have occurred, namely :
(a) The period for preferring claims has elapsed, and all claims, if any, made in relation to any land in an area intended to be declared as a National Park, have been disposed of by the State Government, and
(b) all rights in respect of lands proposed to be included in the National Park have become vested in the State Government. The Stale Government shall publish a notification specifying the limits of the area which shall be comprised within the National Park and declare that the said are shall be a National Park on and from such date as may be specified in the notification.
(5) No alteration of the boundaries of a National Park shall be made except on a resolution passed by the Legislature of the Slate.
(6) No person shall destroy, exploit or remove any wild life from a National Park or destroy or damage the habitat of any wild animal or deprive any wild animal of its habitat within such National Park except under an 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 that such destruction, exploitation or removal of wild life from the National Park is necessary for the improvement and better management of wild life therein, authorises the issue of such permit.
(7) No grazing of any cattle shall be permitted in a National Park and no cattle shall be allowed to enter therein except where such cattle is used as a vehicle by a person authorised to enter such National Park.
(8) The provisions of Sections 27 and 28, Sections 30 to 32 (both inclusive), and clauses (a), (b) and (c) of Section 33 and Section 34 shall, as may be, apply in relation to a National Park as they apply in relation to a sanctuary.'
10. From a reading of Section 35, it is clear that the State Government is empowered to declare any area by reason of its ecological, faunal, floral importance as a National Park for the purpose of protecting, propagating or developing wild life therein or its environment by a notification. In exercise of the said power, the impugned notification is issued. The Section speaks of two objects, one is to protect, propagate or develop the wild life, (2) to protect, propagate or develop environment. In order to achieve this object, the notification is issued. Under sub-section (8) of Section 35 when once a declaration is made, the provisions ofSection 27 and 28 will apply in relation to a National Park as they apply in relation to a sanctuary. Section 28 of the Wild Life (Protection) Act, 1972 empowers the Chief Wild Life Warden to grant permits for certain purposes. The relevant section reads as follows :
'28. Grant of pet-mil :- (1) The Chief Wild Life Warden may, on application grant to any person a permit to enter or reside in a sanctuary for all or any of the following purposes, namely -
(a) investigation or study of wild life and purposes ancillary or incidental thereto;
(b) photograph;
(c) scientific research;
(d) tourism;
(e) transaction of lawful business with any person residing in the sanctuary.
(2) A permit to enter or reside in a sanctuary shall be issued subject to such conditions and on payment of such fee as may be prescribed.'
Under Section 28(2) the Chief Wild Life Warden is authorised to issue permits to enter the conservation zone subject to such conditions and on payment of such fee as may be prescribed. From a reading of Section 35 the declaration declaring a particular area as a National Park is to protect, propagate or develop wild life or environment. In other words Section 35 has twin purposes. One is protection of wild life and second is protection of environment. From a reading of the notification, it does not say that it is issued either for protecting the wild life existing in the park or for protection of the environment. At any rate since the power is there, the declaration may be either for protection of environment or for protection of wild life. Therefore, we proceed on the assumption that the declaration under Section 35 is not only for protection of wildlife but also for the protection of environment.
11. If once the notification is issued under Section 35 declaring it as a National Park under sub-section (8) of Section 35, provisions of Section 28 are applicable as they are applicable to a sanctuary. Under Section 28(2), which I have already referred to in the earlier paragraph, the Chief Wild Life Warden is conferred with the power to permit entry into the area declared as National Park subject to such conditions and on payment of such fee as may be prescribed. In other words, when a declaration is made under Section 35 declaring a particular area as National Park, the authority is competent to restrict entry subject to certain conditions. However, no provision is brought to my notice prohibiting the entry into the Park. Therefore, the clause (2) mentioned in the notification under the heading 'Rights & Concessions' stating that no other persons, organisations, institutions have any other right or concessions in the National Park is inconsistent with Section 28(2) of the Wild Life (Protection) Act. Therefore, clause (2) under the heading 'Rights & Concessions' mentioned in the notification is without authority of law.
12. Further under Section 23(4) of 1976 Act, the vacant land which vested in the Government shall be disposed of to subserve the common good. If the respondents are permitted to prohibit entry of public into the park, it would be inconsistent with Section 23(4) of 1976 Act.
13. It is pointed out that the vesting of vacant land in the Government under Section 23(4) of 1976 Act does not take away the power of the Government to declare a particular area as a National Park to protect the environment or the wild life existing in that particular area. In my view the provisions can simultaneously operate in the same area. The vesting of vacant land enables the Government to declare itas a National Park in exercise of power under Section 35 of the Wild Life (Protection) Act, 1972. However, the declaration of the park as a National Park is only to subserve the common good provided under Section 23(4) of the Act of 1976. Consequently though the Government has the power to declare it as a National Park under Section 35 for protecting the environment or wild life, such declaration should only to subserve the common good and it should not be against the interest of the public.
14. It is now well settled that the governing test of disposal of excess land being social good, any disposal in any particular case or cases which does not subserve that purpose will be liable to be struck down as being contrary to the scheme and intendment of the Act. It is also settled that common good being the writing on the wall, any disposal which does not serve that purpose will be outside the scope of the Act and therefore lacking in competence in diverse senses. Shim Singh 's case (supra). Further, it is now well settled that preserving open spaces and reserving public parks and playgrounds is with a view to protecting the residents from ill-effects of urbanisation and for the benefit of the public at large for recreation, enjoyment, ventilation and fresh air Bangalore Medical Trust case (supra). It is also well settled that the most vital community need is providing lung space by conserving the environment and reversal of the environmental degradation. Providing fresh air is also part of the community need which can be made with only by providing green belts and open spaces. Therefore, it is incumbent upon the respondents to provide lung space for the public. Meeting the needs of the public to protect their health by breathing fresh air is the responsibility of the Government as it is a part of Article 21 of the Constitution of India under which right to life is protected.Therefore, any provision prohibiting the general public from entering the green park in my view violates Article 21 of the Constitution of India. Therefore, prohibition incorporated in the notification prohibiting the public from entering the green park is in violation of Article 21 of the Constitution of India.
15. The entry of public in the green park does not in any way destroy the wild life or the environment that is in existence in the park, provided the entry is permitted subject to restrictions. In fact in Kaziranga Park in Assam where wild life exists, public are allowed to go round the park subject to certain conditions and restrictions and there is no prohibition prohibiting the public from entering the park. Similarly public are allowed in Nehru Zoological Park, Hyderabad, where wild animals are reared. In Dehradun public are allowed to visit National Corbett Park where wild life is protected. There are various parks declared as National Parks for the purpose of protecting the wild life and public are still allowed to enter subject to certain conditions and reasonable restrictions. In view of the above, the respondents are directed to finalise the guidelines before 31-3-1999 and issue permits subject to the conditions that they may prescribe under Section 28(2) of the Wild Life (Protection) Act. The members of the petitioner-Association are eligible for the grant of permits subject to the conditions that the respondents may impose. Till the guidelines and conditions for entry into the National Park are finalised/prescribed under Section 28(2) of the Wild Life (Protection) Act, the existing practice of permitting the public to enter the park shall continue.
16. In the result, the writ petitions are disposed of accordingly. No order as to costs.