Dismissed

Kanjibhai Kalabhai Bhetariya v. Union of India

Gujarat HC18 Feb 2020WPPIL/258/2017

Case brief

AI extract

What is this about?

The Court dismissed a PIL challenging the State Government's permission to construct the Udankhatola Aerial Ropeway at Girnar Wildlife Sanctuary. The Bench held that the project, approved conditionally by the National Board for Wildlife and the Supreme Court, adequately addressed vulture concerns, finding the petition devoid of merit.

What did the court decide?

The Public Interest Litigation seeking to quash permissions regarding the Aerial Ropeway was dismissed with no order as to costs.

Kanjibhai Kalabhai Bhetariya Vs Union of India — Environment and Pollution | Gujarat HC (2020)

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C/WPPIL/258/2017 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/WRIT PETITION (PIL) NO. 258 of 2017

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KANJIBHAI KALABHAI BHETARIYA

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Versus UNION OF INDIA & 4 other(s)

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Appearance:

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MR.NANDISH H THACKAR(7008) for the Applicant(s) No. 1 MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR JK SHAH, AGP for the Opponent(s) No. 2

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MR KSHITIJ AMIN, FOR MR DEVANG VYAS ASSISTANT SOLICITOR GENERAL for the Opponent No. 1

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH and HONOURABLE MR.JUSTICE ASHUTOSH J. SHASTRI

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Date : 18/02/2020

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ORAL ORDER (PER : HONOURABLE MR.JUSTICE ASHUTOSH J. SHASTRI)

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Present Public Interest Litigation has been filed by the petitioner claiming to be a public spirited citizen against the permission, which has been granted to construct “Udankhatola” Aerial Ropeway at Mount Girnar and by raising multiple contentions, following reliefs have been prayed for, which read as under:

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“12.(A) This Hon'ble Court may be pleased to issue an appropriate writ, order or direction quashing and setting aside the permissions dated 09.09.2016 and 23.12.2015 granted under Section 29 of the Wildlife (Protection) Act, 1972 1) by respondents herein to the respondent No.5;

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(B) Pending hearing and final disposal of the Petition, Your Lordships be pleased to stay further execution,

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operation or implementation of the permissions dated 09.09.2016 and 23.12.2015 granted under Section 29 of the Wildlife (Protection) Act, 1972 1) by Respondents herein to the respondent No.5;

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(C) Pending hearing and final disposal of the Petition, Your Lordships may be pleased to appoint any independent expert committee verify whether the project sanctioned by the respondents is feasible and also to verify whether the Environment Impact Assessment is carried out in its true perspective, in the interest of Justice;

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(D) This Hon'ble Court may be pleased to pass such other and further order in the interest of justice that may be deemed fit in the facts and circumstances of the case.”

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For claiming and pressing these reliefs, it has been asserted that Girnar Wildlife Sanctuary is one of the richest areas in India and Girnar forest has highest concentration of Lions and Leopards in India. Girnar is one of the most endangered forests, as it is touching to the Junagadh City. The Girnar forest is categorized as Southern Tropical Dry Deciduous and Dry Teak Forest, which supports rich plant biodiversity, a wide variety of mammals, reptiles, insects and avifauna and is in a catchment of important rivers like Sonrakh, Gudajali, Loi and thus, plays important role in recharging the water table of Junagadh. The extreme vicinity of the Sanctuary to human habitation, on-going developmental activities, industrialization and mining activities around the Sanctuary, necessitate the

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C/WPPIL/258/2017 ORDER

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requirement of proper safeguards and control over such activities in view of long term wildlife conservation. By detailing out various particulars in the petition, a grievance is raised about the construction of Aerial Ropeway project at Mount Girnar by the respondents precisely by respondent No.5. On account of this, setting up of construction, what would be the effect is enlisted in the memo of petition and by mentioning the same, a contention is raised in the petition that there are several issues, on account of which, the construction is not in the interest of Girnal Wildlife Sanctuary.

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It has been asserted that the Chief Conservator of Forests, Junagadh, at the relevant point of time, has given a negative response / opinion on various aspects, which is placed on record of the petition at page 178. It has further been asserted that even in the 16^th meeting of the Standing Committee of National Board for Wildlife (hereinafter referred to as the “NBWL”) dated 16.09.2009, one Dr. Asad Rahmani informed in the meeting that the EIA report submitted before the Board has several factual errors particularly with regard to faunal diversity of the area. It was also observed that there were representations against the negative impact of the project on vulture nesting sites since 9^th

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and 10^th Tower stage where several vultures are occupying the place. Therefore, preserving such vultures being part of the Wildlife, due consideration ought to have been given. Even the Chairman of the Board voluntarily ought to have taken a site visit along with other expertise i.e. Dr. Nita Shah, Dr. Divyabhanusinh Chavda with Dr. Asad Rahmani and by pointing out such details from page 87, a contention is raised that this project is not at all in the interest of all. A further assertion has also been made to seek the relief contained in the petition by referring to particulars reflecting from 21^st and 22^nd meetings of the Standing Committee of NBWL. Additionally, even the opinion of the Parliamentary Committee dated 31.03.2017 was also not in favour of the project. Resultantly, the reliefs prayed for in the petition, deserve to be granted. An attention is drawn to the further facts, how the environmental clearance dated 09.09.2016 is contrary to law and as such, by narrating all these circumstances, the present public spirited citizen has brought the petition before this Court.

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We have found that this petition appears to have been submitted in the month of November 2017 and after several adjournments, to obtain the necessary instructions, time was

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granted, in the month of December 2017 and then it was categorically found by this Court, in the month of May 2019, that during pendency of the petition, the construction of Ropeway has already been commenced and, therefore, no interim relief was granted. But then, it appears that after series of adjournments, from time to time, the matter has ultimately come up for consideration before us in the month of February 2020.

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We have heard Shri Nandish H. Thackar, learned counsel for the petitioner, Shri Kamal Trivedi, learned Advocate General assisted by Shri J. K. Shah, learned Assistant Government Pleader for the State and Shri Kshitij Amin, learned counsel for Shri Devang Vyas, learned Assistant Solicitor General for Union of India.

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Shri Nandish H. Thackar, learned counsel for the petitioner has vehemently contended that the permission, which has been granted to construct the Ropeway / Aerial way popularly known as “Udankhatola” is absolutely illegal and not in consonance with object for which, Wildlife (Protection) Act, 1971 (hereinafter referred as to the “Act”) is enacted. This permission, which has been granted, is contrary to Section 29 of the Act. Further, it

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has been contended that though several negative opinions were on the record, still however, the permission is granted by the authority and the construction is carried on. It has been further submitted that one of the long-billed vultures which is scarcely in existence now-a-days is very much stationed at a place where 9^th and 10^th Tower of this Aerial view is set up by the authorities. As such, if this Aerial road is allowed to be put to use, the existence of these vultures will be at stake since the same being a vulture nesting site.

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6.1 Shri Thackar, learned counsel for the petitioner has further submitted that there are series of negative opinions about setting up of this project and according to him, not a single favourable opinion is available on record. Still the respondent - authorities are bent upon to use this place as a place for Ropeway. Apart from this, according to Shri Thackar, learned counsel for the petitioner, the permission, which has been granted, is not based upon the correct analysis of facts. On the contrary, the environmental clearance certificate has been granted erroneously and simply because another alternate way is not found out, the said circumstance is not to be utilized to grant permission. Here is the case, in which, against several odds, instead of

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reconsidering the setting up of project, the authorities have insisted upon the project at this site only. Such action is neither germane to constitutional principles nor in the interest of overall environment of the area.

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6.2 To substantiate his contention, Shri Thackar, learned counsel for the petitioner has referred to certain documents, which are attached to the petition, precisely, the particulars from the meetings of the Standing Committee, which took place of NBWL and by narrating this, the counsel has insisted to grant the relief as prayed for. It has been contended that even Parliamentary Committee also found no favour with the project, as the same is likely to affect the vulture nesting and breeding and such recommendations to review the matter were submitted in the month of March 2017. Despite all these negative circumstances, the authorities have shown an audacity to set up Aerial way which is quite contrary to the object for which Act is in enacted.

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6.3 To strengthen his submission, learned counsel has referred to a decision delivered by the Apex Court in the case of Essar

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Oil Ltd. versus Halar Utkarsh Samiti and others reported in

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(2004) 2 SCC 392 , and thereby, has reiterated that in a

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situation like this, the relief contained in the petition, deserves to be granted. No other submissions have been made.

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To deal with and counter the stand taken by Shri Thackar, learned counsel for the petitioner, Shri Kamal Trivedi, learned Advocate General assisted by Shri J. K. Shah, learned Assistant Government Pleader for the State, has vehemently submitted that this petition is not a genuine Public Interest Litigation. Had it been so, this very petitioner would not have dragged on the petition right from 2017 and waited for a substantial portion of the construction to be over. The petition is pressed at a stage where the last phase of the project is going on and practically, it is about to be inaugurated within a couple of months. So, such a callous approach shown by the petitioner itself is raising a serious issue about genuineness of petition. Apart from that, it has been submitted by Shri Trivedi, learned Advocate General that as contended by the petitioner that in the series of meetings, there was negative opinion of NBWL, but the petitioner ought to have pointed out candidly to the Court that it is this board upon whose recommendation and permission, this construction is substantially over. On the contrary, according to Shri Trivedi, learned Advocate General, it is only after

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conducting an in-depth study of the environmental issues that this project has been finalized.

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7.1 Shri Trivedi, learned Advocate General has also referred to the documents, which are attached to the proceedings in the form of affidavits and has contended that it is not correct that this project will have any adverse impact on any of the environmental issues. After considering various circumstances and after referring to relevant issues regarding environment, wildlife and preservation etc., the permission has been accorded. This permission, which has been the subject matter of challenge in the present Public Interest Litigation, is a detailed order, the condition contained in the said permission in close conformity with the provisions of the Act, has also clearly taken care of the apprehension, which has been voiced out about vultures nesting sites. Condition No.10 has categorically taken care of such apprehension since 9^th and 10^th Tower of Ropeway will be set up at an increased height, which may not disturb the vultures nesting sites located in the area and as such, it is not correct to contend that any adverse impact will be there on account of such setting up of project.

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7.2 Shri Trivedi, learned Advocate General after referring to

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various documents, attached to the petition compilation, has detailed out the steps, which have been taken preceding grant of permission and has also drawn our attention to the detailed affidavit-in-reply, which has been filed by the Union of India from page 192 onwards and also has taken the Court through the details of affidavit-in-reply filed by respondent No.4 namely the Chief Conservator of Forests and after referring to such detailed contents of affidavit, a submission is made that this is nothing but an attempt to thwart the project or to delay the same and as such since there was a composite study of every aspect before setting up of such project, there is no merit in the Writ Public Interest Litigation. Resultantly, the same be dismissed. By pointing out clearly and with emphasis, Shri Trivedi, learned Advocate General has submitted that it is the board itself which after detailed study has considered every aspects and gave a recommendation based upon which the permission is granted on 23.12.2015. What kind of detailed study is undertaken on various issues has been mentioned before the Court from the reference column of the said permission, and thereby, has contended that the petition deserves to be dismissed.

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Mr. Kshitij Amin, learned counsel for Mr. Devang Vyas,

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learned Assistant Solicitor General appearing on behalf Union of India has also added to the submissions of learned Advocate General that detailed study has been undertaken before setting up the project and grant of permission by the authorities is a conditional permission which conditions are assured to be fulfilled scrupulously and as such, the permission cannot said to be not in consonance with the provisions of the Act, precisely, Section 29. Hence, the petition being meritless, deserves to be dismissed.

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Having heard the learned counsel appearing for the respective parties and having gone through the contents of the petition and the documents attached to it, before concluding the proceedings, following circumstances are not possible to be unnoticed by us:

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The present public spirited person has, in substance, raised his voice about environmental issue and the issue related to protection of habitation of vultures in the area. While examining these submissions, we have even independently gone through the record with a view to see that such issues may not be sidelined or sacrificed and as such, taking the record as it is, we have found that this project of ropeway has reached at its

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final stage and this petition does not appear to have been seriously processed by the petitioner right from its presentation. The docket-sheet of this petition clearly suggests series of adjournments without any serious concern by this public spirited litigant. On the contrary, the Division Bench, on earlier occasion, has clearly noted all the stages of the project and keeping in view the overall circumstances, did not grant interim relief in the month of May, 2019. Apart from that, a clear assertion has come out from the affidavit-in-reply filed by the respondent authorities which indicates that Environment (Protection) Act, 1986 and the related Notification dated 14.9.2006 has prescribed that no projects / activities or the expansion or the modernization of existing projects / activities listed in schedule attached to the notification, shall be undertaken in any part of the country without prior approval of the Central Authority or State Level Environment Impact Assessment Authority. The said issue is also considered by the authority. The projects are classified as falling under separate categories in the schedule attached to the notification. The project on hand would fall under the concerned category in the schedule. Further, in comparison to all projects and activities falling under another Category-B to the schedule which includes

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expansion and modernization of existing projects, proper steps deserve to be taken in the manner suggested by the Notification dated 14.9.2006 keeping in view the assertion made in Para.2, Sub-Para (II) or change in project mix as specified in Para.2, Sub-para (III) to exclude those which fulfill general conditions stipulated in the schedule requiring prior environmental clearance either from the State Government or the Union Territory Environment Impact Assessment Authority. The aerial ropeway is covered under Category-B of Item No.7(g) of schedule to the EIA Notification, 2006 and this Notification, 2006 has been amended by concerned Ministry vide its Notification No.S.O.(E) 195 dated 1.12.2009 and the ropeway projects is mentioned in this notification in Category-A. According to the State authority, the respondents have followed the due procedure of prevalent rules. It further appears that the environmental clearance to this project in question has been accorded. Such permission vide letter dated 9.9.2016 for construction of aerial ropeway (Udan Khatola) in favour of M/s.Usha Breco Limited, was subject to various safeguards and conditions which are provided under the provisions of EIA Notification, 2006.

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It appears from the stand taken by the respondent

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authorities that even this issue of life to billed vultures has been examined by the appropriate committee and it was decided to increase the height of the towers of the ropeway. Just to facilitate and monitor the movement of vultures, arrangements like high resolution camera and cafeteria for supplementary food to vultures are made. The authority has discussed the said issue at length in the 16^th meeting of the Standing Committee of NBWL held on 16.9.2009. A further deliberation has also taken place in the next meeting held on 25.4.2011 which is 22^nd meeting of the Standing Committee and after taking into consideration even the dissenting note, a detailed deliberation appears to have taken place and the authority while granting the permission has imposed certain conditions to be observed to take care of the said possible apprehension shown by the petitioner. So, it is not possible to digest that before finalizing and substantially completing the project, the authority has shown no due concern and has evasively processed to accord sanction. Expert Committee consisting of several members appears to have clearly deliberated on the said apprehension voiced by the petitioner and then, found that since there is no alignment possible, the decision was taken to accord permission with the conditions. In fact, we have seen from the record that pursuant to the order of

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the Apex Court dated 5.10.2015, approval has been granted by CSLC to this project vide order dated 23.12.2015 and keeping this very issue regarding the Wild Life (Protection) Act in mind, specific conditions have been directed to be observed. The detailed order has been passed on 23.12.2015 keeping in mind the relevant provision of the Wild Life (Protection) Act. Since this exercise has already been undertaken, we are satisfied that the apprehension and the alleged violation of environmental issues have been taken care of by the authority. Even the experts and their reports have been duly examined which can be seen from the report dated 31.3.2017 of 30^th Preliminary Committee Report. So, it is not possible to conclude that the authority has not taken care of and just went on with the project as has been submitted by the writ petitioner. Even from a perusal of the detailed explanation submitted by the deponent of affidavit-inreply dated 26.6.2019 along with attached relevant records, it would appear that appropriate safeguards have been provided and as such, the submissions which have been made as if the authority has not considered anything, are not possible to be accepted by us.

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The main cause which was projected empathetically before us is with regard to the existence of vulture in the area. But, as

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said earlier, to take care of such issue, the detailed observations have been made with appropriate conditions while approving the project on 23.12.2015. The conditions engrafted in an order dated 23.12.2015 suggest that even existence of vulture in the area, has been properly taken care of.

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The additional affidavit which has been filed by respondent No.4 has in extenso clarified the steps which have been taken. The assertion which has been reflecting from Para.3.3 onwards since relevant to the issue, is reproduced hereunder :

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“3.3 Thereafter, the Hon’ble Supreme Court also, while disposing of the I.A. No.3118-3120 of 2011 vide order dated 5.10.2015, filed by the M/s. Usha Breco Ltd. for direction to the Central Empowered Committee, observed that :

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“All matters for grant permissions for implementation of projects in areas falling in National parks / sanctuaries including rationalization of boundaries etc. will be considered by the Standing Committee of the National Board for Wildlife (“NBWL”) on its own merits and in conformity with the orders and directions passed by this Court from time to time, i.e. on 14.2.2000, 16.12.2002, 13.11.2000, 9.5.2002, 25.11.2005 and 14.9.2007 and other subsequent clarificatory orders / judgment(s) passed by this Court including the Goa Foundation Judgment, i.e. Goa Foundation v. Union of India & Ors., reported in (2014) 6 SCC 590.

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We request the NBWL to furnish a cop of the orders passed by it within 30 days’ time to the C.E.C. The C.E.C. is at liberty, if, for any reason, they are aggrieved by the decision of the Standing Committee of

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NBWL to approach this Court by filing an appropriate petition / application. In all those matters where there is already decision of the Standing Committee for the NBWL shall abide the parties with all the conditions imposed therein.

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If any party is aggrieved by the decision of the Standing Committee of the NBWL, they are at liberty to approach an appropriate forum for appropriate relief(s).”

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In the aforesaid order, it was expressly observed that, in matters where decision of the Standing Committee of Nation Board of Wild Life has already been taken, the same decision shall be binding on the parties. In the present case, the Standing Committee of Nation Board of Wild Life had recommended the said project, vide letter dated 10.5.2011. Therefore, as per the aforementioned order of the Hon’ble Supreme Court, the same decision is binding on all the parties.

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3.4 However, to avoid ambiguity at later stage, the Chief Wild Life Warden, Gujarat, wrote a letter dated 17.11.2015 to Member Secretary, Central Empowered Committee, seeking direction to permit M/s. Usha Breco Ltd., to construct, install, operate and maintain the Aerial Ropeway at Girnar. In response to the said letter, the Member Secretary of the Central Empowered Committee, informed the Chief Wild Life Warden, Gujarat vide letter dated 21.12.2015, that the action may be taken in conformity with the aforesaid order of the Hon’ble Supreme Court. Annexed hereto and collectively marked as Annexure R VIII Colly are copies of (I) the letter dated 17.11.2015, sent by the Chief Wild Life Warden, Gujarat, to Member Secretary, Central Empowered Committee; and (ii) Reply dated 21.12.2015, by the Member Secretary of the Central Empowered Committee, to the Chief Wild Life Warden.

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3.5 In view of the aforementioned order of the Hon’ble Supreme Court and letter of the Member Secretary of the Central Empowered Committee, the Chief Wild Life Warden granted permission under Section 29 of the Wild Life (Protection) Act,1972, for use of 7.2871 ha. of land in

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Girnar Sanctuary, for construction of ropeway, by Usha Breco Limited, on 23.12.2015. While granting the permission, it was expressly observed by the Chief Wild Life Warden, that a letter in relation to the permission was sent to the Member Secretary, Central Empowered Committee and that the Member Secretary, directed telephonically to implement the order of the Hon’ble Supreme Court and issue permission, based on the decision taken on merit by the Standing Committee of NBWL in all the pending cases.

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3.6. Pursuant to the permission under Section 29, the Central Government has also granted Environment Clearance for the construction of Aerial Ropeway “Udankhatola” in favour of Usha Breco Limited, on 9.9.2016. Further, “Consent to Establish”, as required under Section 25 of the Water Act, 1974 and Section 21 of the Air Act, 1981, was granted by the Gujarat Pollution Control Board, on 27.10.2016.

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In view of the Chief Wild Life Warden’s permission dated 23.12.2015, which is granted in conformity with the order of the Hon’ble Supreme Court and the procedure prescribed under Section 29 of the Wild Life (Protection) Act, 1972, the contentions raised by the petitioner with regard to not following the prescribed procedure and permission granted under Section 29 being null and void, do not survive and the captioned petition being devoid of any substance, deserves to be dismissed.”

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From the aforesaid stand which has been taken by the authority, we are of the view that the authority has taken proper care of these issues which can be even seen from the communication dated 9.9.2016 reflecting on Page-343. The learned Advocate General has assured on behalf of the authority that proper care would be taken to see that all these general conditions which are to be observed, will be properly monitored

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by the concerned authority.

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A fact is also visible from an earlier affidavit which has been filed by the respondent No.4 reflecting on Page-265 onwards of the petition compilation clearly asserting that pursuant to the order passed by the Apex Court on 5.10.2015, a serious concern is also kept in mind and in due deference thereof, while approving the project, CWLC has passed an order on 23.12.2015 incorporating certain conditions in the interest and betterment of wildlife existing in the area. Para.8 reflecting on Page-287 onwards shows that wildlife issue has also been taken care of minutely. Said Paras.8 and 9 deserve to be reproduced hereinafter :

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“8. In light of aforesaid facts and circumstances, I humbly say and submit that the apprehension expressed by the petitioner as regards violation of provisions of Wild Life (Protection) Act, is misconceived. The Girnar ropeway project was approved by the committee of technical experts after considering the pros and cons of the project and it’s effect on the environment and wild life. The committee / authority with laudable object to balance the development / divergent uses of forest / sanctuary land as against conservation of wild life had imposed certain conditions taking into account conservation of environment, wild life and natural habitat of the Girnar sanctuary. It is further humbly stated and submitted that the CWLW, while approving the project on 23.12.2015, has therefore annexed the following conditions in the interest of wildlife, which reads as under :

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“Annual Monitoring of the vultures in the area and

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examining the impact on the ropeway and associated activities for vulture’s presence etc. shall be done by User Agency.

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A camera of high resolution will be placed on the 9^th tower by user agency to monitor movement of vultures and if required, movement of cabins of the ropeway will be regulated in such way as to avoid any accidental collision of vultures with cabin of ropeway.

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The height of the 9^th and 10^th tower of ropeway will be increased to avoid disturbance to the vulture nesting sites located in the area.

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A cafeteria for vultures will be constructed at an appropriate location to be decided in consultation with the experts to provide for supplemental food to the vulture apart from attempting to divert the movement of vultures away from the ropeway.

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A cess of Rs.5 per ticket of 2% of the ticket turnover revenue, whichever is higher, will be imposed. This cess amount will be given to the Gir Lion Conservation society for conservation related activities in and around the Girnar Wildlife Sanctuary with a focus on Longbilled vultures.

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As per the nature of the long-billed vultures this timing of the operation of ropeway should be decided on conservation with the Chief Wildlife Warden and the NGO’s working on the area.

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Apart from the conditions annexed along with the permission, various other aspects are taken into consideration to immense any damage to the sanctuary. For which the Government of Gujarat has constituted a Monitoring Committee for strict implementation of the project as per the permission along with conditions annexed....”

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The explanation and the steps which are initiated by the

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authority would suggest that the cause which has been tried to be generated and agitated, is already kept by the authority in mind satisfactorily. Hence, we see no reason to entertain this Public Interest Litigation in the present form. Since monitoring of strict compliance of conditions is also assured by the State authority, we are satisfied that apprehension voiced out by the petitioner is out of place. Accordingly, the present Public Interest Litigation does not deserve to be entertained any further. Accordingly, the same is dismissed hereby, with no order as to costs.

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(VIKRAM NATH, CJ)

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(ASHUTOSH J. SHASTRI, J)

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V.J. SATWARA

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Kanjibhai Kalabhai Bhetariya v. Union of India

Case brief

What is this about?

What did the court decide?

Kanjibhai Kalabhai Bhetariya v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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