Holding

The fishing permits, being a settlement of traditional rights granted before the final notification under Section 35(4), do not fall within Section 33 of the Wild Life (Protection) Act and are permissible subject to prescribed conditions.

Summary

The Animal and Environment Legal Defence Fund challenged the Madhya Pradesh government's order granting 305 fishing permits to tribals residing in the Pench National Park area, arguing that such permits would damage the park's biodiversity and contravene the Wild Life (Protection) Act, 1972 and the Indian Forest Act. The Court examined whether the permits fell within the prohibitions of Section 33 of the 1972 Act and whether the tribals' traditional fishing rights could be recognized despite the area being a Reserved Forest. It held that the permits were issued in lieu of traditional rights before a final notification under Section 35(4) was made, and therefore did not fall under Section 33. While acknowledging ecological concerns, the Court directed that the State issue the final notification expeditiously and imposed strict conditions on the permits to mitigate environmental impact. The petition was partly allowed and disposed of with these directions.

Issues considered

Whether the issuance of fishing permits in Pench National Park violates Section 33 of the Wild Life (Protection) Act, 1972.
Whether traditional fishing rights of tribals can be recognized despite the area being a Reserved Forest under the Indian Forest Act.
Whether the State must first issue a final notification under Section 35(4) before granting such permits.
Whether the permits constitute a settlement of rights prior to the final notification and are therefore permissible.
Whether ecological considerations outweigh the tribals' livelihood rights.

Legislation cited

Constitution of Indias. Article 48A, s. Article 51A(g)
Indian Forest Act, 1878s. 26(1)(i), s. 5
Wild Life (Protection) Act, 1972s. 24, s. 33, s. 35(1), s. 35(3), s. 35(4)

Subjects

wildlife protectionnational parktraditional rightstribal fishing rightsenvironmental lawIndian Forest ActWild Life (Protection) Actecological balanceresettlementpublic interest litigation

Judgment

A ANIMAL AND ENVIRONMENT LEGAL DEFENCE FUND
v.
UNION OF INDIA AND ORS.

MARCH 5, 1997
B
[A.M. AHMADI, CJ., MRS: SUJATA V. MANOHAR
AND K. VENKATASWAMI, JJ.]

Wild Life (Protection) Act, 1972/lndian Forest Act, 1878: Sections 24,
C 33, 35(1) and (4)/Sections 5 and 26( l)(i)-Pench National Park-Notification
No. 5115/82-10/77 dt. 1.3.1983 u/s 35( 1)-Final Notification not is-
sued-Protection of traditional fishing rights of Tribals formerly residing in
Pench National Park area-Fishing permits issued by Col/ectol'-Challenged
on the ground that bio-diversity and ecology will be affected-Held, State to
issue expeditiously the final notification declaring the area as a National
D Park-Fishing permits granted to Tribals in lieu of traditional rights jus-
tified-Directions given for proper implementation of licence conditions.

The petitioner-an association of lawyers and others concerned with
the protection of environment, filed the present writ petition challenging
the order dt. 30.5.1996 of Govt. of Madhya Pradesh whereby 305 fishing
E permits were issued to tribals in Pench National Park area. The Pench
National Park area falling in the State of Madhya Pradesh and
Maharashtra was originally declared as a Reserved Forest under the
Indian Forest Act, 1878. By Notification No. 5/15/82-10/77 dt. 1.3.1983 the
Government of Madhya Pradesh under sec. 35(1) of the Wild Life (Protec-
F tion) Act, 1972 declared the area as a National Park. The Collectors of
Seoni and Chhindwara districts issued proclamations under sections 19
and 21 inviting claims within 60 days in respect of the areas notified. As
no claim was received, a final order under section 24 of the Act was issued
by both the Collectors. However, no final notification under sec. 35(4) was
issued by the Govt. of M.P. declaring the said area as a National Park. The
G Collector on consideration of the traditional rights of the tribals, issued
fishing permits in the Totladoh reservoir with certain conditions.

The contention of the petitioner was that if fishing was permitted in
the heart of the National Park, the bio diversity and ecology of the area
H will be seriously affected.
728
ANIMAL AND ENVIRONMENT LEGAL DEFENCE FUND. v. U.O.I. 729

The contention of the respondents was that the tribals had a tradi- A
tional right of fishing for their livelihood and permits were granted in lieu
of this traditional rights. It was further contended that if permits were not
given a serious problem of feeding and supporting their families will arise.

Partly allowing the petition, this Court
B
HELD : 1.1. The permits granted· are in lieu of traditional fishing
rights of the ttibals. And these permits are issued in settlement of these
rights prior to the final notification under section 35(4) notifying the area
as a National Park. Hence this do not fall under section 33. [734-H]

1.2. While every attempt must be made to preserve the fragile ecology
c
of the forest area, and protect the Tiger Reserve, the right of the tribals
formerly living in the area to keep body and soul together must also receive
proper consideration. Undoubtedly every effort should be made to ensure
that the tribals, when resettled, are in a position to earn their livelihood.
It would have been far more desirable, had the tribals been provided with D
other suitable fishing areas outside the National Park or had been given
land for cultivation. [735-8]

2. The petitioner is undoubtedly justified in expressing its apprehen-
sions and in pointing out the dangers of permitting 305 licensees to fish in E
the Totladoh reservoir. The fishing permits, however, have been granted to
the tribals in lieu of their traditional fishing rights. The Collector of
Chhindwara in his report has pointed out that fishing was the main source
of livelihood of tribals residing in the National Park area. No agricultural
land has been made available to them, no work has been made available to
them and they do not have any means of livelihood except catching fish which F
is their traditional occupation. If they are not given fishing permission a
serious problem of feeding and supporting their families will arise. The Col-
lector, therefore, recommended recognition of traditional rights of332 families
of 4 villages. In view of these reports the State Government has stated on
affidavit that it was satisfied that the traditional rights of fishermen had not G
been settled and instructions were given to the Chief Wildlife Warden for
issuing permission for fishing, to 305 local fishermen. [734-8-F]

3. The State of Madhya Pradesh shall expeditiously issue the final
notification under section 35(4) of the Wild Life (Protection) Act, 1972 in
respect of the areas of the Pench National Park falling within the State of H
•.>--
730 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Madhya Pradesh. Since all claims in respect of the National Park area in
the State Madhya Pradesh as notified under section 35(1) have been taken
care of, it is necessary that a final notification under section 35(4) is issued
by the State Govt, as expeditiously as possible. [737-F, D]

4. The State of M.P. while granting fishing rights have imposed
B certain conditions to contain the damage. The petitioners have rightly
pointed out the difficulties in maintaining the fishing activity of all these
permit-holders. In view of this, certain additional directions are issued for
properly implementing the licence conditions. [735-D, H, .736-A]

("
Pradeep Knshen v. Union of India & Ors., AIR (1996) SC 2040,
referred to.

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 785 of
1996.

(Under Article 32 of the Constitution of India.)
D
Raj Panjwani and Vijay Panjwani for the Petitioner.

Ms. Niranjana Singh for P. Parmeswaran for the Respondent No. 1.

S.K. Agnihotri for the Respondent No. 2.
E
Dr. Rajeev Dhawan, Naresh Mathur, E.C. Vidya Sagar and Ms.
Vllnla Sinha for the Intervenor.

G.B. Sathe and D.M. Nargolkar for the State of Maharashtra.

F The Judgment of the Court was delivered by

MRS. SUJATA V. MANOHAR, J. The petitioner is an association of
lawyers and other persons who are concerned with protection of the
environment. They have filed the present petition in public interest chal-
G lenging the order of the Chief Wildlife Warden, Forest Department,
Government of Madhya Pradesh (second respondent) granting 305 fishing
permits to the tribals formerly residing within the Pench National Park area
for fishing in the Totladoh reservoir situated in the heart of the Pench
National Park Tiger Reserve.

H The Pench National Park covers an area falling in the States of
ANIMAL AND ENVIRONMENT LEGAL DEFENCE FUND. v. U.O.l. {MRS. SUJATA V. MANOHAR, J.] 731

Madhya Pradesh and Maharashtra. The area which falls in the State of A
Madhya Pradesh covers two districts, Seoni and Chhindwara. The districts
of Seoni and Chhindwara were originally parts of the old C.P. and Berar
Province. This area was originally declared as a Reserved Forest under the
Indian Forest Act of 1878. It continued to remain as a Reserved Forest
under the Indian Forest Act of 1927. Under Section 5 of the Indian Forest
Act of 1927, once a notification is issued declaring any land as a reserved
B
forest no right shall be acquired in or over such land, except by succession
or under a grant or contract in writing made or entered into by or on behalf
of the Government or some person in whom such right was vested when
the notification was issued. Under Section 26(1)(i) of the Indian Forest

- Act, 1927, any person who in contravention of any rules made in this behalf
by the state Government hunts, shoots, fishes, poisons water or set.:> traps
or snares, shall be punishable .in the manner provided in that section.
C

According to the petitioner, in view of these provisions, the ancestors of
the present tribals could not have acquired any fishing right in the Pench
River. The present permits which are issued in lieu of this traditional right, D
therefore, are unwarranted and must be cancelled or set aside.

On the promulgation of the Constitution, the right to safeguard
forests and wild life has received constitutional sanction. Under Article
48A of the Constitution, the State shall endeavour to protect and improve
the environment and to safeguard the forests and wild life of the country. E
Under Article 51A(g), it shall be the duty of every citizen of India to
protect and improve the natural environment including forests, lakes, rivers
and wild life. In furtherance of these objectives, the Wild Life (Protection)
Act, 1972 was promulgated. It provides, inter alia, for declaration of
sanctuaries, national parks, game reserves and closed areas. Under Section p
35 of the Wild Life (Protection) Act, 1972, whenever it appears to the State
Government that an area, whether within a sanctuary or not, is by reason
of its ecological, fauna!, floral, geomorphological 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 environ-
ment, it may, by notification declare its intention to constitute such area as G
a National Park. Under sub-section (3) of Section 35 where any area is
intended to be declared as a National Park, the provisions of Sections 19
to 26 shal~ as far as may be, apply to the investigation and determination
of claims, and extinguishment of rights, in relation to iiny land in such area
as they apply to the·said matters in relation to any land in a sanctuary. H
732 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Under sub-section (4), when the period for preferring claims has elapsed,
and all claims, if any, have been disposed of by the State Government and
all rights in respect of lands proposed to be included in the National Park
have become vested in the State Government, the State Government shall
publish a notification specifying the limits of the area which shall be
B comprised within the National Park and declare that the said area shall be
a National Park on and from such date as may be specified in the notifica-
tion.

Accordingly, by Notification No. 5/15/82-10/77 dated 1.3.1983 the
Government of Madhya Pradesh Forest Department declared its intention
C under Section 35(1) of the Wild Life (Protection) Act, 1972, to constitute
the areas specified therein as a National Park. The area of Pench National
Park so notified was within the two districts of Seoni and Chhindwara. On
such declaration, the Collecter of the concerned district is required under
Section 19 of the Wild Life (Protection) Act, 1972 to enquire into and
determine the existence, nature and extent of the rights of any person in
D or over the land comprised within the limits of the sanctuary.

Under Section 21, the Collector is required to publish in every town
and village or in the neighbourhood of the area concerned, a proclamation
specifying the situation and the limits of the National Park and requiring
E any person, claiming any right mentioned in Section 19, to prefer before
the Collector, within two months a written claim in the prescribed form
specifying the nature and extent of such right with necessary details and
the amount and particulars of compensation, if any, claimed in respect
thereof.

F Under Section 22 the Collector is required to hold an enquiry in the
manner specified there. Accordingly on 10.12. 1985, the Collector, Seoni
issued a proclamation under Sections 19 and 21 inviting claims within 60
days in respect of the areas notified under Section 35(1) by the notification
of 1.3.1983. Apparently no one lodged any claim. The Collector issued a
G final order under Section 24 of the Wild Life (Protection) Act, on
28.8.1986.

The Collector, Chhindwara similarly issued a proclamation under
Sections 19 and 21 inviting claims. As no claims were received, a final order
under Section 24 was issued by the Collector, Chhindwara on 27.12.1986.
H However, no notification under Section 35(4) has yet been issued by the
ANIMAL AND ENVIRONMENT LEGAL DEFENCE FUND.'· U.O.l. [MRS. SUJATA V. MANO HAR, l.J 733

Government of Madhya Pradesh declaring the said area as a National Park. . A

As per the counter-affidavit filed on behalf of the second respondent
it has been stated that although the necessary proclamations were issued
earlier nobody came forward to claim their rights on account of illiteracy
and unawareness. However, recently three applications regarding claims
had been received pertaining to the traditional rights of villagers residing B
in 8 villages within the notified area which have now been relocated outside
the National Park area. These villagers are tribals. The villagers claim that
they had a traditional right of fishing for their livelihood in the Pench river.
They have claimed that their traditional right of fishing should be preserved
as this is their only source of livelihood. Most of these tribals have been C
displaced from their original villages and have been resettled in villages
outside the National Park area. Under an order dated 30.5.1996 these
tribals have now been given permits to fish in the Totladoh reservoir which
came into existence in 1986-87 on construction of a dam across the Ppnch
river as a part of the Pench Hydro Electric Project. The reservoir is in the D
·centre of the National Park area which partly falls in Maharashtra and
partly in Madhya Pradesh. Apparently, fishing activity has been started in
this reservoir by the Fisheries Development Corporation of the State of
Madhya Pradesh despite protests from the forest department.

The petitioner as well as the State of Maharashtra have pointed out E

- that if fishing is permitted in the heart of the National Park and as many
as 305 fishing permits are issued, the bio- diversity and ecology of the area
will be seriously affected. Fishing activity is a potential source of danger to
the National Park because it may also lead to illegal felling of trees or
poaching. It will be humanly impossible to monitor 305 licensees, their p
ingress and egress and to ensure that these licensees do not indulge in
poaching and other ecologically harmful activities. It is also pointed out
that in the Totladoh reservoir there are other .wild life varieties such as
crocodiles and turtles. There are also a wide range of local fishes. All these
may face extinction. The water birds as well as migratory birds that use
dead or dying trees and small islands in the reservoir as their roosting and G
nesting sites will also be disturbed. The fishermen uproot such dead and
dying trees to clear the path for movement of their boats. Their activity
along the peripheral shallow areas also prevents vegetation along the coast
line. The fishermen may light fires for cooking and other purposes or may
throw garbage and polythene bags which may also prove damaging to the. H
734 SUPREME COURT REPORTS [1997] 2 S.C.R.

A ecology of the area. There is also a danger of large scale poaching of wild

B
animals. The National Park is also a tiger reserve and all these other
activities have a direct bearing on the protection of wild life in the National
Park area.

The petitioner is undoubtedly justified in expressing his apprehen-
'
sions and in pointing out the dangers of-permitting 305 licensees to fish in
the Totladoh reservoir. The fishing permits, however, have been granted to
the tribals in lieu of their traditional fishing rights. Although the petitioner
relies upon the provisions of the Indian Forests Act in support of the
contention that the tribals cannot have any rights in a Reserved Forest
C which has subsequently become a National Park, the Collector of
Chhindwara, in his report has pointed out that in fact there were four
villages of tribals in the Chhindwara District falling within the Reserved
Forest-cum-National Park area where these tribals resided and fishing was
their main source of livelihood. Thus the collector of Chhindwara in his
D letter of 7th of June, 1996 addressed to the Secretary, Government of
Madhya Pradesh, Forest Deparfment, in connection with the issuin~ of a
final notification for the establishment ·of Pench National Park has stated
that displaced persons from 4 villages namely, Palaspani, Umarighat,
Chhindewani and Chhedia have traditional fishing rights in Pench river.
After displacement these persons have not been rehabilitated systematical-
E ly. No agricultural land has been made available to them, no work has been
made available to them and they do not have any means of livelihood
except catching fish which is their traditional occupation; If they are not
given fishing permission a serious problem of feeding and supporting their
families will arise. He has, therefore, recommended recognition of tradi-
F tional rights of 332 families of 4 villages. In view of theS£: reports the State
Government has stated on affidavit that it was satisfied that the traditional
rights of fishermen had not been settled and instructions w~re given to the
Chief Wildlife Warden for issuing-permission for fishing to 305 local
fishermen whose names are set out in the annexure to the affidavit of
respondent No. 2 Under Section 33(e) of the Wild Life (Protection) Act
G as it stood prior to its amendment in 1991, the Chief Wildlife Warden had
the power to "regulate, control or prohibit, any fishing". This provision is
deleted by the amendment made in Section 33 in 1991. The permits granted
in the present case, however, are in lieu of traditional fishing rights of the
tribals. And these permits are issued in settlement of these rights prior to
H the final notification under Section 35(4) notifying the area as a National
ANIMAL AND ENVIRONMENT LEGAL DEFENCE FUND. v. U.0.1. [MRS. SUJATA V. MANO HAR, J.) 735

Park. Hence these do not fall under Section 33. A
Therefore, while every attempt must be made to preserve the fragile
ecology of the forest area, and protect the Tiger Reserve, the right of the
tribals formerly living in the area to keep body and soul together must also
receive proper consideration. Undoubtedly, every effort should be made to
ensure that the tribals, when resettled, are in a position to earn their B

-- livelihood. In the present case it would have been far more desirable, had
the tribals been provided with other suitable fishing areas outside the
National Park or had been given land for cultivation. Totladoh dam where
fishing is permitted is in the heart of the National Park area. There are
other parts of the reservoir which extend to the borders of the National C
Park. We are not in a position to say whether these outlying parts of the
reservoir are accessible or whether they are suitable for fishing, in the
absence of any material being placed before us by the State of Madhya
Pradesh or by the petitioner. Some attempts, however, seem to have been
made by the State of Madhya Pradesh to contain the damage by imposing
conditions on these fishing permits. the permissions which have been given D
J are subject to the following conditions :-

(1) The identified families will be given photo identity cards only on
the basis of which fishing and transport will be permitted;

(2) During the rainy season (months: July to October) fishing will E

- be totally banned;

(3) During the rest of the year, entry will be permitted in the water
from 12 p.m. to 4 p.m. and transport of fish will be allowed before
sunset;
F
- (4) The photo identity card holders will not be allowed to enter the
National Park or the Islands· in the reservoir nor will they be

- allowed to make night halts;

(5) Transport of fish will be allowed only on Totladoh--Thuepani G
Road from Totladoh reservoir.

Despite these conditions the petitioner as well as the State of
Maharashtra have opposed these fishing permits being granted. They have
rightly pointed out the difficulties in monitoring the fishing activity of all
these permit holders. H
736 SUPREME COURT REPORTS [1997] 2 S.C..R.

A We, therefore, find it necessary to clear some doubts and give some
additional directions for properly implementing the licence conditions. We
direct that :

(1) Only the persons named in Annexure R-XVI to the affidavit of
respondent No. 2 shall be given individual permits for fishing in
B Totladoh.reservoir. Each permit holder will have a photo identify
card with his photograph on it. This will be a personal right given
to the identity card holder and the permit granted to him shall
not be transferable. The permit will also bear the photograph of
the permit holder.
-
c (2) The permit holder will be entitled to enter the National Park
area only at Thuepani and shall be entitled to travel through the
National Park only on the Highway joining Thuepani to Totladoh.
He will not have any right to enter or travel in the National Park
area except along the said highway in order to have access to. the
D Totladoh reservoir .

. (3) The wildlife Warden and/or any other authority nominated by
the Madhya Pradesh Government shall demarcate the area of
. the reservoir over which these permit holders are allowed to fish.

E (4) It shall be made clear that the permit holders shall not be entitled
to have any access to the islands in the reservoir.

(5) The State of Madhya Pradesh shall maintain check posts along
the route of these fishermen to ensure that the fishermen do not
transgress into any other part of the National Park.
-
F
(6) A daily record of the entry and exit of each permit holder and
' the quantity of fish carried by him out of the National Park shall
be maintained.

(7) The fishermen will be prohibited from lighting fires for cooking
G
or for any other purpose along the banks of the reservoir nor
shall they throw any litter along the banks of the reservoir or in
the water.

(8) The Madhya Pradesh State ·Government shall sanction an ade-
H quate number of .personnel as also vehicles and boats for the
ANIMAL AND ENVIRONMENT LEGAL DEFENCE FUND. v. U.O.l. (MRS. SUJATA V. MANOHAR, J.] 737

purpose of monitoring the activities of these 305 permit holders. A
A monitoring squad shall be posted not merely at ·the entrance
to the National Forest area but also along the route or in other
areas of the National Forest as may be required to ensure that
there is no poaching or other undesirable activity by the permit
holders.
B
The intervenor organisation which has intervened in this petition,
namely, Jan Van Andolan Samiti, Totladoh shall explain to the concerned
fishermen, the conditions, subject to which they are allowed to fish in the
Totladoh reservoir and shall impress upon these fishermen their obligation
to carry on the fishing activity in a manner which does not damage the C
ecology of the National Park or disturb its environment.

Since all the claims in respect of the National Park area in the State
of Madhya Pradesh as notified under Section 35(1) have been taken care
of, it is necessary that a final notification under Section 35(4) is issued by
the State Government as expeditiously as possible. In the case of Pradeep D
Krishen v. Union of India & Ors., AIR (1996) SC 2040, this Court had
pointed out that the total forest cover in our country is far less than the
ideal minimum of 1/3rd of the total land. We cannot, therefore, afford any
further shrinkage in the forest cover in our country. If one of the reasons
for this shrinkage is the entry of villagers and tribals living in and around E
the sanctuaries and the National Park there can be no doubt that urgent
steps must be taken to prevent any destruction or damage to the environ-
ment, the flora and fauna and wild life in those areas. The State Govern-
ment is, therefore, expected to act with a sense of urgency in matters
enjoined by Article 48A of the Constitution keeping in mind the duty
enshrined in Article 51A(g). We, therefore, direct that the State Govern- F
ment of the State of Madhya Pradesh shall expeditiously issue the final
notification under Section 35( 4) of the Wild Life (Protection) Act, 1972 in

- respect of the area of the Pench National Park falling within the State of
Madhya Pradesh.·
G
The petition is disposed of with these directions.

S.V.K.I. Petition disposed of.