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Judgment
The above writ petitions are filed by four petitioners who claim to be agriculturists residing in Pollachi and Udumalpet taluks. According to them,
they are rearing cattle to run their livelihood and in the absence of pasture lands in and around their taluk, they used to send their cattle to Anamalai
mountain range for grazing. They employ Adivasis for that purpose. The cattle are kept penned on the mountain ranges, which are declared as
reserve forest under the Tamil Nadu Forest Act. The cattle cannot be brought to their residence everyday from the grazing land since it would
involve a distance of about 40 miles. They have been granted licence for grazing. Whileso, all of a sudden, in the year 1990, the Forest Range
Officer prevented them from keeping the cattle overnight on the mountains. Hence they challenged the action of the Forest Range Officer, and this
Court, in W.P. No. 17474 of 1990, directed the respondents to consider the representations of the petitioners and pass appropriate orders. The
first respondent heard the petitioner''s representations and passed an order dated 28.4.1999 wherein he held that penning of cattle inside the Indira
Gandhi Wild Life Sanctuary is not permitted as per the Wild Life (Protection ) Act, 1972. However, he permitted the grazing of the cattle without
penning. The writ petition is against this order.
According to the learned counsel for the petitioners; the order of the Wild Life Warden is violative of their fundamental right which has been
enjoyed by them from time immemorial and that he has no jurisdiction to pass such an order. On merits, it is submitted that they would not cause
any damage to the flora and fauna of the sanctuary. It is further submitted that the cattle cannot be taken to their residence or the agricultural field
from the grazing ground everyday.
Time has been to the respondents to enable them to file counter on several dates, but the learned Government Pleader is not in a position to file
a counter. However, he argued the matter on instructions in extenso.
I have heard the counsel for the petitioners and the learned A.G.P. and considered the matter carefully.
The area over which the petitioners seek the right of penning the cattle, namely Anamalai mountain range is a sanctuary called indira Gandhi
Wild Life sanctuary. The parliament has enacted the Wild Life (Protection) Act, 1972 (Act 53 of 1972), hereinafter reffered to as the Act, which
provides for the protection of wild animals and birds and for matters connected therewith or ancillary or incidental there to. Sanctuary as been
defined u/s 26 of the Act as follows:
Sanctuary mean an area declared, whether u/s 26A or Section 38 or deemed under sub-section (3) of Section 44 or be declared as wild life
sanctuary.
Apart from this, Section 18 also enables the State Government, by notification, to declare an area as sanctuary for the purpose of protecting,
propagating or developing wild life or its environment. It is not in dispute that the Anamalai Mountain range, in which the petitioners seek a right to
graze and penn their cattle is an area declared to be a sanctuary. Therefore, it follows that the petitioners are bound by the restriction and control
that could be made under the Act in reference to the sanctuaries.
Section 27 of the Act deals with reference on entry in the sanctuary. Under this provision, there is a bar for entry. A specific permission has to
be obtained from the Chief Wild Life Warden or authorised officer to reside within the sanctuary. The only exception is for a person having a right
over immovable property within the limits of the sanctuary and a person passing through a public highway through the sanctuary. Section 28 deals
with the grant of permit to enter or reside for the purpose like investigation or study, photograph, research and tourism. Section 29 prohibits
destruction etc. of wild like in the sanctuary. u/s 33, the Chief Wild Life Warden is the authority who shall control, manage and maintain all
sanctuaries. The Wild Life (Transit) (Tamil Nadu) Rules, 1991 sets out in the annexure, the jurisdiction of Forest Officers. As per this rule, the
Chief Wild Life Warden has got jurisdiction over the whole of the State of Tamil Nadu. The Wild Life Wardens in the respective areas have got
jurisdiction over the concerned areas.
From an analysis of the above provisions, it is clear that there is no provision for permitting grazing or penning of the animals grazing within the
sanctuary. Even the permit which enables persons to enter, can only be under Sections 12 and 28. The permits could be issued only for specific
purposes like education, research, tourisrn etc., u/s 33, which is relied upon by the learned counsel for the petitioners, the Chief Wild Life Warden
is empowered to regulate, control or prohibit, in keeping with the interests of wild life, grazing or movement of livestock. The impugned order is
passed by the Wild Life Warden as per the directions contained in W.P.No. 17474 of 1990, whereby the respondents namely the Chief
Conservator of Forests, District Forest Officer, Coimbatore and the Forest Range Officer, Udumalpet and Anamalai were directed to dispose of
the representation of the petitioners. In obedience to the direction, the Wild Life Warden had issued notice for an enquiry dated 16.2.1999. The
petitioners have submitted their representation on 23.2.1999. In their detailed written representation, no grounds were raised on the authority of
the Wild Life Warden holding an enquiry on their representation. Since Section 27 empowers the Chief Wild Life Warden or the authorised officer
to issue permit to reside within the limits of the sanctuary, the enquiry was conducted by the authorised officer as per the rules. Over the area of
Coimbatore, Periyar, Salem, Quaid-Milleth Districts, the Wild Life Warden, Pollachi is the authorised officer. Therefore, the present contention
that the Wild Life Warden has no jurisdiction to pass order cannot be sustained.
Coming to the merits, it has to seen that firstly, there is no power at all under the Act to permit grazing of cattle and permanently penning the
cattle within the sanctuary. Going by the purpose and scheme of the Act, it is clear that there is no scope for domestic cattle to be penned within a
forest sanctuary. On the other hand; there are strict restrictions and prohibitions imposed on the movement and residence within the sanctuary.
Section 29 states that no person shall destroy, exploit or damage the habitat of any wild animal or deprive any wild animal of its habitat within the
sanctuary. If a permanent impounding of cattle or penning of cattle is permitted, it will lead to the damage or destruction of the habitat of the wild
animals. Therefore, in the absence of any provision which will enable the penning of the cattle, petitioners prayer cannot be granted. The only
provision available is a regulation for the grazing or movement of livestock. In this case, by the impugned order, petitioners are permitted grazing of
the cattle, but they are refused permission to permanently keep their cattle inside the sanctuary. Their case is that they are keeping their cattle 40
miles from their residence, which will mean deep inside the sanctuary, cannot be permitted, since that will be leading to the destruction of the
habitat of the wild animals.
Secondly, by the impugned order, the Wild Life Warden has stated that penning inside a sanctuary will have a detrimental effect and has been
totally banned. According to the officer, ""Penning not only increases biotic pressures on the forest, but it also deprives the wild life of its critical
habitat in terms of food, water and cover. Penning may also lead to increased conflict of domestic cattle with wild animals in the sanctuary limits."" It
is further stated, ""The grazing of cattle inside the sanctuary not only creates competition with wild like in terms of food scarce water resources, but
also leads to the compaction of soil by continued trampling and has an adverse effect on the forest regeneration and ultimately leading to the habitat
destruction and degradation. Domestic livestocks also act as carriers for any epidemic disease like Rinderpest, Foot and Mouth, Anthrax etc.,
which causes detrimental effect of wild like population, mainly Indian Gaur, and other ungulates etc."" Therefore, considering the fact that it is a
sanctuary; the primacy should be given to the importance of the living of the wild life and their habitat. Their food and resources cannot be deprived
of by domestic animals being permitted inside the sanctuary. The permanent penning of domestic animals will lead to compaction of soil and
spreading of disease to the wild life. Looked from the angle of wild life, the domestic cattle belonging to the petitioners have no right to interfere
with their freedom of movement and liberty, protected by a Parliamentary Act.
Coming to the right of the petitioners, which according to them is a customary right from time immemorial, their claim is that Adivasis are
engaged for looking after the cattle. According to them, the Government used to give permits called ''Patti Passes'' which is a permission to graze
cattle even before the constitution of the sanctuary. It is their further case that it will be practically not possible to get back the cattle to the villages,
which will involve a distance of walking to and fro for 40 miles. Petitioners have not established that they had a customary right to penn the cattle
within the area of Anamalai mountain range. Secondly, petitioners have no fundamental right guaranteed in Part- III. Though they have not stated
as to which of their fundamental right is sought to be violated, it has to be inferred that they refer to their freedom to carry on the occupation. But,
this freedom is subject to a reasonable restriction made in the interest of general public. Therefore, assuming for the sake of argument that, the
petitioners have got a fundamental freedom of an occupation of grazing inside the Anamalai mountain range by virtue of the customary right in
existence prior to the coming into force of the Constitution. That fundamental right is subject to a reasonable restriction and that can be imposed.
The Wild Life (Protection) Act is an Act which provides for the protection of wild animals and birds and in order to protect them, restrictions and
prohibitions have been imposed, which are reasonable and can be imposed. As rightly contended the claim of the petitioners that Adivasis are
engaged and the cattle are being taken for a distance of 40 miles daily are totally unrealistic and without any evidence, record or basis.
Referring to the policy and object of wild life laws, the Supreme Court, instate of Bihar v. Murad Ail Khan, 1998 (4) S.C.C. 655, observed as
follows:
The policy and object of the wild life laws have a long history and are the result of an increasing awareness of the compelling need to restore the
serious ecological imbalances introduced by the depredations inflicted on nature by man. The state to which the ecological imbalances and the
consequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken, the damage might
become irreversible. The preservation of the fauna and flora, some species of which are getting extinct at an alarming rate, has been a great and
urgent necessity for the survival of humanity and these laws reflect a last ditch battle for the restoration, in pan at least, a grae situation emerging
from a long history of callous insenshiveness to the enormity of the risks to mankind that go with the deterioration of environment. The tragedy of
the predicament of the civilised man is that ""Every source from which man has increased his power on earth has been used to diminish the
prospects of his successors. All his progress is being made at the expense of damage to the environment which he cannot repair and cannot
foresee."" In his foreword to International Wild Life law, H.R.H. Prince Philip, the Duke of Edinburgh said:
Many people seem to mink that the conservation of nature is simply a matter of being kind to animals and enjoying walks in the countryside. Sadly,
perhaps, it is a great deal more complicated than that.....
....As usual with all legal systems, the crucial requirement is for the terms of the conventions to be widely accepted and rapidly implemented.
Regretfully progress in this direction is proving disastrously slow .......
........ ........ ........
In the third century B.C.King Asoka issued a decree that ""has a particularly contemporary ring"" in the matter of preservation of wild life and
environment. Towards the end of his reign, he wrote:
Twenty-six years after my coronation. I declared that the following animals were not to be killed: parrots, mynas, the aruna, ruddy geese, wild
geese, the nandimukha, cranes, bats, queen ants, terrapins, boneless fish, rhinoceroses ...
and all quadrupeds which are not useful or edible ... Forests must not be burned. Environmentalists conception of the ecological balance in nature
is based on the fundamental concept that nature is ""a series of complex biotic communities of which a man is an inter dependant part"" and that it
should not be given to a part to trespass and diminish the whole. The largest single factor in the depletion of the wealth of animal life in nature has
been the ""civilised man"" operating directly through excessive commercial hunting or, more disastrously, indirectly through invading or destroying
natural habitats,
In Tarun Bharat Sangh, Alwar Vs. Union of India and others, , the Supreme Court held that it is of utmost importance that laws sought to be
effected enforced strictly. Under Article 43A of the Constitution of India, the State has an obligation to protect and improve the environment and
safeguard the forest and wild life of of the country. A fundamental duty is cast on every citizen under Article 51A(g) to protect and improve the
natural environment including forest and wild life. The Anamalai Range, Sanctuary is a protected area for wild life. There is absolutely no scope for
invading the said right. Assuming that there is any semblance of such right, it has to give way to the preservation and protection of forest and wild
life. Petitioners can always rear the cattle outside this Range, but not the protected wild animals. By such invasion, which is prohibited, it will not
only destroy the animal wild life, but ultimately result in the destruction of humanity. The Wild Life Act has to be strictly construed in favour of its
protection.
For the above reasons, I do not find any ground whatsoever to interfere with the impugned order. Hence, the ""writ petitions fail and they are
accordingly dismissed. Consequently, all the related W.M.Ps. are also dismissed.