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IN THE HIGH COURT OF BOMBAY
Thakker C.K., C.J. Radhakrishnan S., J.
Bombay Environmental Action Group others .... Petitioners.
Versus
A.R. Bharati, Deputy Conservator of Forest others.... Respondents.
Writ Petition No. 305 of 1995 with Notice of Motion Nos. 124, 364 of 2001 with Notice of Motion No. 117 of 2002 with Notice of Motion Nos. 293, 294 of 2003 with in (A.S.) W.P. Nos. 2054, 2189, 4382, 4383, 4384, 4385, 4386, 4387, 1771, 1241, 1761, 1762, 1763, 1764, 1765, 1766, 1211, 1463, 1464, 1465, 1579, 1802, 2062, 1126 of 2000 in (O.S.) W.P. Nos. 513, 515, 2157 of 1998 with Contempt Petition No. 12 of 1999 in W.P. No. 2031 of 1997 with W.P. No. 689 of 1999 with W.P. No. 1790, of 2000 along with Notice of Motion No. 242 of 2000 with Contempt Petition No. 85 of 2000 in W.P. No. 1579 of 2000 with W.P. No. 1119 of 2000 with Notice of Motion No. 167 of 2001 and Notice of Motion No. 280 of 2003 with Notice of Motion No. 410 of 2000 in W.P. No. 1099 of 2000 with W.P. No. 694 of 2003 with Pauper Petition No. 2 of 2001, decided on 31-7/15-9-2003.
Advocates appeared :
Gautam Patel with M.S. Doctor, i/b. M.V. Jaykar Co., in W.P. No. 305/1995, in Notice of Motion Nos. 124/2001, 117/2002 293, 294/2003, for petitioners.
Rafiq Dada, Sr.C., in W.P. No. 305/1995, for Committee (amicus curiae).
R.M. Sawant, G.P. with K.R. Belosey, A.G.P., in W.P. Nos. 305/1995, 513, 515, 2157/1998, 689/1999, 1771, 1241, 1766, 1211, 1465, 1802, 2062, 1126/2000, in Notice of Motion Nos. 124/2001, 117/2002, 293, 294/2003, in Contempt Petition No. 85/2000 in W.P. No. 1579/2000, in Notice of Motion No. 410/2000 in W.P. No. 1999/2000, for State in Contempt Petition No. 12/1999 in W.P. No. 2031/1997, for respondents.
Mrs. P.A. Purandare, in W.P. No. 305/1995, W.P. Nos. 1211/2000, 1802/2000, in Notice of Motion Nos. 124/2001, 293, 294/2003, in W.P. No. 1790/2000 along with Notice of Motion No. 242/2000, in W.P. No. 1119/2000 with Notice of Motion No. 167/2001 Notice of Motion No. 280/2003, for Bombay Municipal Corporation in Notice of Motion No. 117/2002, for respondent No. 4.
Mrs. J.M. Sidhwa i/b. L.C. Tolat Co., in Notice of Motion No. 124/2001, for applicants.
M.P. Vashi, in Notice of Motion No. 364/2001, for applicant and in W.P. Nos. 2157/1998, 2062/2000, 694/2003, for petitioners.
Ms. Maharukh Adenwalla, in Notice of Motion No. 294/2003, for applicants, in Contempt Petition No. 12/1999 in W.P. No. 2031/1997, for petitioners..
Anand Grover with Ms. Firdosh Moosa Prakash Mahadik, in W.P. No. 2189/2000, for petitioners.
C.J. Sawant S.C. with V.P. Malvankar, A.G.P., in W.P. No. 2189/2000, for State.
Om Prakash Shukla i/b. Mehta Girdharlal, in W.P. No. 4387/2000, for petitioners.
V.P. Malvankar, A.G.P., in W.P. No. 4387/2000, for State.
J.N. Shetty, in W.P. Nos. 513, 515/1998, for petitioners.
Mihir Desai, in W.P. No. 689/1999, for petitioners.
Niranjan S. Parab, in W.P. No. 1771/2000, for petitioner.
M.L. Upadhyay, in W.P. No. 1241/2000, for petitioner.
Dhanesh R. Shah, in W.P. No. 1766/2000, for petitioners.
Mrs. Achala Saxena, in W.P. No. 1790/2000 along with Notice of Motion No. 242/2000, for petitioners.
M.V. Bhat, in W.P. No. 1211/2000, for petitioners.
M.V. Holamagi, in W.P. No. 1802/2000, for petitioners.
Abhay S. Oka with Vinod N. Singh, in W.P. No. 1119/2000 with Notice of Motion No. 167 of 2001 and Notice of Motion No. 280/2003, for petitioners.
C.J. Sawant, S.C. with R.M. Sawant, G.P. with K.R. Belosey, A.G.P., in W.P. No. 694/2003, in W.P. No. 1119/2000 with Notice of Motion No. 167/2001 Notice of Motion No. 280/2003, for State.
O.P. Singh, Notice of Motion No. 410/2000 in W.P. No. 1999/2000, petitioner.
M.V. Dmello, in W.P. No. 1126/2000, for petitioners.
R.M. Sawant, G.P. with P.G. Lad. A.G.P., in W.P. No. 6942/2001, for State.
Ms. Rajani Iyer with P.N. Modi i/b. Kishore D. Abichandani, in W.P. No. 6942/2001, for respondent No. 4.
Wild Life (Protection) Act, 1972 - Section 35 - Compliance of direction of Court in acquisition of land. - Certain consent terms between some other petitioners were filed but are not binding on present petitioners. Though there has not been a strict compliance with Court directions yet when matter is settled as per consent terms filed between concerned parties, Court is no more res integra.
Wild Life (Protection) Act, 1972 - Section 35 - Acquisition of land, purpose of, whether public. - Though there has not been a strict compliance with the direction but the matter having been settled as per consent terms filed between the parties earlier and present petitioners being stranger to those proceedings and having no proof of any legal title to the land cannot agitate or challenge the terms.
Wild Life (Protection) Act, 1972 - Section 35 - Validity of notification thereunder. - There is distinction between acquisition under Land Acquisition Act or acquisition under Wild Life Act, whereas acquisition under the Land Acquisition Act can be for a public processes, the acquisition under Wild Life Act must be for purposes specified under said Act.
Wild Life (Protection) Act, 1972 - Section 32 - Disturbance in rightful possession. - A person to invoke the principle of possession has to show that prima facie he was in rightful possession of the property. A person shown to be in unlawful possession of the land cannot invoke the said principle or say that he cannot be dispossessed.
Specific Relief Act, 1963 - Sections 5 and 6 - Invoking principle of possession. - To invoke the principle, a person has to show that prima facie he was in rightful possession of the property. A person shown to be in unlawful possession of the land cannot invoke the said principle or say that he cannot be dispossessed.
Land Acquisition Act, 1894- Sections 4 and 6 - Encroach- ment of public land, acquisition of such land. - There is distinction between acquisition under L.A. Act and acquisition under Wild Life Act. Under Section 4 of L.A. Act it is for public purposes and under Wild Life Act it is for specified purpose as shown in the Act only.
Per THAKKER C.K., C.J.:---In all these petitions, common questions of fact and law have been involved. It is, therefore, appropriate to deal with and decide all the petitions by a common judgment.
2. To appreciate the controversy raised in various petitions, few facts in the first matter, i.e. Writ Petition No. 305 of 1995, may now be stated.
3. The said petition is filed by Bombay Environmental Action Group, for an appropriate writ, direction or order directing authorities of the State Government as well as the Central Government to remove forthwith respondent Nos. 7 and 8 and other encroachers from the National Park and re-locate them in non-forest areas by demolishing all unauthorised and illegal structures from National Park. A prayer is also sought directing the respondents to take all necessary and precautionary steps, including construction of a boundary wall to prevent further encroachment and unauthorised structure in the said park. It is prayed that respondents be permanently restrained from providing encroachers any amenities and regularising in any manner encroachment and unauthorised structures in National Park. Legality and validity of the order dated 12th February, 1997 by which quarrying licence was granted in favour of respondents Nos. 7 and 8 is also questioned.
4. Petitioner No. 1 is a society registered under the Societies Registration Act, 1860, whose aims and objects are, inter alia, to look after environment in all its aspects. Petitioner No. 2 is the Chairman of petitioner No. 1, who is a citizen of India and has been carrying on such activities in various parts of India, and in particular, in the State of Maharashtra since many years. Respondent No. 1 is Deputy Conservator of Forests, Sanjay Gandhi National Park (""SGNP"" for short). Respondent No. 2 is the Conservator of Forest (Wild Life), SGNP and is in charge of National Parks and Wild Life Sanctuaries in the western region of the State of Maharashtra. Respondent No. 3, State Wild Life Advisory Board, is a body constituted under the Wild Life (Protection) Act, 1972, for advising the State Government under the Act. Respondent Nos. 7 and 8 are some of the persons who have illegally encroached and have made unauthorised structures and/or constructions on land of SGNP. They were, therefore, joined as party respondents in their individual as well as representative capacity.
5. It is stated by this petitioners that the petition has been filed in public interest, challenging illegal encroachments and unauthorised structures which were constantly increasing in the area of SGNP. According to the petitioners, after the announcement of election in December, 1994, there had been a sudden spurt in the number of encroachments which had been, encouraged by political parties. Illegal encroachments and unauthorised constructions had ecologically disastrous effect which had led to massive deforestation. It had been proved a threat to the green oasis to prevent it from performing its dual role as ""lungs and the watersource of the teeming metropolis of Bombay"". According to the petitioners, over 200 hectares of land worth rupees one thousand crores had been swallowed by encroachers and about 50,000 illegal and unauthorised structures existed within the area.
SANJAY GANDHI NATIONAL PARK: ""JEWEL IN MUMBAIS CROWN"".
6. The petitioners have stated that in the year 1945, the erstwhile Government of Bombay owned nearly 47 sq.kms. of land. Tulsi and Vihar lake catchment areas having about 10 sq.kms. were also vested in the Government and under the control of Forest Department. Moreover, about 20 sq.kms. of land, popularly known as ""Krishnagiri Upwan"", was transferred to forest department in 1969. About 10 sq.kms. of land of Thane village and 15 sq.mts. of land of private forests was acquired in 1974-75. All the above said areas formed SGNP comprising of more than 100 sq.kms. SGNP is partly situate in Thane and partly in Bombay Suburban District. It extends over more
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