IMPORTANT POINT
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 must also receive proper consideration and every effort should be made to ensure that the tribals, when resettled are in a position to earn their livelihood.

JUDGMENT

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 challenging 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.

2. The Pench National Park covers an area falling in the States of Madhya Pradesh and Maharashtra. The area which falls in the State of 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 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 sets traps or shares, shall be punishable in the manner provided in that section. 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, therefore, are unwarranted and must be cancelled or set aside.

3. On the promulgation of the Constitution, the right to safeguard forests and wild life was 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. 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 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, faunal, 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 environment, it may, by notification, declare its intention to constitute such area as 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 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 santuary. 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 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 notification.

4. Accordingly, by Notification No. 5/15/82-10/77 dated 1.3.1983 the Govern