CONSUMER EDUCATION AND RESEARCH SOCIETYversusUNION OF INDIA AND ORS.

      CONSUMER EDUCATION AND RESEARCH SOCIETY                                     A
                                      v.
                     UNION OF INDIA AND ORS.

                           FEBRUARY 16, 20CO
                                                                                  B
              [G.T. NANAVATI AND S.N. PHUKAN, JJ.j


      Wild Life Protection Act, 1972: Sections 18(1) and 26A(3).

      Forest Area-Declaration of as "Wildlife Sanctuary-Reduction in area
of sanctuary limit subsequently-Legality of.                                      c
       State of Gujarat-Notification declaring forest area as a wildlife
sanctuary-Cancellation of notification and issue of another notification
whereunder only a party of the said reserved forest declared as wild/ife
sanctu~elimitation to the area of sanctuary successfully challenged               D
before High Co~Thereafter State Legislature passed a Resolution reducing
the sanctuary limit-Rest of the area made available for development of
backward area of District--Consequential notification by Government-Writ
challenging Resolution and Notification dismissed by High Court-Appeal
before this Court--lnterim order by Supreme Court permitting mining of
limestone for meeting the requirements of a cement plant-Held the power to        E
take a decision for reduction of the notified area is not given to the State
Government but to the State Legislature--lf an attempt is made by the State
Legislature and the State Government to balance the need of the environment
and the need of economic development it would not be proper to apply the
principles of Prohibition in such a case--lt would be proper and safer to apply   F
the 'Principle of Protection' and the 'Principle of Polluter Pays' keeping in
mind the principle of 'sustainable development' and the 'principle of inter-
generation equity'-The impugned resolution and the notification do not
deserve to be quashed-Proper course is to permit restricted and regulated
exploitation of mineral wealth--Direction by Supreme Court-The interim
order passed by this Court shall continue for a period of one year-if a need      G
arises to carry out mining operation in a larger area that may be permitted
only after obtaining an order to that effect from this Court-The State Govern-
ment shall constitute a Committee to make a comprehensive study of the
relevant environmental aspects and also to study the effects of the present
limited mining operation permitted by this Court-It shall also study the effect   H
                                     907
    908                   SUPREME COURT REPORTS                  [2000) 1 S.C.R.
A of rnnning of the cement plant set up outside the old sanctuary area-The
  State Government is restrained from giving permission to others to cany on
  any mining operation or to put up a cement plant within the area of JO kms.
  from the periphery of the old sanctuary area without obtaining an order from
  this court-State Government shall also take steps to monitor air and water
B pollution in this area every three months through its officers and submit its
  report in that behalf-The State Government shall also submit a yearly report
  to this Court as regards the action taken by it.

        State Legislature-Resolution to reduce the limit of wild/ife
  sanctuary-Validity of-Power of court to interfere with decision of State
C Legislature in such a matter-Held it is not proper to question the decision
  of the State Legislature in a matter of this type unless there are substantial
  and compelling reasons to do so.

         CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
    No. 13658 of 1996.
D
         From the Judgment and Order dated 11.10.95 of the Gujarat High
    Court in S.C.A. No. 6507 of 1995.

        Ashok Desai, Attorney General, K.N. Rawal, Altaf Ahmad, Mukul
  Rohatagi, Additional Solicitor Generals, Dr. Rajiv Dhawan, N.N. Gos-
E wami, Dr. Abhished Manu Singhvi, R.P. Bhatt, P. Chidambaram, Harish
  N. Salve, Arun Jaitley, Naresh Mathur, S.K. Dholakia, Ashok Desai, G.
  Ramaswamy, Bhaskar Tanna, Raju Ramachandran, Soli J. Sorabjee,
  Naresh Mathur, N.K. Sahool, Ms. Indoo P. Verma, Samecr Parekh, P.H.
  Parekh, N. Singh Rohit Mammen Alex, Ms. Hemantika Wahl, Ms. M.
F Kaur, Anupam Lal Das, Ms. Sandhya Rajpal, T.C. Sharma, Hemant Shar-
  ma, S.K. Dwivedi, P. Parmeswaran, Narcsh Bakshi, B.V. Bairam Das, Ms.
  Sumita Hazarika, \is. Sunita Sharma, Anip Sachthey, Ms. Anu Sawhney,
  Anupam Lal, AL. Das, Ms. Shweta Shalini, B.V. Balaram Das, H. Munshi,
  J.P. Pathak, Ms. Indra Sawhney, Krishna Venugopal, C.D. Singh, Ms. Bina
  Madhavan, Ms. Anil Katiyar, M.N. Shroff, Mihar Joshi, Ms. Mahrook
G Karawala, S.R. Hegde, Ms. Tanuja Sheel and Ms. Reema Bhandari for the
  appearing parties.

          The Judgment of the Court was delivered by

          G.T. NANAVATI, J. ln this special leave petition the judgment and
H   order passed by the High Court in Special Civil Application No. 6707 of
     CO!<SL Mf:R EDUlAl10N AND RESEARCH SOC!ElY Y. U.U.!. [NANA VATI, J.)   909

1995 is challenged. The petitioner had filed the writ petition challenging A
the Govermm:nt Notification dated 9.8.1995 and the Resolution dated
27.7.1995 passed by the State Legislature reducing the area of "Narayan
Sarovar Chinkara Sanctuary" from 765.79 Sq. K.M. to 444.23 Sq. K.M. The
High Court dismissed that petition.

       On 14.4.1981 the Government of Gujarat, in exercise of the powers
                                                                                  B
conferred by Section 18(1) of the Wild Life Protection Act, 1972, declared
a part of the forest area in Lakhphat Taluka of Kutch District as a ''Wild
Life Sanctuary;. The total area of the sanctuary was 765.79 Sq. K.M. On
27. 7.1993 it cancelled that notification and issued another whereby only a
part of the said reserved forest was declared as the "Chinkara Wild Life          c
Sanctuary". The area so declared was 94.87 Sq. K.M. The said two notifica-
tions were challenged by the petitioner by filing writ petitions in the
Gujarat High Court. The High Court quashed both those notifications. The
result was that the earlier notification dated 14.4.1981 was revived. There-
after the State Government made certain inquiries and decided to delimit          D
the area of that sanctuary as it was found to be more than required and
the delimitation was likely to be.: helpful in systematically developing that
area economically by making use of its mineral wealth. It then moved the
State Legislature for passing an appropriate resolution in that behalf. The
State Legislature, thereafter on 27. 7.1995, passed a resolution to reduce the
sanctuary limit to 444.23 Sq. K.M. and make the area of 321.56 Sq. K.M.           E
rich with minerals like limestone, lignite, bauxite and bentonite, available
for the development of the said backward area of Kutchh District. The
resolution was passed in exercise of the powers conferred by Section
26A(3) of the Wild Life Protection Act. Pursuant to that resolution the
Government issued a notification to that effect on 9.8.1995. The petitioner       F
again challenged those notifications by filing the writ petition.

      The High Court, after scrutinising the resolution, was of the view that
"the State Legislature was quite aware about the wild life as without in any
way diluting the commitment to protect wild life and to improve the
habitat, positive steps are taken so neither wildlife is affected nor the G
improvement is affected." The High Court held that for about 12CO
Chinkaras the area of 444.23 Sq. K.M. was quite sufficient. It further held
that economic development of the area was likely to benefit the people of
Kutchh District at large and help in prottction, preservation and develop-
ment of flora and fauna of that area. As regards permission to set up the H
    910                   SUPREME COURT REPORTS                     [2000] 1 S.CR.
A cement plant near that area and to do mining in the de-notified area, it
    held that proper conditions have been imposed for preventing pollution
    and to meet other environmental requirements. Taking this view it dis-
    missed the writ petition.

          Initially an attempt was made to see if it was possible to pass an
B   agreed order. But that attempt did not succeed. On 8.5.1997 the following
    interim order was passed.


            ".............. without prejudice to the rights and contentions of the
            parties in the pending S.L.P. (C) No. 13658 of 1996, the respondent
c           No. 6 is permitted to undertake prospective operation for the
            proposed lime-stone mining in respect of 500 Hee. being close to
            their Cement Factory in a compact block which will also be close
            to the boundary of the reserved sanctuary. The respondent No. 6
            is permitted to carry on actual mining operation of lime-stone in
            any area confined to 250 Hee., on condition that the lime-stone
D
            which will be extracted by such mining operation will not be sold.
            Such mining operation, however, may be carried on after getting
            necessary permission from all concerned authorities under various
            Acts. The respondent No. 6 will also furnish bank guarantee of a
            nationalised bank for a sum of Rupees fifty lakhs, for the purpose
E           of compensating damage to the disputed area and for meeting
            obligation, if any, flowing from any order that may be passed later
            on.•

    Meanwhile, an Expert Committe of the Gujarat Government carried out
p   the study of that area and submitted its report to the Government. On
    14.5.1999 both the parties were again heard. The report submitted by the
    Expert Committee, an earlier report of the Wild Life Institute and the
    counter affidavit filed by tht: Central Govt:rnment were considert:d. It was
    found that all the relevant aspects wc::rc not considered by the two Com-
    mittees which had enquired into the matter. It was, therefore, thought
G   proper to direct the Central Govc::rnment to constitute an Expert Commit-
    tee consisting of experts in differcnt disciplines. That Committee. was
    directed to undertake a survey of the Narayan Sarovar Sanctuary as
    originally notified and to consider in the light of the subsequent de-noti,fic~­
    tion wht:ther the remaining area is of adequate ecological, fauna1., floral
H   geomorphological, natural or zoological significance for the µuip""· OJ
     CONSUMER EDUCATION AND RESEARCH SOCIETY v. U.0.1. [NANAVATI, J.]      911

protecting, propagating or developing wild life and its environment.              A

      The matter was thereafter heard on 11.1.2000, 12.1.2000, 13.1.2000
and 19.1.2000. It was submitted by Mr. Rajiv Dhawan, learned senior
counsel appearing for the petitioner that the State Government had wrong-
ly assumed and believed that the purpose of the notification dated
14.4.1981 was just to protect the Chinkaras in that area. In fact it was issued   B
with a view to protect the eco-system also. He also submitted that the State
Government did not apply its mind to all the relevant aspects, did not call
for any further information and mainly relying upon the opinion of the
State Government passed the impugned resolution. He also submitted that
the fact that there were a large number of trees on the land which was            c
given on lease for the purpose of setting up the cement plant was not
brought to the notice of the Legislature. The Legislature was also not made
aware of the condition imposed by the Union of India on 16.6.1995 that no
mining be done within 25 K.M. of the original sanctuary. He further
submitted that the Debate which took place in the Assembly discloses that         D
the information which was available to the Member of the Assembly was
insufficient and only because the majority of the Members so desired that
the said resolution came to be passed.

      What we find from the Debate that took place in the Assembly and
the resolution is that the matter was discussed for two days, number of           E
objections that was raised were considered and the decision was taken in
overall public interest. The following paragraph from the resolution dis-
closes that :

        "AND WHEREAS the State Government has considered all p
        aspects of the problem in arriving at this conclusion. Protecting
        the wildlife is an article of faith for the Government and the
        Government does not intend to give a go by to that commitment
        merely for the sake of development. At the same time the nature
        resources available in the area is a key to sustainable development
        and this is all the more so to a more backward region like Kutch G
        which is ravaged by nature's inhospitality and which is based upon
        minerals and enter into an area of development and prevents
        famine, unemployment and migration. Kutch and its people have
        been neglected in the development process due to several adverse
        conditions. The geological explorations have revealed good H
    912                   SUPREME COURT Rf.PORTS                 (2000] 1 S.C.R.

A           deposits of certain minerals which can be the foundation for the
            development of Kutch. It has become necessary to make such
            mineral available for exploitation and with this intention and
            without in any way diluting the commitment to protect wild life
            and tu improve the habitat by po>itive steps the Government is
            proposing this resoluriun under the provisions of S.:ction 26A(3)
B           of the Wild Life (Protection) Act, 1972."

  We agree with Mr. Dhawan that aspects deserved better consideration and
  some other relevant aspects should also have been taken into account by
  the State Legislature. But it will not he proper to invalidate the resolution
C of the State Legislature on such a ground when we find that it took the
  decision after duly ddiberating upon the material which was available with
  it and did not think lt necessary to call for further information. The power
  to take a decision for reduction of the notified area is not given to the State
  Government but to the State Legislature. The State Legislature consists of
D representatives of the people and it can be presumed that those repn:-
  sentatives know the local areas well and are also well aware of the require-
  ments of that area. It will not be proper to question the decision of the
  State Legislature in a matter of this type unless there are substantial and
  compelling reasons to do so. Even when it is found by the Court that the
  decision was taken by the State Legislature hastily and without considering
E all the relevant aspects it will not be prudent to invalidate its decision
  unless there is material to show that it will have irreversible adverse effect
  on the wild life and the environment.

         The forest in the notified and de-notified areas is an edaphi<; thorn
F forest. It is a desert forest but with a large number of trees. It has been
  identified as a potential site for d~ignation as a bio-spht:re reserve by an
  Expert Committee constituted by the Ministry of Environment and Forest.
                                                                                    -
  It has been put in a Rich area category'', from bio-diversity poiot of view,
  by the Gujarat Ecology Commission. Ewn the Union of India in its
G affidavit has stated that the de-notified area of the sanctuary iocludes many
  areas of high and wry high floral and fauna! value and these areas form
  integral part of the !'larayan Sarovar Sanctuary. The Rapid Impact Assess-
  ment Report by the Wildlife Institute of India has also poioted out that any
  reduction io the area of that sanctuary will reduce the number of species
  of trees. It is also at the same time true, as pointed out by the Government,
H that this part of the Kutch District is a backward area. There is no other
     CUNsl:MbR hDUCATION AND RESEARCH SOCIEIY v. l!.0.1. [NANA VATI, J.J   913

possibility of industrial development in that area, though it contains rich       A
mineral deposits. Therefore, if an attempt is made by the State Legislature
and the State Gowrnment to balance the need of the environment and the
need of economic development it would not be proper to apply the
principles of Prohibition in such a case. The reports of the three commit·
tees only point out the ecological importance of the area and express an
apprehension, that any major mining operation within the notified area and
                                                                                  B
large scale industrialisation near about the sanctuary as originally notified,
may adversely affect the ecological and bio·diversity of that area. It would,
therefore, be proper and safer to apply the 'Principle of Protection' and
the 'Principle of Polluter Pays' keeping in mind the principle of 'sustaina.ble
development' and - the 'principle of Inter·generation equity".                    c
       For the reasons stated above, we are not inclined to accept the
contention raised by Mr. Dhawan that the impugned resolution and the
notification deserve to be quashed. In our opinion the proper course to be
adopted in this case is to permit restricted and controlled exploitation of       D
the mineral wealth of that area, watch its effects for a period of about five
years and direct a comprehensive study of the notified and denotificd area
from the environmental point of view.

      We, accordingly direct that (1) the interim ordt:r passed by this Court
shall continue for a period of one year. If a need arises to carry out mining     E
operation in a larger area that may be permitted only after .obtaining an
order to that effect from this Court; (2) the Stak Government shall
constitute a Cimn1ittt>e headed by & r::tir.;;<l J,iJ;sc cJf we Gu.fatal High
Court and consisting of experts in the fields of hydrology, soil erosion and
other related disciplines to make a comprehensive study of the rdevant            F
environmental aspects and also to study the effects of the present limited
mining operation permitted by this Court. It shall also study the effect of
running of the cement plant set up outside the old sanctuary area. The
Committee shall, for this purpose, visit the area twice in a year, once before
the monsoon and thereafter sometime after the monsoon, and submits its
report to the State Government and to this Court, (3) the State Govern·           G
ment is restrained from giving permission to others to carry on any mining
operation or to put up a cement plant within the area of 10 Krns. from the
periphery of the old sanctuary area without obtaining an order from this
Court. The State Government shall also take steps to monitor air and water
pollution in this area every three months through its officers and submit its     H
   914                    SUPREME COURT REPORTS                  [2000] 1 S.C.R.
A report in that behalf. After considering the reports the State Government         •~
  shall take appropriate steps for controlling and improving the same. The
  State Government shall also submit a yearly report to this Court as regards
  the action taken by it. This S.L.P. is ordered to be listed after one year for
  further orders. It will be open to the parties to approach this Court earlier
B if any clarification or modification of this order is required.
    T.N.A.                                              Petition is still pending