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2010 Supreme(Kar) 287
2010(6) Kar. L.J. 455 (DB)
IN THE IDGH COURT OF KARNATAKA AT BANGALORE (DIVISION BENCH)
V. GOPALA GOWDA AND B.S. PATIL, JJ.
P.K. FRAVESH AND OTHERS
Versus
STATE OF KARNATAKA AND OTHERS
Writ Petition Nos. 26621 to 26629 of 2009 (GM-MV) connected with Writ Petition Nos. 17498 of 2009 (GM-RES-PIL) and 919 of 2010 (GM-RES-PIL).
Decided on: 9th March, 2010
WILD LIFE (PROTECTION) ACT, 1972, Section 38(v) - Constitution of India, Articles 19(1)(g), 19(6), 48-A and 51-A(g) - Fundamental right under Article 19(1)(g) is subject to Article 19(6) which permits reasonable restrictions to be imposed on it in the interest of general public - Order passed by the Deputy Commissioner prohibits movement of all kinds of motor vehicles on Bandipur National Highway No. 202 and National Highway 67 from 9.00 p.m. to 6.00 a.m. - Order banning vehicular traffic with a view to protect wildlife, forest, ecology and environment - Fundamental duty of every citizen of India to protect and improve the natural environment - Necessary for every individual to extend support for maintaining peaceful habitation of the nocturnal animals during night hours - Any prohibition or restriction imposed on their rights commensurate with this purpose in the wake of availability of alternate roads is legally justified.
V. Gopala Gowda and B.S. Patil, JJ., Held: It follows that if such restrictions are imposed for banning vehicular traffic during night hours from 9 p.m. to 6 a.m. with a view to protect the wild life, forest, ecology and environment, then the said restrictions can be supported from the stand point of the fundamental duty cast on the citizen under Article 51-A(g) and also from the directive contained under Article 48-A of Chapter IV consisting directive principles of State policy. It is useful to refer to Article 51-A(g) which states that it shall be the duty of every citizen of India to protect and improve the natural environment including the forests, lakes, rivers and wildlife and to have compassion for living creatures. Article 48-A deals with protection and improvement of environment and safeguarding of forests and wild life. It states that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Therefore, any restriction placed on the right of the commuters, traders, transporters or other people by transporting certain goods prohibiting them from transporting the same during the specified hours from 9 p.m. to 6 a.m. in the part of the road which passes through the critical' section of 13 kms in the case of NH-212 and 20 kms. in the case of NH-67, it can be supported from the stand point of the fundamental duty of each one of the citizens who shall protect the wild life, forest, ecology and environment. So much hardship or difficulty as is necessary to extend support for maintaining the peaceful habitation of the nocturnal animals during night hours, if undergone by the affected individuals of the locality, it will only result in these individuals discharging their fundamental duties. Any prohibition or restriction imposed on their rights commensurate with this purpose, in the wake of the availability of the alternate roads can be legally justified and the same cannot be characterised as arbitrary or unreasonable affecting the fundamental rights of these citizens under Article 19(1)(g) of the Constitution. . . . . . In the case of K.M. Chinnappa v Union of India, AIR 2003 SC 724 :(2002)10 SCC 606, in paragraphs 17 and 29, the Apex Court dealing with Article 48-A has held that Articles 48-A and 51-A(g) impose obligations on the State and the citizens of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. . . . . . . It is unnecessary for us to deal with all the other decisions cited in this regard by the learned Counsel for the petitioners, suffice to observe that the ban imposed only during night hours that too from 9 p.m. to 6 a.m. is guided by factors which required urgent action to protect the wild life and to preserve its peaceful habitat, particularly keeping in mind the nocturnal animals' peaceful habitat and the danger posed to the rare species. The endeavour of the mankind has to keep pace with the changing circumstances. The sacrifice that we do in small measure today in protecting these species including the tigers which are the threatened species will go a long way and the posterity will acclaim the same with deep gratitude and appreciation although this is no more than just a discharge of the fundamental duties cast on the citizens by the Constitution. The hardship faced by the public can be compensated by directing the State Government to take appropriate and adequate measures to improve the conditions of the alternate roads and to urgently attend to the areas where the alternate roads are not in good condition. (paras 27, 28 and 29)
Headnote:CONSTITUTION OF INDIA - Articles 19, 48-A & 51-A (g): [V.Gopala Gowda & B.S. Patil,JJ] Imposition of restrictions on movement of traffic at night on two National Highways cut through Bandipur Tiger Reserve and National Park - Challenge as to - Held, Restrictions were imposed with a view to protect wild life., forest, ecology and environment. Alternative roads were available for movement of traffic as such no fundamental rights of citizens were violated. Fundamental duty is cast on every citizen of India to protect and improve natural environment. Imposition of restriction on movement of traffic at night cannot be characterised as arbitrary or unreasonable.
MOTOR VEHICLES ACT, 1988 - Section 115 & Karnataka Motor Vehicles Rules, 1989, Rule 221: [V. Gopala Gowda & B.S. Patil,JJ] Imposition of restrictions on movement of traffic at night on two National Highways cut through Bandipur Tiger Reserve and National Park - Challenge as to - Held, Restrictions were imposed with a view to protect wild life., forest, ecology and environment. Alternative roads were available for movement of traffic as such no fundamental rights of citizens were violated. Fundamental duty is cast on every citizen of India to protect and improve natural environment. Imposition of restriction on movement of traffic at night cannot be characterised as arbitrary or unreasonable.
In this batch of writ petitions, there are two competing claims by two sets of persons. In W.P. Nos. 17498 of 2009 and 919 of 2010, some public spirited persons and an organisation have presented before the Court a serious question of public importance pertaining to protection of wildlife in the Bandipur National Park and Tiger Reserve Area. The other set of writ petitions bearing W.P. Nos. 26621 to 26629 of 2009 are by persons carrying on transport business with valid permit to run the buses plying through certain specified areas including the Bandipur National Park Area.
2. During the pendency of these writ petitions, various persons have come up with applications to implead themselves claiming that they are• also interested in airing their grievance before this Court. These applicants include the Kerala Road Transport Corporation by its Managing Director; State of Kerala represented by its Secretary, Transport Department; State of Tamil Nadu represented by the District Collector; District Collector, Nilagiri District, Udhagamandalam; Sri M.I. Shanavas, Member of Parliament, Wayanaad Constituency, Kozhikode District; and Sri M.K Raghavan, Member of Parliament, Kozhikode Constituency, State of Kerala.
3. Brief facts necessary for appreciating the questions involved including the nature of the reliefs sought in these writ petitions and the background setting for the same are stated as under:
4. Bandipur Tiger Reserve and National Park is a very important and echo sensitive wildlife habitat. Two National Highways viz., NH-212 and NH-67 cut through this National Park and Tiger Reserve Area. There has been an outcry from the public at large and the wildlife and environmental protagonists in particular to ban traffic through the National Park and Tiger Reserve Area so as to protect the precious wildlife in this place. The demand for regulating and restricting the heavy traffic in this area has been mainly because of the accidents that have been taking place on these roads in the National Park killing several wild animals including precious species. That is how the public anguish came to be voiced in different quarters. As a result of the same and on the basis of the letter dated 23-1-2009 written by the Deputy Conservator of Forests, Wildlife Division, Tiger Project, Bandipur Division of Chamarajanagar District, the Deputy Commissioner, Chamarajanagar passed an order dated 3-6-2009 in exercise of his powers under Section 115 of the Motor Vehicles Act, 1988 read with Rule 221-A(5) of the Karnataka Motor Vehicles Rules, 1989, prohibiting traffic of all kinds of motor vehicles on Bandipur National Highway No. 212 between Gundlupet and Sulthan Batheri and on National Highway No. 67 between Gundlupet and Ooty on certain conditions with effect from 8-6-2009. The restriction of the movement of traffic was to operate from 9 p.m. in the night till 6 a.m. in the early morning. However, in order to help the public and the villagers, two buses were allowed to ply between the said hours i.e., to say from 9 p.m. to 10 p.m. The emergency services regarding medical care and plying of ambulances were permitted by making provision for giving passes for the same. Based on this, a public notice dated 7-6-2009 came to be issued intimating the public that the order will come into force with effect from 14-6-2009.
5. However, by another order dated 10-6-2009, the Deputy Commissioner withdrew the order dated 3-6-2009 stating that the withdrawal was provisionally made, as after the issue of the notification dated 3-6-2009, representations were received from P. Krishna Prasad, MLA, Sulthan Batheri and Assistant Transport Officer, KSRTC, Kalpetta, Waynaad, stating that the order might cause inconvenience to the people of Waynaad and other parts of Kerala. Aggrieved by the withdrawal of the notification and requesting for issuance of a direction to the authorities concerned to implement and enforce the night ban on traffic on these two roads and also seekin
