Supreme Court of India
In Re : T.N. Godavarman Thirumulpad vs Union Of India on 6 March, 2024
Author: B.R. Gavai
Bench: Prashant Kumar Mishra, B.R. Gavai
2024 INSC 178
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. NO.20650 OF 2023
IN
WRIT PETITION (CIVIL) NO.202 OF 1995
IN RE:
T.N. GODAVARMAN THIRUMULPAD …PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. …RESPONDENT(S)
IN RE:
GAURAV KUMAR BANSAL …. APPLICANT(S)
INDEX
I. BACKGROUD Paras 1 to 3
II. SUBMISSIONS OF THE PARTIES Paras 4 to 7
III. STATUTORY PROVISIONS Paras 8 to 46
IV. GUIDELINES ISSUED BY VARIOUS Paras 47 to 67
AUTHORITIES
V. CONSIDERATION Paras 68 to 158
(a) Consideration as to whether Tiger Paras 78 to 103
Safaris and Zoos are on the same footing
or not.
(b) Whether establishment of a ‘Tiger Safari’ Paras 104 to
at Pakhrau is legal or not. 114
(c) Illegal construction and felling of trees Paras 115 to
132
(d) ‘Public Trust’ Doctrine Paras 133 to 138
(e)
Signature Not Verified
Digitally signed by
Concern of the CEC Paras 139 to 149
(f) Principle of Ecological Restitution Paras 150 to 158
Narendra Prasad
Date: 2024.03.06
11:40:59 IST
Reason:
VI. CONCLUSIONS Paras 159 to 163
1
ABBREVIATIONS
CBD : Convention on Biological Diversity, 1992
CBI : Central Bureau of Investigation
CEC : Central Empowered Committee
CZA : Central Zoo Authority
DFO : Divisional Forest Officer
ERC : Elephant Rehabilitation/Rescue Centres
ESZ : Eco Sensitive Zone
FAC : Forest Advisory Committee
FC : Forest Clearance
FC Act : Forest (Conservation) Act,1980
FSI : Forest Survey of India
HoFF : Head of Forest Forces
IFS : Indian Forest Service
IFSR : India State of Forest Report
MDF : Moderate Dense Forest
MoEF&CC : Ministry of Environment, Forest and
Climate Change
NPV : Net Present Value
NTCA : National Tiger Conservation Authority
OF : Open Forest
PCCF : Principal Chief Conservator of Forests
SC, NBWL : Standing Committee of National Board for
Wild Life
SOP : Standard Operating Procedure
sq.km. : square kilometer
TCP : Tiger Conservation Plan (“TCP
VDF : Very Dense Forest
WII : Wildlife Institute of India
WLP Act : Wild Life (Protection) Act, 1972
2
JUDGMENT
B.R. GAVAI, J.
“The tiger perishes without the forest and the forest
perishes without its tigers. Therefore, the tiger should stand
guard over the forest and the forest should protect all its
tigers.”
This is how the importance of the tigers in the ecosystem has
been succinctly described in ‘Mahabharta’. The existence of the
forest is necessary for the protection of tigers. In turn, if the tiger
is protected, the ecosystem which revolves around him is also
protected. The tiger represents the apex of the animal pyramid
and the protection of their habitat must be a priority. “A healthy
tiger population is an indicator of sustainable development in the
13 tiger range countries”1.
In spite of such an importance given to the tiger and many
statutory provisions enacted for the conservation and protection of
the tiger, the present case depicts a sorry state of affairs as to how
1
Midori Paxton
3
human greed has led to devastating one of the most celebrated
abodes of tigers i.e. the Corbett Tiger Reserve.
When we consider this issue, it will also be apposite to refer
to the restoration experiment at the Yellowstone National Park of
the United States of America.
The impact of the absence of carnivores in a forest and the
regenerative effect on their re-introduction was witnessed in the
recent past in the famous Yellowstone National Park.
Wolves were hunted down by the mankind and the last
recorded wolf in the park was shot down by a park ranger in the
year 1926. Resultantly, owing to lack of apex predators in the park,
the population of deer and other herbivores rose significantly.
Efforts made by humans to control the herbivore population
proved unsuccessful and resultantly these animals grazed away
the vegetation which had the cascading effect of soil erosion and
depletion of forest. As an ambitious restoration experiment, the
scientists re-introduced a pack of wolves in the Yellowstone
National Park in the year 1995.
Once the wolves arrived, even though few in number, the
same had remarkable effects. The obvious outcome of such
4
reintroduction was the reduction in the population of deer; but
even more significantly, the wolves changed the behaviour of the
deer which started avoiding certain parts of the park, particularly
the valleys and gorges. This resulted in regeneration of the flora of
the national park and an increase in the height of trees which
quintupled in mere six years. The valley sides quickly became
forests of aspen and willow and cottonwood. Consequently, the
birds started migrating to the Yellowstone National Park, sparking
an increase in migratory and songbirds. The population of beavers
increased and like the wolves, they too are ecosystem engineers
who built natural dams in the rivers, creating habitat for otters,
muskrats, ducks, fishes, reptiles and amphibians.
The wolves hunted the coyotes as well, which resulted in the
rise of rabbits and mice, enticing more hawks, weasels and foxes.
The ravens and eagles came down to feed on the carrion left by the
wolves. The regeneration of shrubs also aided in the growth of
bears, who mostly fed on berries and the carrion. The bears also
reinforced the impact of the wolves by killing deer. Most
interestingly, the experiment of reintroduction of the wolves helped
in stabilising the water banks and fixing the course of rivers. There
5
was reduction in soil erosion due to recovery of the valley and the
vegetation. So, a small number of wolves left an indelible mark in
the transformation of the first national park of the world, the
Yellowstone National Park and its physical geography within a
short period of around 20 years. This kind of regenerative effect
cannot even be thought of by human efforts whatever the
magnitude be thereof.
Looking at the empirical evidence of the impact of carnivores
in maintaining the ecosystem of forests, the efforts of tiger
conservation in the Jim Corbett National Park, an iconic National
Park of this country is imperative and of utmost importance.
I. BACKGROUND
1. The background leading to the present proceedings, in brief,
is thus:
1.1 Mr. Gaurav Kumar Bansal, who has intervened in the
present proceedings, had approached the Delhi High Court by
filing W.P. (C) No. 8729 of 2021 and CM Application No. 27181 of
2021, alleging therein that illegal construction of bridges and
walls within the Tiger Breeding Habitat of Corbett Tiger Reserve
and that too, without the approval from the Competent Authority
6
were being carried out. He had sought intervention of the Courtto protect and conserve the Biological Diversity, flora and fauna
as well as the ecology of the Corbett National Park.
1.2 The Delhi High Court vide its judgment dated 23rd August
2021, disposed of the said petition observing thus:
“We have heard the Petitioner. Looking to the
averments in the writ petition and the
provisions of the Wildlife Protection Act, 1972,
more particularly, Section 38(O)(b) thereof, we
deem it appropriate, at this stage, to direct the
Respondent to treat this writ petition as a
Representation and look into the issues
flagged and highlighted by the Petitioner.
Needless to state that in case the Respondent
finds merit in the issues raised, necessary
action shall be taken by the Respondent, in
accordance with law, keeping in mind the
provisions of the Wildlife Protection Act, 1972
and the necessity of conserving the flora and
fauna as well as the ecology of the National
Park. For the purpose of taking a decision
and consequential action, if any, it is open to
the Respondent to call for an inspection
report, in order to verify the factual status
with respect to the allegations made in the
writ petition. The exercise shall be carried out
by the Respondent as expeditiously as
possible and practicable.”1.3 The Division Bench of the High Court of Uttarakhand at
Nainital, noticing a news published in “Times of India”, vide its
order dated 27th October 2021, in Writ Petition (PIL) No. 178 of
7
2021, took suo motu cognizance of the illegal constructionactivities being undertaken by unknown persons. It will be
relevant to refer to the said order, which reads thus:
“A news item has appeared in the “Times of
India” newspaper, dated 23.10.2021,
regarding the illegal construction activities
being undertaken by unknown persons,
which are clearly in violation of the Forest
Laws. The said illegal construction activities
are being undertaken in the Corbett Tiger
Reserve, one of the premier Tiger Reserves of
the country.
2. According to the said article, a
Committee of the National Tiger Conservation
Authority (“NTCA” for short) had recently
visited the Corbett Tiger Reserve. The
Committee discovered not only illegal
construction of bridges and buildings, but
even the felling of trees. The Committee
further noted that there has been violation of
the provisions of the Wildlife (Protection) Act,
1972, the Forest (Conservation) Act, 1980, as
well as the Indian Forest Act, 1927.
Surprisingly, a single lane road is being
constructed in the core/critical habitat of the
Corbett Tiger Reserve. Despite the fact that
the Committee has recommended that all
illegal constructions in Morghatti and
Pakhrau FRH campuses be demolished, and
eco-restoration work be undertaken with
immediate effect, no concrete steps have been
taken by the respondents.
3. Moreover, despite the fact that the
Committee recommended that the Ministry of
Environment should initiate action against
8
the responsible officers, as per the provisions
contained in the Forest (Conservation) Act,
1980, not even initial steps have been taken
even by the Ministry. Therefore, this Court
issues notices to the respondents.
4. Mr. Rakesh Thapliyal, the learned
Assistant Solicitor General for the Union of
India, accepts notice on behalf of the
respondent no.1.
5. Mr. C.S. Rawat, the learned Chief
Standing Counsel for the State of
Uttarakhand, accepts notice on behalf of the
respondent nos. 2, 3, 5, 6, 7, 8, 9, 10 and 11.
6. Issue notice to the respondent no.4.
Rule made returnable within four weeks.
7. The Registry is directed to implead the
National Tiger Conservation Authority as a
party respondent in this Writ Petition.
8. Meanwhile, the Principal Chief
Conservator of Forest (General), Uttarakhand,
the respondent no.5, the Principal Chief
Conservator of Forest (Wildlife), Uttarakhand,
the respondent no.6, and the Director of the
Corbett National Park, Uttarakhand, the
respondent no.8, are directed to inspect the
site, and to submit a report with regard to the
nature and extent of the illegal constructions
being carried out, with regard to the persons,
who are responsible for carrying out the said
illegal constructions, and with regard to the
concrete steps taken by the respondent nos.
5, 6 and 8 against such persons, and against
the illegal constructions.”
1.4 It appears that in the meantime, Mr. Gaurav Kumar Bansal
9
also filed an Application No.1558 of 2021 before the Central
Empowered Committee (“CEC” for short), bringing to the notice of
the CEC the following:
“a. Illegal felling of trees in the name of
establishment of Tiger Safari in Gujjar Sot,
Pakhrau Block, Sonandi Range, Kalagarh
Division, Corbett Tiger Reserve;
b. Illegal construction of buildings and
waterbodies etc. by way of cutting trees
illegally in
(i) Saneh Forest Rest House
toward Pakhrau Forest Rest
House.
(ii) Pakhrau Forest Rest House
towards Morghatti Forest Rest
House and
(iii) Moraghatti Forest Rest House
towards Kalagarh Forest Rest
House.
According to the Applicant the above said
activities within buffer area of Corbett Tiger
Reserve apart from being illegal also cause
irreversible damage to the Biological Diversity,
Ecology, Flora and Fauna in the Corbett
landscape. The Applicant has requested that
appropriate action be taken in accordance
with law.”
1.5 It further appears that I.A. No. 186910 of 2022 came to be
registered in the present proceedings based on the CEC Report
No.30 of 2022 in Application No.1557 of 2022 filed before it by Mr.
10
Gaurav Kumar Bansal. It was alleged by Mr. Gaurav Kumar
Bansal in the said proceedings that in the Rajaji National Park as
well as in the Corbett National Park, illegal roads were being
constructed. In the said I.A., we have passed the following order
on 11th January 2023:
“I.A. NO.186910/2022
[CEC REPORT 30/2022- REPORT OF CEC IN
APPLN. NO.1557/2022 FILED BEFORE IT BY
GAURAV KR. BANSAL]
IN RE: GAURAV KR. BANSALIssue notice, returnable on 08.02.2023.
Shri Abhishek Atrey, learned counsel,
appears and accepts notice on behalf of the
State of Uttarakhand.
By way of ad interim order, we direct that
all construction activities in respect of the
road in question shall be stopped, until
further orders.”1.6 Shri Bansal had also filed a Contempt Petition (Civil) No.319
of 2019, alleging that the Authorities had acted in violation of the
orders passed by this Court. We, therefore, passed the following
order on 11th January, 2023:
“Shri Mahendra Vyas, Member of the
CEC, states that report of the CEC would be
filed within ten days and copies thereof shall
also be supplied to the counsel for the State of11
Uttarakhand.
The respondent(s)/State shall file reply
to the report of the CEC prior to 03.02.2023.
Put up on 08.02.2023.”
1.7 When the aforesaid I.A.(s) and Contempt Petition(s) along
with I.A. No.20650 of 2023, containing the report of the CEC on
Application No.1558 of 2021 filed by Mr. Gaurav Kumar Bansal
before it was placed before us on 8th February 2023, we have
passed the following order:
“CONTEMPT PETITION (C) NO.319/2021,
I.A. NOS.186910/2022 AND 20650/2023
(ITEM NO.8.)
1. Issue notice in I.A. Nos.186910/2022
and 20650/2023 to the Ministry of
Environment, Forest and Climate Change and
the National Tiger Conservation Authority
(NTCA), returnable on 15.03.2023.
2. In addition to the usual mode, liberty is
granted to the petitioner to serve notice
through the Standing Counsel for the
respondent/State.
3. A perusal of the report(s) would reveal that
various constructions have been carried out
within the area of the Tiger Reserve. The
photograph would show that a cordoned area
has been constructed between the Tiger
Reserve.
4. Mr. Abhishek Attri, learned counsel
12
appearing for the State of Uttrakhand,
submits that the concept of jungle tourism
permits such a safari to be constructed in
jungle areas, and according to the learned
counsel, such a phenomenon is acceptable
worldwide.
5. Prima facie, we do not appreciate the
necessity of having a zoo inside Tiger Reserves
or National Parks. The concept of protecting
Tiger Reserves and National Parks is that the
fauna must be permitted to reside in the
natural habitat and not the artificial environs.
6. We, therefore, call upon the NTCA to
explain the rationale behind granting such a
permission for permitting Tiger Safaris within
Tiger Reserves and National Parks.
7. Until further orders, we restrain the
authorities from making any construction
within the areas notified as Tiger Reserves
and National Parks and Wildlife Sanctuaries.
8. The State of Uttarakhand is directed to file
its reply in I.A. Nos.186910/2022 and
20650/2023, within three weeks.
CONTEMPT PETITION (C) NO.302/2020
(ITEM NO.9)
List on 13.02.2023.”
1.8 Subsequently, an I.A. came to be filed by the State of
Uttarakhand for modification of the order passed by this Court
dated 8th February 2023. It was submitted in the I.A. that the
13
State of Uttarakhand was not in a position to even carry out the
routine management activities, such as construction of watch
towers, water bodies, and other necessary activities required for
the day-to-day management of the Sanctuary, National Parks, and
Reserves. It was submitted on behalf of the State that all such
works are covered and approved by this Court in its order of 14th
September 2007, upon recommendation of the CEC. In the said
I.A., it was submitted that all illegal constructions have since been
demolished and even the debris has been removed. The State of
Uttarakhand, therefore, prayed for modification of the order of this
Court dated 8th February 2023.
1.9 We passed the following order dated 28th November 2023:
“1. I.A.No.181182 of 2023 is filed for
modification of the order dated 08th February
2023 permitting the construction activities
mentioned in paragraph 6 and 8 of I.A.
No.181182 of 2023.
2. Shri K. Parameshwar, learned Amicus
Curiae, has raised concern about some of the
items with regard to which permission is
sought.
3. We find that most of the items for which
the permission is sought are essential for
maintaining the Tiger Reserves, National
Parks and Wildlife Sanctuaries.
14
4. Therefore, we allow the construction
activities as mentioned in paragraph 6 and 8
of the I.A. No.181182 of 2023.
5. If under the garb of the orders passed by
this Court, the State Government misuses the
liberty and raises some constructions which
are unnecessary, the same can always be
brought to the notice of the Court.
6. However, taking into consideration the
past experience with regard to illegal
construction in Jim Corbett National Park
and Rajaji National Park, we warn the State
Government that it shall ensure that the
aforesaid constructions are made strictly in
accordance with the relevant guidelines.
7. With these observations and directions,
these applications are disposed of.”
1.10 On 11th January 2024, we segregated the Contempt Petition
(C) No. 319 of 2021 and I.A. No.186910 of 2022, since they
pertained to the Rajaji National Park.
1.11 In the meantime, Writ Petition No. 178 of 2021 was also
heard by the Division Bench of the High Court of Uttarakhand at
Nainital on 1st September 2023. The judgment in the said matter
came to be delivered on 6th September 2023. The operative part
of the judgment and order dated 6th September 2023 reads thus:
“29. This Court, after considering the material
on record, comes to the conclusion that the
present matter falls within the principles15
enunciated by the Hon’ble Constitution Bench
and we are satisfied that the material on record
does disclose a prima facie case calling for an
investigation by the Central Bureau of
Investigation.
30. Therefore, the present matter is referred to
C.B.I. for proper and uninfluenced investigation
in accordance with law.
31. A copy of this order be sent to the Director,
C.B.I., New Delhi for compliance.
32. All the authorities in the State, if
requested, are directed to cooperate with the
C.B.I. in conducting fair investigation of the
case.
33. We make it clear that we have not
expressed any opinion on the merits of the
allegations or make any comment on the
contents of the enquiries and reports.”1.12 We have heard the I.A. No.20650 of 2023 about the issues
concerning the Corbett National Park on the 11th and 12th of
January 2024.
2. A perusal of report of the CEC, which is numbered as I.A.
No.20650 of 2023 as well as other reports submitted by various
authorities, which were also taken into consideration by the CEC
in its report, depicts a bleak picture of things in the Corbett
National Park which is one of the first National Parks established
16
in India. The reports make it clear that some of the Forest officershave blatantly resorted to illegal felling of trees, proceeding with
construction activities in flagrant disregard of the provisions of
the law and orders of this Court. We therefore decided to treat
this as a test case and determine as to what directions are
necessary to be issued, so that in future, such illegal activities are
not repeated and as to what measures are required to be resorted
to for protecting the precious wildlife.
3. We extensively heard Mr. K. Parameshwar, learned Amicus
Curiae, Mr. A.N.S. Nadkarni, learned Senior Counsel appearing
for the State of Uttarakhand, Ms. Aishwarya Bhati, learned
Additional Solicitor General appearing for the Union of India and
Mr. Gaurav Kumar Bansal, applicant-in-person.
II. SUBMISSIONS OF THE PARTIES
4. The submissions made by Mr. K. Parameshwar could be
summarized as under:
(i) The forests of the Corbett Tiger Reserve form an
essential corridor link between the Corbett and the
Rajaji National Park through the Rawasana – Sonanadi
Corridor in the Lansdowne Forest Division. The
17
construction of ‘Tiger Safari’ would lead to habitatfragmentation.
(ii) That, under Section 38V of the Wild Life (Protection)
Act, 1972 (hereinafter referred to as “WLP Act”), the
State Government, on the recommendations of the
Tiger Conservation Authority, is required to notify an
area as a tiger reserve. It is also required to prepare a
Tiger Conservation Plan (hereinafter referred to as
“TCP”) including the staff development and deployment
plan for the proper management of each area to ensure
the protection of the tiger reserve, ecologically
compatible land uses in the tiger reserves and the
forestry operations of regular forest divisions.
(iii) That, under sub-section (4) of Section 38V of the WLP
Act, the concept of integrity of Tiger Reserve requires
protection of buffer area and adequate dispersal for the
species.
(iv) That, the TCP prepared by the National Tiger
Conservation Authority (“NTCA” for short) proposed a
Safari at the Karnashram area of Lansdowne Forest
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Division. However, the Central Zoo Authority (“CZA” forshort) unilaterally changed the proposed site to
Pakhrau Block, Kalagarh Division.
(v) That, the WLP Act emphasizes on the conservation of
wildlife and not tourism. However, establishing a zoo
in a buffer area would amount to giving preference to
tourism over wildlife protection.
(vi) That, conservation of wildlife should be eco-centric and
not anthropocentric.
(vii) That, the provisions of the WLP Act would reveal that
the National Board of Wildlife, State Board of Wildlife,
Chief Wildlife Warden, and the NTCA are experts for in
situ conservation of wildlife whereas the CZA is an
expert body for ex situ mode of conservation.
(viii) That, the final authority insofar as in situ ‘Tiger Safari’
is concerned should be exclusively within the domain
of NTCA, which is an expert body insofar as
conservation and protection of Tigers is concerned. He
therefore submits that the 2019 Guidelines, which
restore the primacy to the CZA, are against the said
19
principle.
(ix) That, until 2016, the regulatory regime only recognized
safaris as being an ex-situ mode of conservation.
(x) That, the ‘Tiger Safari’ is not defined under the WLP Act
or any other statute. The concept of ‘Safari’ is found
only in the proviso to Section 33(a). The proviso to
Section 33(a) also bans the construction of ‘hotels, zoos
and safari parks’ inside a sanctuary and National Parks
without the prior approval of the National Board.
(xi) That, for the first time, the concept of ‘‘Tiger Safari’’ in
the wild was introduced by the Government in the
Tourism Guidelines, 2012. It provided for the creation
of ‘Tiger Safaris’ in the buffer areas of tiger reserves
‘which experience immense tourist influx in the
core/critical tiger habitat for viewing tigers.’
(xii) That, the ‘‘Tiger Safari’’ as is envisaged, is not a
measure of conservation but a means for tourism.
(xiii) That, though the 2016 Guidelines provided that the
injured, conflict or orphaned tigers may be exhibited in
‘Tiger Safaris’, the 2019 Guidelines provided that the
20
animals shall be selected as per Section 38I of the WLPAct, providing thereby that the animals from the zoos
would be brought in the ‘Tiger Safaris’.
(xiv) That, the understanding of the NTCA is that ‘Tiger
Safaris’ are merely ‘zoos’ made inside the Tiger Reserve,
which is erroneous.
(xv) That, the 2019 Guidelines which permit the animals
from zoos outside their natural habitat to be relocated
in the ‘Tiger Safaris’ situated in the buffer zone, would
lead to the risk of zoonotic disease transmission. It is
submitted that, if the animals from zoos are allowed
into the Tiger Reserves, it will not only cause
interference with the natural habitat of the animals,
but the onset of zoonotic disease would be highly
dangerous to the tigers in the National Park.
(xvi) Insofar as existing zoos in the Tiger Reserves are
concerned, the said zoos were established much before
the creation of the NTCA and the conservation of tigers
through Tiger Reserves.
(xvii) That, it is necessary to employ the precautionary
21
principle so as to prevent harm that would be causedon account of the relocation of animals from the zoos to
the Tiger Reserves/Safaris.
(xviii) That, the delegation of power by the NTCA to the
CZA, which is an expert body only for captive animals
in ex situ conservation violates the entire scheme of the
WLP Act.
(xix) That, the Court must employ the restorative principle
to restore the damages caused to the environment
when constructions were raised for the Safari.
(xx) Mr. Parmeshwar has also given various suggestions for
the protection of wildlife and restoration of
environmental damages as has been done in the case
of the Jim Corbett National Park.
5. The submissions of Mr. A.N.S. Nadkarni could be
summarized as under:
(i) It is submitted that insofar as the illegal constructions
are concerned, the same has already been demolished
and even debris has been removed.
22
(ii) That, all illegal construction works of buildings
including the Forest Rest House at Mor Ghatti,
Pakhrau, Kugadda Forest Camp, and Saneh Forest
Rest House were being carried out by the Divisional
Forest Officer (“DFO” for short), Kalagarh without the
requisite administrative and financial approvals of the
Competent Authority. That, the said works were
executed solely under the orders of the DFO, Kalagarh,
who was not competent to sanction the said works.
(iii) That, proceedings have been initiated against the erring
officials/officers. Immediately Mr. J.S. Suhag, the then
Principal Chief Conservator of Forests (“PCCF” for
short) Wildlife, since deceased, was suspended; the
Field Director of Corbett was transferred and the DFO
Kalagarh along with the Range Officer, Kalagarh and
several other officials lower in rank were also
suspended.
(iv) An FIR was also lodged by the Vigilance Department
against the DFO Kishan Chand and a Forest Ranger for
offences punishable under Sections 420, 466, 467,
23
468, 471, 409, 120B, 218/34 IPC, Section 26 of theForest Act and Section 13(1)(a) and 13(2) of the
Prevention of Corruption Act.
(v) The buffer areas are peripheral to core areas. As per
Section 38V(4) of the WLP Act, a lesser degree of habitat
protection is accorded and this aims to promote co-
existence between wildlife and human activity with due
recognition of the livelihood, developmental, social, and
cultural rights of the local people. However, in carrying
out these activities, the requisite permissions have
been taken.
(vi) That, the project for establishing ‘Tiger Safari’ was not
initiated by the State of Uttarakhand. It was NTCA,
which wrote to the Field Directors of four (04) Tiger
Reserves across the county, by letter dated 19th
December 2014, calling upon them to send a proposal
for the establishment of ‘Tiger Safari’ in the buffer area
of Tiger Reserves.
(vii) Pursuant to this, a proposal was forwarded by the State
of Uttarakhand on the 5th of June 2015 to establish the
24
‘Tiger Safari’ and an in-principal approval was granted
by the NTCA with a further direction to forward the
same to the CZA for vetting.
(viii) That, under the provisions of Section 38H of the WLP
Act, the CZA is the statutory authority for grant of
approval for the establishment of ‘Tiger Safaris’.
(ix) That, TCP for the Corbett Tiger Reserve was forwarded
by the State of Uttarakhand to the Government of India
on 27th January 2015. That, the Government of India
granted its approval on 4th March 2015 to the TCP
prepared by the State of Uttarakhand. The said TCP
also had a plan for the setting up of a rescue centre-
cum-tiger safari in the buffer area of Corbett Tiger
Reserve.
(x) Vide letter dated 12th February 2019, the CZA conveyed
its approval for the establishment of ‘Tiger Safari’ in the
Gujar Sot, Pakhrau Block, Sona Nadi Range, Kalagarh
Division, Corbett Tiger Reserve (hereinafter referred to
as “Pakhrau”) on an area of 106.16 Hectares.
(xi) Though initially it was proposed to establish the ‘Tiger
25
Safari’ at Karnashram area of Lansdowne Forest
Division, the said site was found unsuitable. The site
at Pakhrau was found to be more suitable since it was
at the edge of the buffer zone.
(xii) After the CZA granted its approval, an in-principal
approval under the Forest Conservation Act was
granted by the Government of India on 30th October
2020.
(xiii) That, at the relevant time, setting up of a ‘Tiger Safari’
was considered as a ‘part forest and part non-forestry’
activity. As such, the State of Uttarakhand had
approached the Government of India for getting the
Forest Clearance for 15% of the area, as mandated.
However, as of today, the position is different inasmuch
as the establishment of zoos and the ‘Tiger Safari’ are
now considered as ‘forestry activities’ and do not
require any Forest Clearance.
(xiv) Thereafter, Stage-II clearance was granted on 10th
September 2021.
(xv) As such, the ‘Tiger Safari’ was established due to the
26
initiative taken by the NTCA and after the grant of all
the requisite approvals.
(xvi) It was submitted that the project “Tiger Safari’ has been
completed to the extent of 80%, investing a huge
amount of public money.
(xvii) As such, the allegations about the violation of statutory
provisions for the establishment of the ‘Tiger Safari’ are
without substance.
(xviii) That, the report of the Forest Survey of India (“FSI”
for short) which was entrusted with the work of
carrying out the survey regarding the illegal felling of
trees is concerned, the same does not depict a correct
picture.
(xix) That, the total area involved in the construction of the
‘Tiger Safari’ was approximately 16 Hectares and it is
impossible that in such a small area, 6000 trees could
be felled.
(xx) When the State applied for Forest Clearance for the
establishment of the ‘Tiger Safari’ project, the number
of trees present in the 16 Hectares was enumerated
27
after counting them physically which was also
contained in the proposal. The said proposal
mentioned that there are 3,620 trees standing on the
site.
(xxi) In the survey conducted by the Forest Department, it
was found that, apart from 163 trees for which there
was valid permission, an additional 97 trees were cut
down in the process.
(xxii) That, the FSI report is based on Google Image
calculation and does not depict the correct picture.
(xxiii) That, the FSI was asked by the State of
Uttarakhand to provide the methodology used for
arriving at its report, but the FSI failed to do so.
(xxiv)That, the works which are carried out after obtaining
the permission of this Court by order dated 28th
November 2023 are all routine management activities,
such as setting up of watch towers and other necessary
activities required for the day-to-day management of
the Sanctuaries, National Parks and Reserves.
(xxv) Insofar as Interpretation Centre is concerned, it was
28
submitted that the Interpretation Centre has been held
to be a ‘forestry activity’ not requiring Forest Clearance
from the Central Government.
(xxvi)It was further submitted that, the area of Pakhrau Tiger
Safari is 106.16 Hectares, which amounts to only
0.082% of the total area of the Corbett Tiger Reserve
and 0.22% of the buffer area of the Tiger Reserve. In
any case, it is situated at the edge of the buffer zone.
On the other side of the buffer zone, there are farm
lands of the villagers residing in the adjoining area. As
such, the contention that the establishment of ‘Tiger
Safari’ would shrink the available tiger habitat and as
such, obstruct the corridors for the movements of the
tigers is without substance.
6. Ms. Aishwarya Bhati, learned ASG submitted that the 2016
Guidelines took into consideration the concern of injured tigers,
conflict tigers, or orphaned tiger cubs. However, the 2019
Guidelines were issued to bring it in tune with Section 38I of the
WLP Act. It is submitted that, in the TCP submitted by the State
of Uttarakhand, a ‘Tiger Safari’ was proposed at the Karnashram
29
area of Lansdowne Forest Division. Ms. Bhati submitted that
there are about 20 Safaris situated in the National Parks. Some
of them have been operating since the 1970s.
7. Mr. Gaurav Kumar Bansal reiterated that various illegal
constructions were made in the Corbett National Park in total
violation of the statutory provisions. He further submitted that
illegal felling of trees was also done to facilitate the illegal
construction.
III. STATUTORY PROVISIONS
8. Before we consider the submissions of the learned counsel
for the parties, it will be relevant to refer to certain provisions of
the WLP Act.
9. The statement of objects and reasons for the WLP Act would
reveal that the enactment of the WLP Act was necessitated since
it was noticed that there was rapid decline of India’s wild animals
and birds, which was one of the richest and most varied in the
world. Some wild animals and birds had already become extinct
in the country and others were in danger of being so. Areas that
were once teeming with wildlife had become devoid of it and even
in Sanctuaries and National Parks, the protection afforded to
30
wildlife needed to be improved. It was noticed that, the Wild Birds
and Animals Protection Act, 1912 (8 of 1912) had become
completely outmoded. The existing State laws were not only
outdated but provided punishments that were not commensurate
with the offence and the financial benefits which accrue from
poaching and trade in wildlife produce. It was noticed that such
laws mainly related to the control of hunting and did not
emphasize the other factors which were also prime reasons for the
decline of India’s wildlife, namely, taxidermy and trade in wildlife
and products derived therefrom.
10. However, since the subject matters were relatable to Entry
20 of the State list in the Seventh Schedule to the Constitution of
India, the Parliament had no power to make a law unless the
Legislatures of two or more States passed a resolution in
pursuance of Article 252 of the Constitution of India. Accordingly,
11 States had passed resolutions to that effect. In this
background, the WLP Act came to be enacted.
11. The long title of the WLP Act was amended by the Wild Life
(Protection) Amendment Act, 2022 (No. 18 of 2022), which reads
thus:
31
“An Act to provide for the [conservation,
protection and management of wild life] and
for matters connected therewith or ancillary or
incidental thereto with a view to ensuring the
ecological and environmental security of the
country.”
[emphasis supplied]
12. Prior to the aforesaid amendment, the bracketed portion
read thus:
“protection of wild animals, birds and plants”
13. Sub-section (1) of Section 2 of the WLP Act defines “animal”,
which reads thus:
“(1) “animal” includes mammals, birds, reptiles,
amphibians, fish, other chordates and
invertebrates and also includes their young and
eggs;”
14. Sub-section (5) of Section 2 of the WLP Act defines “captive
animal”, which reads thus:
“(5) “captive animal” means any animal,
specified in Schedule I or Schedule II, which is
captured or kept or bred in captivity;”
15. Sub-section (20A) of Section 2 of the WLP Act defines
“National Board”, which reads thus:
32
“(20A) “National Board” means the National
Board for Wild Life constituted under Section
5A;”
16. Sub-section (21) of Section 2 of the WLP Act defines “National
Park”, which reads thus:
“(21) “National Park” means an area declared,
whether under Section 35 or Section 38, or
deemed, under sub-section (3) of Section 66, to
be declared, as a National Park;”
17. Sub-section (24A) of Section 2 of the WLP Act defines
“protected area”, which reads thus:
“(24A) “protected area” means a National Park,
a sanctuary, a conservation reserve or a
community reserve notified under Sections 18,
35, 36-A and 36-C of the Act;”
18. Sub-section (26) of Section 2 of the WLP Act defines
“sanctuary”, which reads thus:
“(26) “sanctuary” means an area declared as a
sanctuary by notification under the provisions
of Chapter IV of this Act and shall also include
a deemed sanctuary under sub-section (4) of
Section 66;”
19. Sub-Section (36) of Section 2 of the WLP Act defines “wild
animal”, which reads thus:
33
“(36) “wild animal” means any animal specified
in Schedule I or Schedule II and found wild in
nature;”
20. Sub-section (39) of Section 2 of the WLP Act defines “zoo”,
which reads thus:
“(39) “zoo” means an establishment, whether
stationary or mobile, where captive animals are
kept for exhibiting to the public or ex-
situ conservation and includes a circus and off-
exhibit facilities such as rescue centres and
conservation breeding centres, but does not
include an establishment of a licensed dealer in
captive animals.”
21. Chapter IV of the WLP Act deals with “protected areas”.
Section 18 provides for “Declaration of sanctuary”, which reads
thus:
“18. Declaration of sanctuary.—(1) The State
Government may, by notification, declare its
intention to constitute any area other than an
area comprised within any reserve forest or the
territorial waters as a sanctuary if it considers
that such area is of adequate ecological, faunal,
floral, geomorphological, natural or zoological
significance, for the purpose of protecting,
propagating or developing wild life or its
environment.
(2) The notification referred to in sub-section (1)
shall specify, as nearly as possible, the situation
and limits of such area.
Explanation.—For the purposes of this section,
it shall be sufficient to describe the area by
34
roads, rivers, ridges or other well-known or
readily intelligible boundaries.”
22. It will be relevant to refer to Section 33 of the WLP Act, which
deals with “Control of sanctuaries”. It reads thus:
“33. Control of sanctuaries.—The Chief Wild
Life Warden shall be the authority who shall
control, manage and protect all sanctuaries in
accordance with such management plans for
the sanctuary approved by him as per the
guidelines issued by the Central Government
and in case the sanctuary also falls under the
Scheduled Areas or areas where the Scheduled
Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 is
applicable, in accordance with the management
plan for such sanctuary prepared after due
consultation with the Gram Sabha concerned
and for that purpose, within the limits of any
sanctuary,—
(a) may construct such roads, bridges,
buildings, fences or barrier gates, and
carry out such other works as he may
consider necessary for the purposes of
such sanctuary:
Provided that no construction of tourist
lodges, including Government lodges, for
commercial purposes, hotels, zoos and
safari parks shall be undertaken inside a
sanctuary except with the prior approval of
the National Board;
(b) shall take such steps as will ensure the
security of wild animals in the sanctuary
and the preservation of the sanctuary and
wild animals therein;
35
(c) may take such measures, in the
interests of wild life, as he may consider
necessary for the improvement of any
habitat;
(d) may regulate, control or prohibit, in
keeping with the interests of wild life, the
grazing or movement of livestock.”
[emphasis supplied]
23. Section 35 of the WLP Act deals with “Declaration of National
Parks”, which reads thus:
“35. Declaration of National Parks.—(1)
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:
Provided that where any part of the territorial
waters is proposed to be included in such
National Park, the provisions of Section 26A
shall, as far as may be, apply in relation to the
declaration of a National Park as they apply in
relation to the declaration of a sanctuary.
(2) The notification referred to in sub-section (1)
shall define the limits of the area which is
intended to be declared as a National Park.
(3) Where any area is intended to be declared as
a National Park, the provisions of Sections 19 to
26-A [both inclusive except clause (c) of sub-
section (2) of Section 24)] shall, as far as may
36
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
sanctuary.
(3A) When the State Government declares its
intention under sub-section (1) to constitute
any area as a National Park, the provisions of
Sections 27 to 33-A (both inclusive), shall come
into effect forthwith, until the publication of the
notification declaring such National Park under
sub-section (4).
(3B) Till such time as the rights of the affected
persons are finally settled under Sections 19 to
26A [both inclusive except clause (c) of sub-
section (2) of Section 24], the State Government
shall make alternative arrangements required
for making available fuel, fodder and other
forest produce to the persons affected, in terms
of their rights as per the Government records.
(4) When the following events have occurred,
namely,—
(a) the period for preferring claims has
elapsed, and all claims, if any, made in
relation to any land in an area intended to
be declared as a National Park, have been
disposed of by the State Government, and
(b) 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.
37
(5) No alteration of the boundaries of a National
Park by the State Government shall be made
except on a recommendation of the National
Board.
(6) No person shall destroy, exploit or remove
any Wild Life including forest produce from a
National Park or destroy or damage or divert the
habitat of any wild animal by any act
whatsoever or divert, stop or enhance the flow
of water into or outside the National Park,
except under and in accordance with a permit
granted by the Chief Wild Life Warden, and no
such permit shall be granted unless the State
Government being satisfied in consultation with
the National Board that such removal of wild life
from the National Park or the change in the flow
of water into or outside the National Park is
necessary for the improvement and better
management of wild life therein, authorises the
issue of such permit:
Provided that where the forest produce is
removed from a National Park, the same may be
used for meeting the personal bona fide needs
of the people living in and around the National
Park and shall not be used for any commercial
purpose.
(7) No grazing of any livestock shall be permitted
in a National Park and no livestock shall be
allowed to enter therein except where
such livestock is used as a vehicle by a person
authorised to enter such National Park.
(8) The provisions of Sections 27 and 28, Section
30 to 32 (both inclusive), and clauses (a), (b) and
(c) of Section 33, Section 33A and Section 34
shall, as far as may be, apply in relation to a
National Park as they apply in relation to a
sanctuary.
38
Explanation.—For the purposes of this section,
in case of an area, whether within a sanctuary
or not, where the rights have been extinguished
and the land has become vested in the State
Government under any Act or otherwise, such
area may be notified by it, by a notification, as
a National Park and the proceedings under
Sections 19 to 26 (both inclusive) and the
provisions of sub-sections (3) and (4) of this
section shall not apply.”
24. Section 36A of the WLP Act deals with “Declaration and
management of a conservation reserve”, which reads thus:
“36A. Declaration and management of a
conservation reserve.—(1) The State
Government may, after having consultations
with the local communities, declare any area
owned by the Government, particularly the
areas adjacent to National Parks and
sanctuaries and those areas which link one
protected area with another, as a conservation
reserve for protecting landscapes, seascapes,
flora and fauna and their habitat:
Provided that where the conservation reserve
includes any land owned by the Central
Government, its prior concurrence shall be
obtained before making such declaration.
(2) The provisions of sub-section (2) of Section
18, sub-sections (2), (3) and (4) of Section 27,
Sections 30, 32 and clauses (b) and (c) of Section
33 shall, as far as may be, apply in relation to a
conservation reserve as they apply in relation to
a sanctuary.”39
25. Section 36C of the WLP Act deals with “Declaration and
management of community reserve”, which reads thus:
“36-C. Declaration and management of
community reserve.—(1) The State
Government may, where the community or an
individual has volunteered to conserve wild life
and its habitat, declare any private or
community land not comprised within a
National Park, sanctuary or a conservation
reserve, as a community reserve, for protecting
fauna, flora and traditional or cultural
conservation values and practices.
(2) The provisions of sub-section (2) of Section
18, sub-sections (2), (3) and (4) of Section 27,
Sections 30, 32 and clauses (b) and (c) of Section
33 shall, as far as may be, apply in relation to a
community reserve as they apply in relation to
a sanctuary.
(3) After the issue of notification under sub-
section (1), no change in the land use pattern
shall be made within the community reserve,
except in accordance with a resolution passed
by the management committee and approval of
the same by the State Government.”
26. Chapter IVA of the WLP Act deals with “Central Zoo Authority
and Recognition of Zoos”. The only relevant provision for
consideration of the issue in the present matter is Section 38-I,
which reads thus:
“38-I. Acquisition of animals by a zoo.—(1)
Subject to the other provisions of this Act, no
zoo shall acquire, sell or transfer any wild40
animal or captive animal specified in Schedules
I except with the previous permission of the
Authority.
(2) No zoo shall acquire, sell or transfer any
wild or captive animal except from or to a
recognized zoo:
Provided that nothing in this sub-section
shall apply to a conservation breeding centre.”
27. Chapter IVB of the WLP Act deals with “National Tiger
Conservation Authority”. Section 38-O deals with “Powers and
Functions of Tiger Conservation Authority”, which reads thus:
“38-O. Powers and functions of Tiger
Conservation Authority.—(1) The Tiger
Conservation Authority shall have the following
powers and perform the following functions,
namely:—
(a) to approve the Tiger Conservation Plan
prepared by the State Government under
sub-section (3) of Section 38V of this Act;
(b) evaluate and assess various aspect of
sustainable ecology and disallow any
ecologically unsustainable land use such
as, mining, industry and other projects
within the tiger reserves;
(c) lay down normative standards for
tourism activities and guidelines for
project tiger from time to time for tiger
conservation in the buffer and core area of
tiger reserves and ensure their due
compliance;
41
(d) provide for management focus and
measures for addressing conflicts of men
and wild animals and to emphasise on co-
existence in forest areas outside the
National Parks, sanctuaries or tiger
reserve, in the working plan code;
(e) provide information on protection
measures including future conservation
plan, estimation of population of tiger and
its natural prey species, status of habitats,
disease surveillance, mortality survey,
patrolling, reports on untoward
happenings and such other management
aspects as it may deem fit including future
plan conservation;
(f) approve, co-ordinate research and
monitoring on tiger, co-predators, prey,
habitat, related ecological and socio-
economic parameters and their evaluation;
(g) ensure that the tiger reserves and areas
linking one protected area or tiger reserve
with another protected area or tiger
reserve are not diverted for ecologically
unsustainable uses, except in public
interest and with the approval of the
National Board for Wild Life and on the
advice of the Tiger Conservation Authority;
(h) facilitate and support the tiger reserve
management in the State for biodiversity
conservation initiatives through eco-
development and people’s participation as
per approved management plans and to
support similar initiatives in adjoining
areas consistent with the Central and
State laws;
(i) ensure critical support including
scientific, information technology and
42
legal support for better implementation of
the tiger conservation plan;
(j) facilitate ongoing capacity building
programme for skill development of
officers and staff of tiger reserves; and
(k) perform such other functions as may be
necessary to carry out the purposes of this
Act with regard to conservation of tigers
and their habitat.
(2) The Tiger Conservation Authority may, in the
exercise of its powers and performance of its
functions under this chapter, issue directions in
writing to any person, officer or authority for the
protection of tiger or tiger reserves and such
person, officer or authority shall be bound to
comply with the directions:
Provided that no such direction shall interfere
with or affect the rights of local people
particularly the Scheduled Tribes.”
28. Section 38V of the WLP Act deals with “Tiger Conservation
Plan”, which reads thus:
“38V. Tiger Conservation Plan.—(1) The State
Government shall, on the recommendations of
the Tiger Conservation Authority, notify an area
as a tiger reserve.
(2) The provisions of sub-section (2) of Section
18, sub-sections (2), (3) and (4) of Section 27,
Sections 30, 32 and clauses (b) and (c) of Section
33 of this Act shall, as far as may be, apply in
relation to a tiger reserve as they apply in
relation to a sanctuary.
(3) The State Government shall prepare a Tiger
Conservation Plan including staff development
and deployment plan for the proper
43
management of each area referred to in sub-
section (1), so as to ensure—
(a) protection of tiger reserve and providing
site specific habitat inputs for a viable
population of tigers, co-predators and prey
animals without distorting the natural
prey-predator ecological cycle in the
habitat;
(b) ecologically compatible land uses in the
tiger reserves and areas linking one
protected area or tiger reserve with
another for addressing the livelihood
concerns of local people, so as to provide
dispersal habitats and corridor for spill
over population of wild animals from the
designated core areas of tiger reserves or
from tiger breeding habitats within other
protected areas;
(c) the forestry operations of regular forest
divisions and those adjoining tiger
reserves are not incompatible with the
needs of tiger conservation.
(4) Subject to the provisions contained in this
Act, the State Government shall, while
preparing a Tiger Conservation Plan, ensure the
agricultural, livelihood, developmental and
other interests of the people living in tiger
bearing forests or a tiger reserve.
Explanation.—For the purposes of this section,
the expression “tiger reserve” includes,—
(i) core or critical tiger habitat areas of
National Parks and sanctuaries, where it
has been established, on the basis of
scientific and objective criteria, that such
areas are required to be kept as inviolate
for the purposes of tiger conservation,
without affecting the rights of the
Scheduled Tribes or such other forest
44
dwellers, and notified as such by the State
Government in consultation with an
Expert Committee constituted for the
purpose;
(ii) buffer or peripheral area consisting of
the area peripheral to critical tiger habitat
or core area, identified and established in
accordance with the provisions contained
in Explanation (i) above, where a lesser
degree of habitat protection is required to
ensure the integrity of the critical tiger
habitat with adequate dispersal for tiger
species, and which aim at promoting co-
existence between wildlife and human
activity with due recognition of the
livelihood, developmental, social and
cultural rights of the local people, wherein
the limits of such areas are determined on
the basis of scientific and objective criteria
in consultation with the concerned Gram
Sabha and an Expert Committee
constituted for the purpose.
(5) Save as for voluntary relocation on mutually
agreed terms and conditions, provided that
such terms and conditions satisfy the
requirements laid down in this sub-section, no
Scheduled Tribes or other forest dwellers shall
be resettled or have their rights adversely
affected for the purpose of creating inviolate
areas for tiger conservation unless—
(i) the process of recognition and
determination of rights and acquisition of
land or forest rights of the Scheduled
Tribes and such other forest dwelling
persons is complete;
(ii) the concerned agencies of the State
Government, in exercise of their powers
under this Act, establishes with the
45
consent of the Scheduled Tribes and such
other forest dwellers in the area, and in
consultation with an ecological and social
scientist familiar with the area, that the
activities of the Scheduled Tribes and
other forest dwellers or the impact of their
presence upon wild animals is sufficient to
cause irreversible damage and shall
threaten the existence of tigers and their
habitat;
(iii) the State Government, after obtaining
the consent of the Scheduled Tribes and
other forest dwellers inhabiting the area,
and in consultation with an independent
ecological and social scientist familiar with
the area, has come to a conclusion that
other reasonable options of co-existence,
are not available;
(iv) resettlement or alternative package has
been prepared providing for livelihood for
the affected individuals and communities
and fulfils the requirements given in the
National Relief and Rehabilitation Policy;
(v) the informed consent of the Gram
Sabha concerned, and of the persons
affected, to the resettlement programme
has been obtained;
(vi) the facilities and land allocation at the
resettlement location are provided under
the said programme, otherwise their
existing rights shall not be interfered
with.”
29. Section 38W of the WLP Act deals with “Alteration and de-
notification of tiger reserves”, which reads thus:
46
“38W. Alteration and de-notification of tiger
reserves.—(1) No alteration in the boundaries of
a tiger reserve shall be made except on a
recommendation of the Tiger Conservation
Authority and the approval of the National
Board for Wild Life.
(2) No State Government shall de-notify a tiger
reserve, except in public interest with the
approval of the Tiger Conservation Authority
and the National Board for Wild Life.”
30. It will also be relevant to refer to Section 38XA of the WLP
Act, which reads thus:
“38-XA. Provisions of Chapter to be in
addition to provisions relating to sanctuaries
and National Parks.—The provisions contained
in this Chapter shall be in addition to, and not
in derogation of, the provisions relating to
sanctuaries and National Parks (whether
included and declared, or are in the process of
being so declared) included in a tiger reserve
under this Act.”
31. A perusal of the entire scheme of the WLP Act read with the
Statement of objects and reasons would clearly reveal that the
entire emphasis is on “conservation, protection and management
of the wildlife”. The WLP Act also provides for the matters
connected therewith or ancillary or incidental thereto for the
conservation, protection and management of wildlife. It also
47
emphasizes on ensuring the ecological and environmental
security of the country.
32. A perusal of the aforementioned provisions of the WLP Act
would reveal that various measures have been provided under the
said Act for the protection of protected areas. No doubt that the
definition of “protected area” as defined under sub-section (24A)
of Section 2 of the WLP Act only includes a National Park, a
sanctuary, a conservation reserve, or a community reserve, which
are notified under Sections 18, 35, 36A and 36C of the WLP Act.
However, the harmonious construction of the various provisions
of the WLP Act would reveal that the legislature intended the
“Tiger Reserves” to be kept at a higher pedestal than a sanctuary,
a National Park, a conservation reserve, or a community reserve.
33. As discussed hereinabove, the declaration of sanctuary is as
provided under Section 18 of the WLP Act. We have already
reproduced Section 18 hereinabove.
34. The Chief Wild Life Warden has been entrusted with the
functions and duties to control, manage, and protect all
sanctuaries in accordance with such management plans for the
sanctuary as approved by him as per the guidelines issued by the
48
Central Government. Under clause (a) of Section 33 of the WLP
Act; though construction of roads, bridges, buildings, fences or
barrier gates, and such other works as he may consider necessary
for sanctuary is permissible, the proviso thereto specifically
prohibits the construction of tourist lodges including Government
lodges for commercial purposes. It further prohibits the
construction of hotels, zoos and safari parks inside a sanctuary
except with the prior approval of the National Board. Clause (b)
thereof requires the Chief Wild Life Warden to take such steps as
would ensure the security of wild animals in the sanctuary and
the preservation of the sanctuary and wild animals therein. He is
also authorized to take such measures, in the interests of wildlife,
as he may consider necessary for the improvement of any habitat.
He is also authorized to regulate, control, or prohibit, in keeping
with the interests of wildlife, the grazing or movement of livestock.
35. Section 35 of the WLP Act deals with “Declaration of National
Parks”. In view of sub-section (8) thereof, the provisions which are
applicable under clauses (a), (b) and (c) of Section 33 of the WLP
Act to the ‘sanctuary’ would also be applicable to a ‘National Park’.
36. Section 36A of the WLP Act deals with “Declaration and
49
management of a conservation reserve”. In view of sub-section (2)
thereof, the provisions under clauses (b) and (c) of Section 33 of
the WLP Act, which are applicable to a ‘sanctuary’ shall, as far as
may be, apply also in relation to a ‘conservation reserve’.
37. Section 36C of the WLP Act deals with “Declaration and
management of community reserve”. In view of sub-section (2)
thereof, the provisions under clauses (b) and (c) of Section 33 of
the WLP Act, which are applicable to a ‘sanctuary’ shall, as far as
may be, apply also in relation to a ‘community reserve’.
38. Section 38-O deals with “Powers and Functions of Tiger
Conservation Authority”. Clause (a) thereof provides for approval
of the TCP prepared by the State Government under sub-section
(3) of Section 38V of the WLP Act. Under clause (b), it has to
evaluate and assess various aspects of sustainable ecology and
disallow any ecologically unsustainable land use such as setting
up of mining, industry, and other projects within the tiger
reserves. Under clause (c), it is required to lay down normative
standards for tourism activities and guidelines for ‘Project Tiger’
from time to time for tiger conservation in the buffer and core area
of tiger reserves and ensure their due compliance. Under clause
50
(d), it has to provide for management focus and measures for
addressing conflicts of men and wild animals and to emphasize
on co-existence in forest areas outside the National Parks,
sanctuaries, or tiger reserves in the working plan code. Under
clause (e), it has to provide information on protection measures
including future conservation plans, estimation of the population
of tigers and its natural prey species, status of habitats, diseases
surveillance, mortality surveys, patrolling, reports on untoward
happenings, and such any other management aspects as it may
deem fit including future plans for conservation. Under clause (f),
the Tiger Conservation Authority is required to approve, co-
ordinate research and monitor on tigers, co-predators, prey,
habitats, related ecological and socio-economic parameters, and
their evaluation. Under clause (g), it is required to ensure that
the tiger reserves and areas linking one protected area or tiger
reserve with another protected area or tiger reserve are not
diverted for ecologically unsustainable uses, except in public
interest and that too, with the approval of the National Board for
Wild Life and on the advice of the Tiger Conservation Authority.
Under clause (h), it is required to facilitate and support the tiger
51
reserve management in the State for biodiversity conservation
initiatives through eco-development and people’s participation as
per approved management plans and to support similar initiatives
in adjoining areas consistent with the Central and State laws.
Under clause (i), it is required to ensure critical support including
scientific, information technology, and legal support for better
implementation of the TCP. Under clause (j), it is required to
facilitate an ongoing capacity building programme for the skill
development of officers and staff of tiger reserves. Under clause
(k), it is required to perform such other functions as may be
necessary to carry out the purposes of the WLP Act with regard to
the conservation of tigers and their habitat.
39. The importance given to the Tiger Conservation Authority
can be seen in sub-section (2) of Section 38-O of the WLP Act,
which empowers it to issue directions in writing to any person,
officer or authority for the protection of tiger or tiger reserves and
such person, officer or authority are bound to comply with the
directions. No doubt that the proviso thereto provides that no
such direction shall interfere with or affect the rights of local
people, particularly the Scheduled Tribes.
52
40. Section 38V of the WLP Act deals with the notification of an
area as a tiger reserve and preparation of the “TCP”. Under sub-
section (1) thereof, the State Government is required to notify an
area as a tiger reserve, on such recommendations being made by
the Tiger Conservation Authority. Sub-section (2) thereof provides
that the provisions of sub-section (2) of Section 18, sub-sections
(2), (3) and (4) of Section 27, Sections 30, 32 and clauses (b) and
(c) of Section 33 of the said Act shall, as far as may be, apply in
relation to a tiger reserve as they apply in relation to a sanctuary.
41. Under sub-section (3) of Section 38V, the State Government
is required to prepare a TCP including staff development and
deployment plan for the proper management of each area referred
to in sub-section (1), so as to ensure protection of tiger reserve
and providing site specific habitat inputs for a viable population
of tigers, co-predators and prey animals without distorting the
natural prey-predator ecological cycle in the habitat. It is also
required to ensure ecologically compatible land uses in the tiger
reserves and areas linking one protected area or tiger reserve with
another for addressing the livelihood concerns of local people, so
as to provide dispersal habitats and corridor for spill over
53
population of wild animals from the designated core areas of tiger
reserves or from tiger breeding habitats within other protected
areas. It is also required to ensure that the forestry operations of
regular forest divisions and those adjoining the tiger reserves are
not incompatible with the needs of tiger conservation.
42. Under sub-section (4) of Section 38V, the State Government,
while preparing a TCP, is also required to ensure the agricultural,
livelihood, developmental and other interests of the people living
in tiger bearing forests or a tiger reserve. Explanation thereto
provides that the ‘tiger reserve’ shall consist of two areas. The
first area shall be core or critical tiger habitat areas of National
Parks and sanctuaries; which, on the basis of scientific and
objective criteria, are required to be kept as inviolate for the
purposes of tiger conservation, without affecting the rights of the
Scheduled Tribes or such other forest dwellers, and notified as
such by the State Government in consultation with an Expert
Committee constituted for the said purpose. The second area, i.e.,
the buffer or peripheral area, shall consist of the area peripheral
to critical tiger habitat or core area, identified and established in
accordance with the provisions contained in Explanation (i). In
54
such area, a lesser degree of habitat protection is required to
ensure the integrity of the critical tiger habitat with adequate
dispersal for tiger species. The creation of the buffer zone is aimed
at promoting co-existence between wildlife and human activity
with due recognition of the livelihood, developmental, social and
cultural rights of the local people, wherein the limits of such areas
are determined on the basis of scientific and objective criteria in
consultation with the concerned Gram Sabha and an Expert
Committee constituted for the said purpose.
43. Sub-section (5) of Section 38V deals with resettlement etc. of
the Scheduled Tribes and, therefore, it may not be necessary for
us to go into the provisions of sub-section (5).
44. Section 38W of the WLP Act deals with alteration and de-
notification of tiger reserves. It provides that no alteration in the
boundaries of a tiger reserve shall be made except on a
recommendation of the Tiger Conservation Authority and the
approval of the National Board for Wild Life. Sub-Section (2)
thereof prohibits the State Government from de-notifying a tiger
reserve, except in public interest with the approval of the Tiger
Conservation Authority and the National Board for Wild Life.
55
45. Section 38XA of the WLP Act which was inserted by the Wild
Life (Protection) Amendment Act, 2022 (No. 18 of 2022) makes the
legislative intent amply clear. It provides that, the provisions
contained in the said Chapter shall be in addition to, and not in
derogation of the provisions relating to sanctuaries and National
Parks (whether included and declared, or are in the process of
being so declared) included in a tiger reserve under this Act.
46. It could thus be seen that, the entire emphasis of the WLP
Act is on the conservation, protection, and management of
wildlife. Various provisions contained in the WLP Act, discussed
hereinabove, emphasize on providing measures for the
conservation, protection and management of wildlife. The
provisions contained in Chapter IVA lay a specific emphasis on
the protection of tigers and other habitats in the tiger reserve. The
provisions contained therein are in addition to the provisions
contained for sanctuaries and National Parks.
IV. GUIDELINES ISSUED BY VARIOUS AUTHORITIES
47. In light of the aforesaid statutory provisions, it will also be
necessary to refer to certain guidelines issued by various
authorities.
56
48. The NTCA published guidelines for preparation of TCP in
2007. The said guidelines provide for what should be the
approach for preparation of TCP. It will be relevant to refer to
clause 3.1 thereof, which reads thus:
“3.1 Consolidating and strengthening of
‘source’ populations of tiger in tiger reserves
and protected areas
The management interventions would involve:
1. Protection, anti-poaching activities and
networking
2. Strengthening of infrastructure within Tiger
Reserves
3. Habitat improvement including water
development
4. Rehabilitation package for traditional
hunting tribes living around tiger reserves
5. Staff development and capacity building
6. Delineating inviolate spaces for wildlife and
relocation of villagers from crucial habitats in
Tiger Reserves within a timeframe (five years)
and settlement of rights
7. Safeguarding tiger habitats from ecologically
unsustainable development”
49. It will also be relevant to refer to clause 3.2 thereof, which
reads thus:
“3.2 Managing ‘source-sink’ dynamics by
restoring habitat connectivity to facilitate
dispersing tigers to repopulate the core areas
The management interventions would involve:
57
1. Co-existence agenda in buffer/fringe areas
(landscape approach/sectoral integration) with
ecologically sustainable development
programme for providing livelihood options to
local people, with a view to reduce their resource
dependency on the core. The strategy would
involve reciprocal commitments with the local
community on a quid-pro-quo basis to protect
forests and wildlife, based on village level,
participatory planning and implementation
through ecodevelopment committees (EDC).
2. Addressing man-animal conflict issues
(ensuring uniform, timely compensation for
human injuries and deaths due to wild animals,
livestock depredation by carnivores, crop
depredation by wild ungulates).
3. Mainstreaming wildlife concerns in the buffer
landscape by targeting the various production
sectors in the area, which directly or
incidentally affect wildlife conservation, through
‘Tiger Conservation Foundation’, as provided in
the Wildlife (Protection) Amendment Act, 2006.
4. Addressing tiger bearing forests and fostering
corridor conservation through restorative
strategy in respective working plans of forest
divisions, involving local communities, to arrest
fragmentation of habitats.
5. Ensuring safeguards/retrofitting measures
in the area in the interest of wildlife
conservation.”
50. The guidelines also deal with various production sectors in
the buffer zone which require mainstreaming of wildlife concerns
in these sectors like:
58
“(a) Forestry (D)
(b) Agriculture (D)
(c) Integrated Development (ecodevelopment,
development through District Administration)
(D)
(d) Tourism (D)
(e) Fisheries (D)
(f) Tea/Coffee Estates (I)
(g) Road / Rail transport (D)
(h) Industry (D)
(i) Mining (I)
(j) Thermal power plants (I)
(k) Irrigation projects (D)
(l) Temple tourism (I)
(m) Communication projects (D)”
51. Clause 6 of the said guidelines deals with importance of a
buffer zone vis-à-vis the tiger land tenure dynamics, which reads
thus:
“6. Importance of a buffer zone vis-à-vis the
tiger land tenure dynamics
6.1 Tiger is a territorial animal, which advertises
its presence in an area and maintains a
territory. It is a well known fact that partial
overlaps of resident male territories in an area
do occur. However, the degree of overlap
increases lethal internecine combats. Several
female territories do occur in an overlapping
manner within the territory of a male tiger. The
tiger land tenure dynamics ensures presence of
prime adults in a habitat which act as source59
populations, periodically replacing old males by
young adults from nearby forest areas (Plate 2).
6.2 The ongoing study and analysis of available
research data on tiger ecology indicate, that the
minimum population of tigresses in breeding
age, which are needed to maintain a viable
population of 80-100 tigers (in and around core
areas) require an inviolate space of 800 -1000
sq km (see Annexure I). Tiger being an “umbrella
species”, this will also ensure viable populations
of other wild animals (co-predators, prey) and
forest, thereby ensuring the ecological viability
of the entire area / habitat. Therefore, buffer
areas with forest connectivity are imperative for
tiger dynamics, since such areas foster sub
adults, young adults, transients and old
members of the population. The young adults
periodically replace the resident ageing males
and females from the source population area.
6.3 The buffer area, absorbs the “shock” of
poaching pressure on populations of tiger and
other wild animals. In case of severe habitat
depletion in buffer areas, the source population
would get targeted and eventually decimate.
60
Plate 2: Tiger Land Tenure Dynamics.
Minimum population of tigers in breeding
age needed for maintaining a viable
population (80-100 tigers), which require an
inviolate space of 800-1000 square
kilometers.”
52. Clause 8 of the said guidelines deals with the importance of
the corridors, which reads thus:
“8. Value of Corridors
8.1 Isolated populations of wild animals face the
risk of extinction owing to insularization.
Habitat fragmentation adversely affects wildlife
due to decreased opportunity available for wild
animal movement from different habitats. This
in turn prevents gene flow in the landscape. The
equilibrium theory of island biogeography
predicts greater species richness in large wildlife
areas or in smaller areas connected by habitat
corridors owing to increased movements of wild
animals. Such connecting habitats, apart from
facilitating animal movements also act as refuge
for spill over populations from the core areas.
They may also act as smaller “source” by
facilitating breeding and movement of native
wildlife populations to colonize adjoining
habitats. Natural linear features like rivers or
mountain ranges may act as boundaries for
wildlife populations. However, disturbance of
corridors on account of human interventions
(highways, canals, industries, roads, railway
tracks, transmission lines) is deleterious to
wildlife.”
61
Plate 3: Tiger Land Tenure Dynamics
.
8.2 “Source” populations are those which
produce a surplus of animals which are
potential colonizers. On the other hand, “Sinks”
are those populations in which deaths exceed
births, and their persistence depends on regular
influx of immigrants.
8.3 Patches of suitable habitats in the
landscape may support wildlife populations
(local populations), which may be separated
from one another on account of various
disturbance factors. Collectively, such patches
of local populations are known as “regional
populations”. This general situation of sub
divided populations interacting with one
another in a landscape to supplement new
genes through movement, is known as a “meta
population”. In the context of tiger land tenure
dynamics, the core- buffer areas conform to the
“island-mainland” or “coresatellite” form of meta
population model. The core area of a tiger
reserve provides a source of colonizers for the
surrounding local populations of different sizes
and varying degrees of isolation. The core area
may not readily experience extinction owing to
62
the protection inputs for maintaining its
inviolate nature. However, the surrounding
isolated patches in the buffer area may suffer
from local extinction if wildlife concerns are not
mainstreamed in the area. Therefore, a meta
population management approach is required
for the buffer zone as well as corridors to
facilitate:
(a) Supplementing declining local tiger
populations
(b) Facilitating re-colonization in habitat
patches through restorative management
(c) Providing opportunity to tiger for colonizing
new areas through patches of habitats (stepping
stones) between isolated populations (Plate 4).
Plate 4: Meta population dynamics.
Corridors become crucial for maintaining
viability of Population 2 as by itself it does
not have the habitat to sustain greater than
20 breeding tigers.”
63
53. In 2012, the NTCA issued Guidelines for Normative
Standards for Tourisms Activities and for Project Tiger for tiger
conservation in the buffer and core areas of the tiger reserves
which were notified vide Gazette Notification dated 15th October
2012 (hereinafter referred to as “the 2012 Guidelines”)
54. Clause 16.2 of the 2012 Guidelines deals with strengthening
of infrastructure within the tiger reserve, which reads thus:
“16.2. Strengthening of infrastructure within
Tiger Reserves (ongoing) (non recurring for
new civil works and recurring for
maintenance).
The following activities, inter alia, would form
part of reinforcing the infrastructure of tiger
reserves (including support to new tiger
reserves):
(i) Civil Works (staff quarters, family
hostels, office improvement, patrolling
camp, house keeping buildings,
museum, culverts).
(ii) Maintenance, creation and upgradation
of road network.
(iii) Maintenance and creation of wireless
tower.
(iv) Maintenance and creation of fire watch
tower.
(v) Maintenance and creation of bridges,
dams, anicuts.
(vi) Maintenance, creation of firelines and
firebreaks.
64
(vii) Maintenance and creation of earthen
ponds.
(viii) Procurement and maintenance of
vehicles (Gypsy, Jeep, Truck, Tractor
etc.).
(ix) Habitat improvement works.
(x) Procurement of hardware,
software/Geographical Information
System (GIS).
(xi) Procurement of compass, range finder,
Global Positioning System (GPS),
camera traps.
(xii) Procurement of satellite imageries for
management planning.
(xiii) Map digitization facility for management
planning.
(xiv) Monitoring system for Tigers’ Intensive
Protection and Ecological Status (M-
STrIPES) monitoring.
(xv) E-surveillance.”
55. Clause 16.21 of the 2012 Guidelines deals with
establishment of Tiger Safari, interpretation and awareness
centres in buffer and fringe areas, which reads thus:
“16.21 Establishment of Tiger Safari,
interpretation and awareness centres under
the existing component of ‘co-existence
agenda in buffer and fringe areas’, and
management of such centres through the
respective Panchayati Raj Institutions
(creation – Non-Recurring; maintenance –
Recurring).
The Tiger Safaris may be established in the
buffer areas of tiger reserves which experience
immense tourist influx in the core/critical tiger65
habitat for viewing tiger. The interpretation and
awareness centres would also be supported in
such buffer areas to foster awareness for
eliciting public support. The management of
such centres would be through the respective
Panchayati Raj (PR) institutions.”
56. In 2016, the NTCA notified the Guidelines to Establish Tiger
Safaris in Buffer and Fringe Areas of the Tiger Reserves
(hereinafter referred to as “2016 Guidelines”). These guidelines
provide for the basic criteria, and procedure required to be
followed in the buffer and fringe areas of tiger reserves for dealing
with the establishment, management, and administration of the
‘Tiger Safaris’ after following the due procedure prescribed under
the law and the 2012 Guidelines. Clause 8 thereof provides that,
tourism activities in the tiger reserves are regulated by the
normative guidelines on tourism issued by the NTCA as well as by
the prescriptions on eco-tourism as contained in the TCPs of the
tiger reserves. It provides that the last three years’ average
visitation will be taken into consideration while determining the
need for a tiger safari. It provides that, if the carrying capacity is
100% utilized, then a proposal for establishing a tiger safari can
be placed before the NTCA.
66
57. Clause 9 of the 2016 guidelines is very important. It provides
that no tiger shall be obtained from the zoo exhibit. Wild tigers
that are from the same landscape as that of the area where the
tiger safari is established, falling under the categories of (a)
injured tigers (after suitable treatment); (b) conflict tigers; and (c)
orphaned tiger cubs which are unfit for re-wilding and release into
the wild shall be selected. It further provides that no visibly
injured or incapacitated tiger shall be put on the safari. It further
provides that recovered/treated animals shall be put on display
only after assessment by the NTCA. Further, no healthy wild tiger
or any other animal shall be sourced from the wild as per
provisions of the National Zoo Policy.
58. Clause 10 of the 2016 guidelines further provides that the
location of the tiger safari shall be identified preferably in the
buffer (not falling in notified National Parks and/or Wildlife
Sanctuary)/peripheral area of the tiger reserve based on the
recommendations of a committee comprising of members from the
NTCA, CZA, Forest Department of State concerned, an
experienced tiger biologist/scientist/conservationist and a
representative, nominated by the Chief Wildlife Warden of the
67
concerned State. It also provides that tiger dispersal routes shall
be avoided in all circumstances. The area of a Safari Park should
be as large as possible; however, the minimum area of a tiger
safari should be 40 hectares, extendable as per requirements.
The topography for the safari should be undulating and well-
drained, without steep slopes. The vegetation maintained in the
Safari Park should be indigenous. The density of flora should be
regulated according to needs, and to provide a naturalistic effect.
It should provide shelters and withdrawal areas for animals. It
provides that the entire safari area should be surrounded by a
suitable peripheral chain link fence. The said chain link fence
should be of a minimum height of 5 meters in case of large
carnivores like tigers with a suitable both way –overhang at the
top or as prescribed by the CZA from time to time. It also provides
that a buffer zone (strip) of about 5 meters width be provided
around the fenced area. It also provides for the erection of a watch
tower of about 5 meters in height. It also provides for the
sensitization of visitors at ‘Visitor Centres’. It provides that
visitors shall enter the park in eco-friendly vehicles which run on
solar and/or battery power only. There are various other details
68
with regard to layout of roads, hours of the day during which
vehicles should be permitted, the equipment to be provided,
veterinary care, education. It also provides for the frequency of
vehicles entering the Safari Park. It further restricts taking the
vehicles near the animals and to maintain a distance of at least
10 meters. It also provides for waste disposal, monitoring, and
supervision.
59. Clause 14 of the 2016 guidelines provides for management
of the tiger safari based on prescriptions of a Master Plan which
shall be formulated as per guidelines of the CZA and duly
approved by the said Authority. It further provides that care
should be taken to harmonize the Master Plan with prescriptions
of the TCP of the area concerned.
60. The NTCA again in 2019 notified guidelines to establish tiger
safaris in buffer and fringe areas of tiger reserves. Most of the
guidelines are similar to those contained in the 2016 guidelines.
In some areas, elaborate details have been provided. The only
substantial distinction is about clause 9, which reads thus:
“9. Selection of Animal: The selection of the
animal shall be done in conformity of section
38I of Wildlife (Protection) Act, 1972 after due
approval of the Central Zoo Authority (CZA).”69
61. It will further be relevant to note that the NTCA has notified
the Standard Operating Procedure to deal with orphaned,
abandoned tiger cubs and old/injured tigers in wild (hereinafter
referred to as “SOP”). The said SOP provides detailed procedures
as to what are the causes and circumstances leading to
orphaned/abandoned tiger cubs and old/injured tigers in the
wild. It provides a procedure for establishing the identity of the
tigresses/cub(s)/old/injured/sick tigers by comparing camera
trap photographs with the National Repository of Camera Trap
Photographs of Tigers. It provides for the collection of recent
cattle/livestock depredation or human injury/fatal encounter
data, if any, in the area. It further deals with how such cubs and
tigers are to be dealt with.
62. The said SOP provides that, rearing of the tiger cubs should
be in the in situ enclosure for wilding/re-wilding towards
subsequent release in the wild. It provides a detailed procedure
as to how the in situ enclosure should be constructed in order to
avoid the ‘Pavlovian’ conditioning of tiger cubs in the in situ
enclosure and the release of natural prey animals within the tiger
enclosure with minimum sound. It also provides for maintaining
70
of a record of the kills made by the tiger cubs. It provides that the
tiger cubs should be reared in the in situ enclosure for a minimum
of two years, and each cub should have a successful kill record of
at least 50 prey animals. It provides that the tiger cubs which have
a successful kill record may be released in the wild in consultation
with the NTCA after radio collaring, to a suitable, productive
habitat within the same landscape, while keeping in mind the land
tenure dynamics of tigers or the presence of human settlements
in the new area. The SOP also deals with ‘Hard’ release of tiger
cubs in the wild.
63. The SOP also provides for the rehabilitation of the
sick/injured/old tigers in zoos. A perusal of the SOP would reveal
that only in extreme situations, where an old/injured tiger may
create a human-tiger interface problem leading to
livestock/human depredation; such tigers should be rehabilitated
in a recognized zoo.
64. The SOP also, in detail, has provisions with regard to the
design of cages/transportation protocol; design and related
details of the in situ enclosure; housekeeping details for the
rearing of abandoned/orphaned newborn tiger cubs; and
71
safeguards for the field staff.
65. It is further relevant to note that, the Ministry of
Environment and Forests, Department of Environment, Forests &
Wildlife, Union of India has issued a Resolution dated 7th
December 1988, thereby providing for the National Forest Policy,
1988. Para 4.5 of the said Policy deals with ‘Wildlife
Conservation’, which reads thus:
“4.5 Wildlife Conservation
Forest Management should take special care of
the needs of wildlife conservation, and forest
management plans should include
prescriptions for this purpose. It is specially
essential to provide for “corridors” linking the
protected area in order to maintain genetic
continuity between artificially separated sub-
sections of migrant wildlife.”
66. It is further relevant to note that the National Wildlife Action
Plan, 2017-2031 also emphasizes on the concept of protection of
the wildlife as a whole, beyond protected areas to protect the
integrity of the Tiger Reserve. The relevant portion of the Plan is
reproduced herein below:
“Landscape Level Approach for Wildlife
Conservation
Overview and Objectives-
1. It is increasingly recognized that wildlife
conservation has to go beyond72
Protected Areas (PAs) to the larger
landscapes in which these are embedded.
A landscape is defined as ‘a large tract of
land constituted by a mosaic of interacting
land uses with people and the impacts of
their activities as the cornerstone of its
management.’ Landscape allows
ecosystem level conservation actions at
the existing internal smaller nested
spatial scales of management/
administration such as PAs and
territorial forest divisions as well as
larger units to achieve conservation
goals at the largest spatial scale
possible in practical terms.
2. Landscape level conservation of species
must be seen as maintaining or enhancing
genetic exchanges between
metapopulations and significantly
improving the prospects of their long term
persistence. Therefore, the plans must
address species loss in the short-term and
the reasons for such depletions in the long
run.
xxx xxx xxx
6. Further, conservation of wildlife can
not be seen isolated from the whole
development of the region or
landscape. Local governance systems,
local land use patterns and land use
systems, ecosystem-interfaces and
socio-economic circumstances are
mutually intertwined at the landscape
level. Therefore, a mosaic approach to
landscape planning needs to be
developed in partnership with other
agencies and stakeholders.”
73
[emphasis supplied]
67. It is thus amply clear that the National Wild Life Action Plan
also recognizes the necessity of wildlife conservation beyond the
protected areas. It states that the landscape allows ecosystem
level conservation actions at the existing internal smaller nested
spatial scales of management/administration such as protected
areas and territorial forest divisions as well as larger units to
achieve conservation goals at the largest spatial scale possible in
practical terms. It further states that the conservation of wildlife
cannot be seen to be isolated from the whole development of the
region or landscape. It states that the local governance systems,
local land use patterns and land use systems, ecosystem-
interfaces and socio-economic circumstances are mutually
intertwined at the landscape level. It emphasizes that a mosaic
approach to landscape planning needs to be developed in
partnership with other agencies and stakeholders.
V. CONSIDERATION
68. This Court had an occasion to consider an issue with regard
to environmental justice in the case of T.N. Godavarman
74
Thirumulpad v. Union of India and others2, wherein this Court
held thus:
“17. Environmental justice could be
achieved only if we drift away from the
principle of anthropocentric to ecocentric.
Many of our principles like sustainable
development, polluter-pays principle,
intergenerational equity have their roots in
anthropocentric principles. Anthropocentrism
is always human interest focussed and that
non-human has only instrumental value to
humans. In other words, humans take
precedence and human responsibilities to non-
human based benefits to humans. Ecocentrism
is nature-centred where humans are part of
nature and non-humans have intrinsic value. In
other words, human interest does not take
automatic precedence and humans have
obligations to non-humans independently of
human interest. Ecocentrism is therefore life-
centred, nature-centred where nature
includes both humans and non-humans. The
National Wildlife Action Plan 2002-2012 and the
Centrally Sponsored Integrated Development of
Wildlife Habitats Scheme, 2009 are centred on
the principle of ecocentrism.”
[emphasis supplied]
69. It could thus be seen that this Court has held that, to achieve
environmental justice, the approach of anthropocentrism i.e.
human interest focused and that non-human has only
instrumental value to humans will have to be avoided. It has been
2
(2012) 3 SCC 277=2012 INSC 81
75
held that ecocentrism i.e. nature centered where humans are a
part of nature and non-humans have intrinsic value will have to
be adopted. It has been held that human interest does not take
automatic precedence and humans have obligations to non-
humans independently of human interest. It has been held that
the National Wildlife Action Plan 2002-2012 and the Centrally
Sponsored Integrated Development of Wildlife Habitats Scheme,
2009 are centred on the principle of ecocentrism.
70. This Court again in the case of Centre for Environmental
Law, World Wide Fund-India v. Union of India and others3,
following the earlier judgments, observed thus:
“44. The scope of the Centrally-sponsored
scheme was examined in T.N. Godavarman
Thirumulpad v. Union of India [(2012) 3 SCC
277] (Wild Buffalo case) and this Court directed
implementation of that scheme in the State of
Chhattisgarh. The Centrally-sponsored
scheme, as already indicated, specifically
refers to the Asiatic lions as a critically
endangered species and highlighted the
necessity for a recovery programme to
ensure the long-term conservation of lions.
NWAP, 2002-2016 and the Centrally-
sponsored scheme, 2009 relating to
integrated development of wildlife habitats
are schemes which have statutory status
and as held in Lafarge case [Lafarge Umiam3 (2013) 8 SCC 234=2013 INSC 254
76
Mining (P) Ltd. v. Union of India, (2011) 7
SCC 338] and have to be implemented in
their letter and spirit. While giving effect to
the various provisions of the Wildlife (Protection)
Act, the Centrally-sponsored scheme, 2009, the
NWAP, 2002-2016 our approach should be
ecocentric and not anthropocentric.”
[emphasis supplied]
71. It could thus be seen that, this Court held that the National
Wildlife Action Plan (NWAP), 2002-2016, and the Centrally-
sponsored scheme, 2009 related to the integrated development of
wildlife habitats are schemes that have a statutory status, and
will have to be implemented in letter and spirit.
72. It can further be seen that, this Court has emphasized on
the importance of sustainable development, i.e., balancing the
rights of the citizens and the concern for the environmental and
ecological issues.
73. In this respect, it will be appropriate to refer to Articles 48-A
and 51-A(g) of the Constitution, which read thus:
“48-A. Protection and improvement of
environment and safeguarding of forests
and wildlife.—The State shall endeavour to
protect and improve the environment and to
safeguard the forests and wildlife of the country.
***
77
51-A. Fundamental duties.—It shall be the
duty of every citizen of India—
***
(g) to protect and improve the natural
environment including forests, lakes, rivers and
wildlife, and to have compassion for living
creatures;”
74. In Vellore Citizens’ Welfare Forum v. Union of India and
others4, this Court observed thus:
“10. The traditional concept that development
and ecology are opposed to each other is no
longer acceptable. “Sustainable Development” is
the answer. In the international sphere,
“Sustainable Development” as a concept came
to be known for the first time in the Stockholm
Declaration of 1972. Thereafter, in 1987 the
concept was given a definite shape by the World
Commission on Environment and Development
in its report called “Our Common Future”. The
Commission was chaired by the then Prime
Minister of Norway, Ms G.H. Brundtland and as
such the report is popularly known as
“Brundtland Report”. In 1991 the World
Conservation Union, United Nations
Environment Programme and Worldwide Fund
for Nature, jointly came out with a document
called “Caring for the Earth” which is a strategy
for sustainable living. Finally, came the Earth
Summit held in June 1992 at Rio which saw the
largest gathering of world leaders ever in
history—deliberating and chalking out a
blueprint for the survival of the planet. Among
the tangible achievements of the Rio Conference
was the signing of two conventions, one on
biological diversity and another on climate4 (1996) 5 SCC 647=1996 INSC 952
78
change. These conventions were signed by 153
nations. The delegates also approved by
consensus three non-binding documents,
namely, a Statement on Forestry Principles, a
declaration of principles on environmental
policy and development initiatives and Agenda
21, a programme of action into the next century
in areas like poverty, population and pollution.
During the two decades from Stockholm to Rio
“Sustainable Development” has come to be
accepted as a viable concept to eradicate
poverty and improve the quality of human life
while living within the carrying capacity of the
supporting ecosystems. “Sustainable
Development” as defined by the Brundtland
Report means “Development that meets the
needs of the present without compromising the
ability of the future generations to meet their
own needs”. We have no hesitation in holding
that “Sustainable Development” as a balancing
concept between ecology and development has
been accepted as a part of the customary
international law though its salient features
have yet to be finalised by the international law
jurists.
***
16. The constitutional and statutory provisions
protect a person’s right to fresh air, clean water
and pollution-free environment, but the source
of the right is the inalienable common law right
of clean environment. It would be useful to
quote a paragraph from Blackstone’s
commentaries on the Laws of England
(Commentaries on the Laws of England of Sir
William Blackstone) Vol. III, Fourth Edn.
published in 1876. Chapter XIII, “Of Nuisance”
depicts the law on the subject in the following
words:
‘Also, if a person keeps his hogs, or other
noisome animals, or allows filth to79
accumulate on his premises, so near the
house of another, that the stench
incommodes him and makes the air
unwholesome, this is an injurious nuisance,
as it tends to deprive him of the use and
benefit of his house. A like injury is, if one’s
neighbour sets up and exercises any
offensive trade; as a tanner’s, a tallow-
chandler’s, or the like; for though these are
lawful and necessary trades, yet they should
be exercised in remote places; for the rule is,
“sic utere tuo, ut alienum non leadas”; this
therefore is an actionable nuisance. And on a
similar principle a constant ringing of bells in
one’s immediate neighbourhood may be a
nuisance.
… With regard to other corporeal
hereditaments; it is a nuisance to stop or divert
water that used to run to another’s meadow or
mill; to corrupt or poison a watercourse, by
erecting a dye-house or a lime-pit, for the use of
trade, in the upper part of the stream; to pollute
a pond, from which another is entitled to water
his cattle; to obstruct a drain; or in short to do
any act in common property, that in its
consequences must necessarily tend to the
prejudice of one’s neighbour. So closely does the
law of England enforce that excellent rule of
gospel-morality, of “doing to others, as we would
they should do unto ourselves”.’ ””
75. Further in the case of Intellectuals Forum,
Tirupathi v. State of A.P. and others5, this Court observed
thus:
5 (2006) 3 SCC 549=2006 INSC 101
80
“84. The world has reached a level of growth in
the 21st century as never before envisaged.
While the crisis of economic growth is still on,
the key question which often arises and the
courts are asked to adjudicate upon is whether
economic growth can supersede the concern for
environmental protection and whether
sustainable development which can be achieved
only by way of protecting the environment and
conserving the natural resources for the benefit
of humanity and future generations could be
ignored in the garb of economic growth or
compelling human necessity. The growth and
development process are terms without any
content, without an inkling as to the substance
of their end results. This inevitably leads us to
the conception of growth and development,
which sustains from one generation to the next
in order to secure “our common future”. In
pursuit of development, focus has to be on
sustainability of development and policies
towards that end have to be earnestly
formulated and sincerely observed. As Prof.
Weiss puts it, “conservation, however, always
takes a back seat in times of economic stress”.
It is now an accepted social principle that all
human beings have a fundamental right to a
healthy environment, commensurate with their
well-being, coupled with a corresponding duty
of ensuring that resources are conserved and
preserved in such a way that present as well as
the future generations are aware of them
equally.”
76. In Indian Council for Enviro-Legal Action v. Union of
India and others6, this Court observed thus:
6 (1996) 5 SCC 281=1996 INSC 543
81
“41. With rapid industrialisation taking place,
there is an increasing threat to the maintenance
of the ecological balance. The general public is
becoming aware of the need to protect
environment. Even though, laws have been
passed for the protection of environment, the
enforcement of the same has been tardy, to say
the least. With the governmental authorities not
showing any concern with the enforcement of
the said Acts, and with the development taking
place for personal gains at the expense of
environment and with disregard of the
mandatory provisions of law, some public-
spirited persons have been initiating public
interest litigations. The legal position relating to
the exercise of jurisdiction by the courts for
preventing environmental degradation and
thereby, seeking to protect the fundamental
rights of the citizens, is now well settled by
various decisions of this Court. The primary
effort of the court, while dealing with the
environmental-related issues, is to see that the
enforcement agencies, whether it be the State or
any other authority, take effective steps for the
enforcement of the laws. The courts, in a way,
act as the guardian of the people’s fundamental
rights but in regard to many technical matters,
the courts may not be fully equipped. Perforce,
it has to rely on outside agencies for reports and
recommendations whereupon orders have been
passed from time to time. Even though, it is not
the function of the court to see the day-to-day
enforcement of the law, that being the function
of the Executive, but because of the non-
functioning of the enforcement agencies, the
courts as of necessity have had to pass orders
directing the enforcement agencies to
implement the law.”
77. Emphasizing on the concern for environmental and
82
ecological protection, the Courts have recognised the importance
of sustainable development. Development which can be achieved
only by way of protecting the environment and conserving the
natural resources for the benefit of humanity and future
generations. This Court holds that, it is now an accepted social
principle that all human beings have a fundamental right to a
healthy environment, commensurate with their well-being,
coupled with a corresponding duty of ensuring that resources are
conserved and preserved in such a way that the present as well
as future generations will be aware of them equally. This Court
has further held that, the primary effort of the court while dealing
with the environment-related issues, is to see that the
enforcement agencies, whether it be the State or any other
authority, take effective steps for the enforcement of the laws. It
has been held that the courts, in a way, act as the guardian of the
people’s fundamental rights. This Court has observed that it is
not the function of the court to see the day-to-day enforcement of
the law; that being the function of the Executive, but because of
the non-functioning of the enforcement agencies, the courts out
of necessity have had to pass orders directing the enforcement
83
agencies to implement the law. In the recent judgments of this
Court in the cases of Resident’s Welfare Association and
another v. Union Territory of Chandigarh and others7, State
of Himachal Pradesh and others v. Yogendera Mohan
Sengupta and another8 and State of Uttar Pradesh and
others v. Uday Education and Welfare Trust and others9, to
which one of us (B.R. Gavai, J.) was a party, this Court has also
emphasized on the principle of sustainable development.
(a) Consideration as to whether Tiger Safaris and Zoos are
on the same footing or not.
78. In this background, we will have to consider the question as
to whether the ‘zoo’ as defined under Section 2(39) and dealt with
under Chapter IVA of the WLP Act and the ‘Tiger Safaris’ as
conceptualized by the NTCA would stand on a same footing or not.
79. We have already reproduced the definition of ‘zoo’ as defined
under Section 2(39) of the WLP Act. The definition of ‘zoo’ itself
would show that it is meant to be an establishment, whether
stationary or mobile, where captive animals are kept for exhibiting
to the public or ex-situ conservation and include a circus and off-
7 (2023) 8 SCC 643=2023 INSC 22
8 2024 SCC OnLine SC 36=2024 INSC 30
9
2022 SCC OnLine SC 1469 = 2022 INSC 465
84
exhibit facilities such as rescue centres and conservation breeding
centres. However, it does not include the establishment of a
licensed dealer in captive animals. It could thus be seen that
though a ‘zoo’ as contemplated under Chapter IVA of the WLP Act
also deals with conservation, it emphasizes on ex situ
conservation.
80. Proviso to Section 33(a) of the WLP Act specifically prohibits
any construction of tourist lodges, including Government lodges
for commercial purposes, hotels, zoos and safari parks inside a
sanctuary except with the prior approval of the National Board. It
could thus be seen that, insofar as the area which is covered
under a sanctuary is concerned, there will be no difficulty to hold
that a safari cannot be constructed within the said area unless
there is a prior approval of the National Board. However, the
question that falls for consideration in the present case is, as to
whether a ‘Tiger Safari’ would be permissible in the buffer zone or
not.
81. For the first time, a ‘safari’ was defined in the ‘Guidelines for
Safari Parks which are Working either as Zoos or as Extension to
Zoos, 1996’. It reads thus:
85
“Safaries are specialized zoos where the captive
animals are housed in any large naturalistic
enclosures to and the visitors are allowed to
enter the enclosure to view the animals in a
mechanized vehicle or a pre-determined route
from close quarters.”
82. It could thus be seen from the title of the said Guidelines
itself that the same would be applicable only insofar as safari
parks which are working either as zoos or as an extension to zoos.
83. Undisputedly, the ‘Tiger Safaris’ which are conceptualized by
the NTCA are not for the parks which are working either as zoos
or as an extension to zoos.
84. As already discussed herein above, the entire thrust of the
WLP Act is on the conservation, protection, and management of
wildlife. Noticing the importance of tigers as a centre of the eco-
system, Chapter IVB of the WLP Act, which deals with NTCA, was
inserted by the Wild Life (Protection) Amendment Act, 2006 (No.
39 of 2006) with effect from 4th September 2006. A perusal of
Chapter IVB would reveal that it emphasizes on the conservation
and protection of tigers and the management of the ‘Tiger
Reserves’. A very important role has been entrusted to the NTCA
which is to be chaired by the Minister in charge of the Ministry of
Environment and Forests insofar as the conservation and
86
protection of tigers and the management of ‘Tiger Reserves’ is
concerned.
85. As already discussed herein above, clause (c) of Section 38-
O of the WLP Act requires the NTCA to lay down normative
standards for tourism activities and guidelines for project tiger
from time to time for tiger conservation in the buffer and core area
of tiger reserves and ensure their due compliance. Clause (g)
thereof requires the NTCA to ensure that the tiger reserves and
areas linking one protected area or tiger reserve with another
protected area or tiger reserve are not diverted for ecologically
unsustainable uses, except in public interest and that too, with
the approval of the National Board for Wild Life and on the advice
of the Tiger Conservation Authority.
86. It is to be noted that after the State Government, on the
recommendation of the NTCA, notifies an area as a ‘Tiger Reserve’,
the restriction as provided under the provisions of sub-section (2)
of Section 18, sub-sections (2), (3) and (4) of Section 27, Sections
30, 32 and clauses (b) and (c) of Section 33 of this Act shall, as far
as may be, apply in relation to a ‘Tiger Reserve’ as they apply in
relation to a sanctuary.
87
87. Section 38XA of the WLP Act specifically provides that the
provisions contained in the said Chapter shall be in addition to,
and not in derogation of, the provisions relating to sanctuaries
and National Parks. As such, it could be seen that the legislature
has put ‘Tiger Reserve’ on a higher pedestal than the sanctuaries
and the National Parks.
88. Sub-section (4) of Section 38V of the WLP Act requires the
State Government, while preparing a TCP, to ensure the
agricultural, livelihood, developmental and other interests of the
people living in tiger bearing forests or a tiger reserve.
Explanation thereto divides the ‘Tiger Reserve’ into two areas, i.e.,
(i) core or critical tiger habitat areas of National Parks and
sanctuaries, which are required to be kept as inviolate for the
purposes of tiger conservation, without affecting the rights of the
Scheduled Tribes or such other forest dwellers; and (ii) buffer or
peripheral area, where a lesser degree of habitat protection is
required to ensure the integrity of the critical tiger habitat. While
doing so, the State Government is required to ensure adequate
dispersal for the tiger species, which aims at promoting co-
existence between wildlife and human activity with due
88
recognition of the livelihood, developmental, social and cultural
rights of the local people, wherein the limits of such areas are
determined based on the scientific and objective criteria in
consultation with the concerned Gram Sabha and an Expert
Committee constituted for the purpose are to be provided.
89. It is thus clear that, even in buffer or peripheral areas,
though a lesser degree of habitat protection than the core area is
to be provided, however, the provisions are required to be made to
ensure the integrity of the critical tiger habitat with adequate
dispersal for tiger species. An effort has to be made to promote
co-existence between wildlife and human activity with due
recognition of the livelihood, developmental, social and cultural
rights.
90. It is further to be noted that the National Forest Policy, 1988
also emphasizes the necessity to provide for “corridors” linking the
protected areas to maintain genetic continuity between artificially
separated sub-sections of migrant wildlife. Even the National
Wildlife Action Plan 2017-31 emphasizes on the same. As held
by this Court in the case of Centre for Environmental Law,
World Wide Fund-India (supra), this Policy has a statutory
89
flavor.
91. As held by this Court in the case of T.N. Godavarman
Thirumulpad v. Union of India and others (supra), the
approach has to be ecocentric and not anthropocentric. The
approach has to be nature-centred where humans are a part of
nature and non-humans have intrinsic value.
92. We will now have to examine as to how the concept of ‘Tiger
Safaris’ came to be introduced.
93. We have already reproduced the relevant part of the
Guidelines for Preparation of Tiger Conservation Plan, 2007. The
said Guidelines show how important is the buffer zone vis-à-vis
the tiger land tenure dynamics. Based on the available research
data, it has been found that the minimum population of tigresses
in breeding age, which is needed to maintain a viable population
of 80-100 tigers (in and around core areas) requires an inviolate
space of 800 -1000 sq. km. It also states that the tiger being an
“umbrella species”, such an area would also ensure viable
populations of other wild animals (co-predators, prey) and forest,
thereby ensuring the ecological viability of the entire area/habitat.
It can also be seen that the buffer areas with forest connectivity
90
are imperative for tiger dynamics since such areas foster sub-
adults, young adults, transients, and old members of the
population. The young adults periodically replace the resident
aging males and females from the source population area. It also
states that the buffer area absorbs the “shock” of poaching
pressure on populations of tigers and other wild animals.
94. It is for the first time, in “the 2012 Guidelines” issued by the
NTCA on 15th October 2012, that the concept of establishment of
the ‘Tiger Safari’ could be found, which has already been
reproduced herein above. The said Guidelines provided that the
‘Tiger Safaris’ may be established in the buffer areas of tiger
reserves which experience immense tourist influx in the
core/critical tiger habitat for viewing tigers. It also provided for
the establishment of interpretation and awareness centres in such
buffer areas to foster awareness for eliciting public support. It
provided that the management of such centres would be through
the respective Panchayati Raj (PR) institutions.
95. Thereafter in 2016, the NTCA issued guidelines to establish
‘Tiger Safaris’ in the buffer and fringe areas of tiger reserves. These
guidelines provided for the basic criteria, and procedure required
91
in the buffer and fringe areas of tiger reserves for dealing with the
establishment, management, and administration of ‘Tiger Safaris’
after following the due procedure prescribed under the law and
the 2012 guidelines as also the CZA guidelines for the
establishment of new zoos under section 38H(1A) of the WLP Act.
Clause 8 of the said Guidelines provides that, if the carrying
capacity is 100% utilized, then a proposal for establishing a ‘Tiger
Safari’ can be placed before the NTCA.
96. Clause 9 of the 2016 guidelines is very important. It
specifically provides that no tiger shall be obtained from a zoo
exhibit. It further provides that wild tigers which are from the
same landscape as that of the area where the tiger safari is
established, would fall under the categories of (a) injured tigers
(after suitable treatment); (b) conflict tigers; and (c) orphaned tiger
cubs which are unfit for re-wilding and release into the wild
should be selected. It further provides that no visibly injured or
incapacitated tiger shall be put in the safari. It further provides
that recovered/treated animals shall be put on display only after
assessment by the NTCA. It further provides that no healthy wild
tiger or any other animal shall be sourced from the wild as per the
92
provisions of the National Zoo Policy.
97. Clause 10 of the 2016 guidelines further provides that the
location of the tiger safari shall be identified preferably in the
buffer (not falling in notified National Parks and/or Wildlife
Sanctuary)/peripheral area of the tiger reserve on the basis of the
recommendations of a committee comprising of members from the
NTCA, CZA, Forest Department of State concerned, an
experienced tiger biologist/scientist/conservationist and a
representative, nominated by the Chief Wildlife Warden of the
concerned State. It further provides that tiger dispersal routes
shall be avoided in all circumstances.
98. However, the NTCA has issued fresh guidelines in November
2019. The 2019 Guidelines are similar to the 2016 Guidelines,
except clause 9, which provides that the selection of the animal
shall be done in conformity with Section 38I of the WLP Act after
due approval of the CZA.
99. It could thus be seen that under the 2016 Guidelines, the
concept of ‘Tiger Safaris’ was mainly for rehabilitation of the
injured tigers (after suitable treatment), conflict tigers, and
orphaned tiger cubs which are unfit for re-wilding and release into
93
the wild. The final authority insofar as selection of the animals is
concerned, vested with the NTCA. It could also be seen that the
said 2016 Guidelines are also consistent with the SOP of the NTCA
to deal with orphaned, abandoned tiger cubs and old/injured
tigers in wild. The concept was changed in the 2019 Guidelines
i.e. animals from zoo will be put in Safari. It provided that the
selection of the animals shall be done in conformity with Section
38I of the WLP Act. The final authority of the selection of animals
is vested with the CZA.
100. We prima facie find no infirmity in the guidelines issued by
the NTCA, i.e., the 2012 Guidelines and the 2016 Guidelines for
establishing the ‘Tiger Safaris’ in the buffer and fringe areas of the
‘Tiger Reserve’. In our view, the said Guidelines emphasizes on
the rehabilitation of injured tigers (after suitable treatment),
conflict tigers, and orphaned tiger cubs which are unfit for re-
wilding and release into the wild. However, the 2019 Guidelines,
departing from the aforesaid purpose, provide for sourcing of
animals from zoos in the Tiger Safaris. In our view, this would be
totally contrary to the purpose of the Tiger Conservation.
Similarly, the vesting of final authority in the CZA and not in the
94
NTCA, in our view, is not in tune with the emphasis on tiger
conservation as provided under Chapter IVB of the WLP Act. We
are also of the view that since undertaking of establishment of
such a ‘Tiger Safari’ would be basically for the ‘in-situ’
conservation and protection of the tiger, it is the NTCA that shall
have the final authority. No doubt that the CZA can be taken on
board so that it can render its expertise in the management of
such ‘Safaris’.
101. We also find that, a reading of the provisions contained in
the proviso to Section 33(a) and the provisions contained in the
Explanation (ii) of sub-section 4 of Section 38V of the WLP Act
would reveal that, although it will not be permissible to establish
a ‘Tiger Safari’ in a core or critical tiger habitat area without
obtaining the prior approval of the National Board, such an
activity would be permissible in the buffer or peripheral area.
102. As already discussed herein above, while preparing a TCP,
the State Government is required to ensure that the agricultural,
livelihood, developmental, and other interests of the people living
in tiger bearing forests or a tiger reserve are taken care of.
103. Undisputedly, it may not be out of place to mention that the
95
establishment of such ‘safaris’ in the buffer zone would generate
employment for the local people and promote co-existence
between wildlife and human activity. However, we are of the
considered view that such a ‘safari’ can be established only for the
purposes specified in clause 9 of the 2016 Guidelines and not as
per the 2019 Guidelines.
(b) Whether establishment of a ‘Tiger Safari’ at Pakhrau is
legal or not.
104. We will now have to consider whether the establishment of
the ‘Tiger Safari’ at Pakhrau is legal or not.
105. TCP in respect of the Corbett Tiger Reserve Core Zone for the
period 2012-13 to 2021-2022 was submitted to the NTCA on 27th
January 2015. The said TCP has been approved by the NTCA on
4th March 2015.
106. It will be apposite to refer to the relevant portion of clause
13.1.2 of the said TCP, which reads thus:
“There is also need to develop a Rescue Centre
cum Tiger Safari in the buffer area of CTR so as
to provide an easy option for rescue and
rehabilitation of injured and/or infirm or
problem tigers and to provide opportunities for
visitors to see tigers up close in a near natural
controlled environment.”
107. It could thus be seen that, the TCP also provided for
96
developing a Rescue Centre-cum-Tiger Safari to provide an easyoption for the rescue and rehabilitation of the injured and/or
infirm or problem tigers and also to provide an opportunity for
visitors to see tigers up close and in a near-natural controlled
environment.
108. It will be relevant to refer to clause J of the said TCP, which
reads thus:
“J. Exploring the possibility of a Tiger Safari:
Though Corbett Tiger Reserve is known for
its tigers and it attracts lots of tourists, many of
them could not see tiger and they return with
heavy hearts. It is a fact that maximum tourists
are only interested with the sighting of tigers.
Although the park administration is trying its
best to educate and aware tourists to enjoy the
breath taking landscape with wildlife such as
elephants, deer and crocodiles, casual tourists
always hunt for sighting of a tiger. At this point
the recent guideline enacted by NTCA for setting
up of a ‘Tiger Safari’ in the buffer area to divert
casual tourists from the tourism zone which will
ultimately benefit the habitat from unnecessary
pressure from growing tourists. The tiger safari
will generate huge revenue which will enrich the
‘Tiger Conservation Foundation of CTR’ and
ultimately the fringe villagers. A detail proposal
will be prepared as per the guidelines of NTCA
and CZA for funding by NTCA. There is a strong
possibility of developing such a safari in
Karnashram area of Lansdowne Forest
Division.”97
109. The TCP takes into consideration the concept of diversion of
casual tourists from the tourism zone to the ‘Tiger Safari’ in the
buffer zone. It also states that this will ultimately benefit the
habitat from unnecessary pressure from the growing tourists. It
states that the ‘Tiger Safari’ will generate huge revenue which will
enrich the ‘Tiger Conservation Foundation of CTR’ and ultimately
the fringe villages. It also proposed a site for a ‘Tiger Safari’ at
Karnashram area of Lansdowne Forest Division.
110. A perusal of the materials placed on record would reveal that
the NTCA vide its order dated 5th June 2015, had granted an in-
principal approval for establishment of the ‘Tiger Safari’ in
Pakhrau. The CZA, vide order dated 12th February 2019,
conveyed its approval on the conditions stipulated therein. The
‘Tiger Safari’ project, therefore, was approved by the CZA. Since
at the relevant time, ‘Tiger Safari’ was considered as a ‘part forest
and part non-forestry’ activity, an in-principal approval was
granted by the Government of India under the Forest
Conservation Act on 30th October 2020 for the Forest Clearance
of 15% of the area. The Stage-I clearance was granted on 30th
October 2020 and the Stage II clearance was granted on 10th
98
September 2021.
111. It could be seen that, the location of the ‘Tiger Safari’ has not
been identified as per clause 10 of the 2016 Guidelines which
requires recommendations of the Committee comprising of the
members from (i) NTCA, (ii) CZA, (iii) Forest Department of
concerned State, (iv) an experienced tiger
biologist/scientist/conservationist, and (v) a representative,
nominated by the Chief Wildlife Warden of the concerned State.
112. From the record, it does not appear that such a Committee
was constituted for the purpose of determining the location of the
‘Tiger Safari’ at Pakhrau. However, since there are approvals from
the NTCA and the CZA and since the proposal for the
establishment of ‘Tiger Safari’ was submitted by the Forest
Department of the State, and since the Chief Wildlife Warden was
also associated with identification of the location, we find that,
though technically there will be non-compliance with the
requirement of clause 10 of the 2016 Guidelines; in fact, since
most of the authorities mentioned therein are ad idem, we do not
wish to interfere with the decision to establish the ‘Tiger Safari’ at
Pakhrau.
99
113. We also place on record that Shri Anup Malik, IFS, PCCF
(HoFF), Uttarakhand, and Dr. Samir Sinha, IFS, PCCF (Wildlife) &
Chief Wildlife Warden, Uttarakhand, who were present in the
Court during the hearing, have informed the Court that 80% of
the work of the ‘Tiger Safari’ is complete. It is further informed
that there are many tigers, who after their treatment are waiting
in the rescue centre for being rehabilitated in the ‘Safari’. It is
also informed that the location of the ‘Tiger Safari’ is at the edge
of the buffer zone, abutting the farmlands of the villagers. It is also
informed that the topography of Karnashram area of Lansdowne
Forest Division was not found suitable for the ‘Tiger Safari’ due to
its terrain and the site at Pakhrau was found to be suitable. In
any case, the concerned authorities, who have expertise in the
matter, have approved the said site at Pakhrau.
114. In these peculiar facts, we are inclined to approve the
establishment of the ‘Tiger Safari’ at Pakhrau. However, we find
that when the TCP of 2015 itself provided for the establishment of
a Rescue Centre-cum-Tiger Safari at a nearby place, there appears
to be no logic for establishing a rescue centre at another place.
We therefore find that it will be appropriate that the State of
100
Uttarakhand is directed to also relocate the rescue centre nearby
the ‘Tiger Safari’. At the same time, it will also be necessary to
issue directions that, while undertaking construction of these
‘Tiger Safaris’, the provisions of the 2016 Guidelines are
scrupulously followed. We also propose to issue further directions
in this regard, in the operative part of the judgment. The
directions which would be issued by us would also be applicable
to the existing safaris including the Pakhrau Tiger Safari.
(c) Illegal construction and felling of trees
115. The next question that requires consideration is with regard
to the illegal construction carried out in the Corbett Tiger Reserve
and the illegal felling of trees for the said purpose.
116. The Corbett National Park is one of the oldest parks in the
country. It was declared a National Park by the United Provinces
National Park Act, 1935. After the launch of ‘Project Tiger’ and the
amendment to the WLP Act in the year 2006, which inserted
Chapter IVB, a Tiger Reserve admeasuring 1,288.31 sq. km. was
notified by the Government of Uttarakhand by notification dated
26th February 2010, issued under Section 38V(1). Out of this
1,288.31 sq. km., 821.99 sq. km. has been declared as the core
101
critical Tiger Habitat. Further, out of this 821.99 sq. km., 520.82
sq. km. forms part of the Corbett National Park, and 301.17 sq.
km. of the Sonanadi Wildlife Sanctuary. The remaining reserved
forest to the extent of 466.32 sq. km is a buffer area constituting
306.90 sq. km. in the Kalagarh Forest Division and 159.4 sq. km.
in the Ram Nagar Forest Division.
117. The forests of the Corbett Tiger Reserve form an essential
link corridor between Corbett and Rajaji National Park through
the Rawasana – Sonanadi Corridor in the Lansdowne Forest
Division.
118. The importance of the Corbett National Park has been
captured in the “Status of Tigers, Co-predators & Prey in India” in
the following words:
“Corbett Tiger Reserve is the largest source
population for tigers in Shivalik-Gangetic
landscape and responsible for the remarkable
recovery of tiger population in this landscape.
The corridors connecting Corbett with the
surrounding forest divisions and protected
areas are crucial for the long-term survival of
this metapopulation.
xxx xxx xxx
With a high ungulate biomass in the park
Corbett Tiger Reserve maintains a high tiger
density acting as a source of dispersing tigers to102
neighbouring protected areas (Lansdowne, Terai
West, Amangarh and Ramnagar Forest Division)
and is therefore of great importance for tiger and
wildlife conservation in this landscape. Corbett
Tiger Reserve has the largest tiger population in
any single Protected Area in the world.”
119. The Fifth Cycle of the ‘Management Effectiveness Evaluation
of Tiger Reserves in India’ was released in the year 2023 based on
the survey conducted in the year 2022. Though this evaluation
gives a good rating to the Corbett Tiger Reserve, yet certain
weaknesses have been pointed out. The Indian State of Forest
Report 2021 (ISFR 21) suggests that the forest cover in the Corbett
Tiger Reserve in 2011 was VDF 330.88 sq. km.; MDF 825 sq. km.;
and OF 91.61 sq.km. and that it has undergone changes, as found
in the year 2021. The report also says that there has been a loss
of 22 sq. km. of forest cover in the Tiger Reserve. It further noticed
that the human-tiger conflict in the landscape is also increasing,
and the loss of tree cover has resulted in loss of habitat and
increased conflict with humans. It is pointed out that, as of now
no Eco Sensitive Zone (“ESZ” for short) has been notified for the
Corbett Tigre Reserve. It suggested that in the absence of such
notification, the activities in the 10 km. deemed ESZ must be
regulated.
103
120. It further points out that the building materials were found
stored for remodeling private resorts along the Ramnagar-
Ranikhet highway. It recommended that such activities must be
regulated. It also points out that the Ramnagar-Ranikhet
highway is persistently acting as a barrier for many species,
including the elephant. It suggested that these roads have to be
made eco-friendly according to the guidelines.
121. Report No. 3 of 2023 in Application No.1558 of 2021 in Writ
Petition (Civil) No.202 of 1995 submitted by the CEC has annexed
various reports containing findings of the Committees constituted
under the orders of the High Courts. The CEC has considered the
following:
(i) Findings of the Committee constituted by the NTCA
pursuant to the order dated 23rd August 2021, passed by
the High Court of Delhi in Writ Petition No.8729 of 2021
filed by the applicant-Mr. Gaurav Kumar Bansal;
(ii) Report dated 9th November 2021 filed jointly by PCCF
(General), PCCF (Wildlife) and the Director of the Corbett
National Park before the High Court of Uttarakhand
pursuant to the order of the High Court dated 27 th
104
October 2021 in Writ Petition No.178 of 2021;
(iii) Site Inspection Report of the Regional Office, MoEF&CC,
Dehradun in respect of the illegal felling of trees and illegal
construction of buildings and waterbodies in the Corbett
Tiger Reserve Landscape, Uttarakhand.
(iv) Findings of the Five Member Kapil Joshi Committee
constituted by the Principal Chief Conservator of Forest
(HoFF) vide letter No.948/P.O. dated 27th December 2021
and 1002/P.O. dated 12th January 2022.
(v) Report of FSI dated 20th October 2022 on the felling of
trees in the name of establishment of the Pakhrau Tiger
Safari, Uttarakhand.
122. After considering the aforesaid reports/findings, the CEC
has come to a finding that various irregularities have been
committed in the areas outside the Tiger Safari as well as in the
Pakhrau Tiger Safari. They have been listed as under:
“A. IRREGULARITIES OUTSIDE THE TIGER
SAFARI
a) improvement to Kandi Road over a
length of 1.2 KM by way of raising the
level of the road and construction of
culverts without the approval/
sanction of the competent authority105
and without any provision in the
budget.
b) construction of four buildings each
with 4 rooms at Forest Rest House
(FRH) complex, Pakhrau.
c) construction of four buildings, each
with 4 rooms at Forest Rest House
Complex, Morghatti.
d) construction of a water body each
near Pakhrau FRH and Morghatti
FRH after clearing the tree growth
e) construction of four buildings outside
the Kugadda Forest CAMP in Palean
Range, Kalagarh Forest Division
falling with in the Corbett Tiger
Reserve. These four buildings had
identical building plans similar to
those seen in Morghatti and Pakhrau,
FRH Complex.
f) construction by DFO, Kalagarh of
Saneh Forest Rest House falling in
Lansdowne Forest Division pursuant
to the directions of CCF, Garhwal vide
letter dated 15.09.2021.
g) laying of underground 11 KV
electrical cables between Saneh and
Pakhrau.
The noted works at (a) to (g) above were
being carried out without requisite
administrative and financial approvals of
the competent authority. The works were
being executed solely under the orders of
the DFO, Kalagarh and DFO Kalagarh is
106
not competent to sanction these works.
B. IRREGULARITIES IN PAKHRAU
TIGER SAFARI
a) Illegal felling of estimated 6053 trees
at the proposed Tiger Safari
construction sites in place of 163
permitted to be cut in the FC
clearance granted by MoEF&CC
b) Commencement of construction work
of Pakhrau Tiger Safari even before
getting stage II clearance under FC
Act 1980 and final approval of the
Layout Plans by the Central Zoo
Authority
c) Concrete buildings are being
constructed instead of using bamboo
which has been approved by
MoEF&CC.
d) Additional civil structures are
planned and being built without
approval of the revised plan and
accordingly the estimate has
escalated from Rs.26.81 crores to
Rs.102.11 crores”
123. The aforesaid list of irregularities would reveal that a vast
number of illegal construction activities have been carried out.
Such constructions cannot be completed overnight. Though an
action has been taken in respect of certain officers of the Forest
107
Department, we are of the prima facie view that many other
persons must have been involved in the commission of the said
irregularities. However, since the CBI is conducting the
investigation as per the orders passed by the High Court, we do
not propose to make any comments thereto.
124. It has been categorically stated in the report that CEC was
informed about all the civil structures being constructed in
respect of works at “A” except one building at Kuggada which has
been demolished. It has been stated that one building which has
not been demolished has been used by the Forest Staff as their
camping place because of lack of alternative accommodation. We
are also informed during the hearing that, except for the works
executed at the Pakhrau Tiger Safari site, the contractors who
executed the works without the approval of competent authorities
have not been made any payments and that the contractors have
also not made any claims in this regard.
125. The CEC during the site visit was shown the locations where
the unauthorized buildings once stood but these buildings were
not there at the time of the site visit of CEC as they had been
demolished on the orders of the Director, ‘Project Tiger’.
108
126. The CEC has further noticed that the DFO, Kalagarh who
executed the work illegally had committed similar irregularities
during his earlier postings. It is also noticed that the PCCF &
HoFF and the DIG Police, Vigilance Department had written in
this regard to the Government requesting not to post the said
officer in any sensitive post. The Range Officer posted in Pakhrau
range had earlier worked with Kishan Chand, DFO, Kalagarh
while he was the DFO in the Rajaji Tiger Reserve. Despite the fact
that both these officers were accused of the irregularities that took
place in the Rajaji Tiger Reserve, they were again posted together
in the Kalagarh Forest Division.
127. The CEC also noticed that the DFO, Kalagarh was
transferred from the Kalagarh Forest Division only after the site
visit of the CEC even though the report submitted by the NTCA
had found that the illegalities/irregularities were committed by
him. It is also noticed that even after it came to the notice of the
higher authorities that the DFO, Kalagarh had issued work orders
without any authority in respect of the works which have been
listed above, yet for unknown reasons, he was not named as an
accused in the forest offences.
109
128. The CEC has formed an opinion that the cavalier attitude of
the Government of Uttarakhand indicated that the officer was
having tacit backing of his bosses in the execution of the
unauthorized works worth crores of rupees at the cost of the
environment and the wildlife in a prestigious and world-renowned
Tiger Reserve.
129. The CEC further found that, though the works at the Forest
Rest House Campuses were supposed to be for the
accommodation of the forest staff, they do not appear to be so.
They appear to be meant for providing accommodation consisting
of 16 rooms at four locations (64 rooms) for tourists. As per the
CEC, it was clear that this was done for the promotion of tourism.
130. The report of the CEC further found that the proposal for the
felling of trees at the site of Pakhrau Tiger Safari submitted to
MoEF&CC under the Forest (Conservation) Act, 1980 relates to
the felling of only 163 trees out of 3,620 trees that have been
enumerated within the 16 Hectares out of the 106.16 Hectares
that has been approved for the establishment of the Tiger Safari.
It also refers to the report of the FSI dated 20th October 2022,
which has estimated the total number of trees felled at the
110
Pakhrau Tiger Safari site to be 2,651. The report further states
that approximately additional 534 trees have been felled for the
construction of tourist accommodation facilities and water bodies
outside the proposed Pakhrau Tiger Safari.
131. No doubt that the report refers to the objection of the
Uttarakhand Forest Department to the estimation of the FSI,
which is also reiterated before us by Mr. Nadkarni, learned Senior
Counsel during his arguments.
132. The report of the CEC further highlights that taking into
consideration the sequence of events that happened, it was of the
opinion that it was the then Hon’ble Forest Minister who was the
main architect of the entire matter. In a nutshell, the reasons
thereof are as under:
(i) That, the State Vigilance Department vide letter dated 19th
September 2019 and the PCCF and HoFF vide letters
dated 18th September 2019 and 21st September 2019 had
requested the State Government not to post Mr. Kishan
Chand at any sensitive post, he was still given a posting
in a sensitive post.
(ii) That, though there was no proposal from the Forest
111
Department and no recommendation from the CivilService Board (CSB) to post Mr. Kishan Chand at the
Kalagarh Forest Division, ignoring the recommendation of
the PCCF & HoFF and the State Vigilance Department, the
then Hon’ble Forest Minister inserted the name of Mr.
Kishan Chand, DFO at serial No. 11 in the proposal
relating to transfer and postings. This insertion was made
on 26th April 2021 before the concerned file was submitted
to the Hon’ble Chief Minister for approval of the posting
proposal.
(iii) Though the Secretary (Forests) vide notings dated 27th
October 2021, after considering the seriousness of the
irregularities reported by the NTCA, recommended placing
Mr. Kishan Chand under suspension, the then Hon’ble
Forest Minister has not only overruled the
recommendation of the Secretary (Forests) for suspension
but also justified the proposed posting to Lansdowne
Division stating that Mr. Kishan Chand only executed
works which had been started by his predecessors.
(iv) The then Hon’ble Forest Minister justified the
112
construction of new buildings on the ground that theywere being constructed as per the approvals granted by
the Corbett Tiger Reserve Foundation. Overruling the
proposal of the Secretary (Forest) for suspension, the then
Hon’ble Forest Minister justified the actions of the DFO
Mr. Kishan Chand, and recommended that the officer be
transferred from the post of DFO Kalagarh Forest Division
to the post of DFO Lansdowne Forest Division,
Lansdowne.
(v) Subsequently, the posting of Mr. Kishan Chand was
reviewed and revised on 24th November 2021 by the
Hon’ble Chief Minister and the officer was posted to the
Office of the HoFF on administrative grounds. This change
in proposal relating to the posting of Mr. Kishan Chand
was put up to the Chief Minister directly as was noticed
by the CEC from the copies of the notings on the file.
(vi) Ignoring the recommendation of the authorities to place
Mr. Kishan Chand under suspension, the then Hon’ble
Forest Minister once again attempted to post the officer to
Lansdowne Territorial Forest Division by inserting his
113
name at serial no. 16 in the transfer and postingproposals. This was done again without any proposal from
the Forest Department and without the recommendation
of CSB.
(vii) That, it was only after the then Forest Minister demitted
office that Mr. Kishan Chand, DFO was finally put under
suspension.
(d) ‘Public Trust’ Doctrine
133. It appears that the then Hon’ble Forest Minister and Mr.
Kishan Chand had completely forgotten about the ‘Public Trust’
doctrine.
134. The importance of the ‘Public Trust’ doctrine in
environmental and ecological matters has been explained by this
Court in the case of M.C. Mehta v. Kamal Nath and others10.
This Court has elaborately referred to various articles and the
judgments on the issue to come to a conclusion that the ‘public
trust’ doctrine is a part of the law of the land in the following
paragraphs:
“23. The notion that the public has a right to
expect certain lands and natural areas to retain10 (1997) 1 SCC 388=1996 INSC 1482
114
their natural characteristic is finding its way
into the law of the land. The need to protect the
environment and ecology has been summed up
by David B. Hunter (University of Michigan) in
an article titled An ecological perspective on
property: A call for judicial protection of the
public’s interest in environmentally critical
resources published in Harvard Environmental
Law Review, Vol. 12 1988, p. 311 is in the
following words:
“Another major ecological tenet is that the
world is finite. The earth can support only so
many people and only so much human
activity before limits are reached. This lesson
was driven home by the oil crisis of the 1970s
as well as by the pesticide scare of the 1960s.
The current deterioration of the ozone layer
is another vivid example of the complex,
unpredictable and potentially catastrophic
effects posed by our disregard of the
environmental limits to economic growth.
The absolute finiteness of the environment,
when coupled with human dependency on
the environment, leads to the unquestionable
result that human activities will at some
point be constrained.
‘Human activity finds in the natural
world its external limits. In short, the
environment imposes constraints on our
freedom; these constraints are not the
product of value choices but of the
scientific imperative of the environment’s
limitations. Reliance on improving
technology can delay temporarily, but not
forever, the inevitable constraints. There is
a limit to the capacity of the environment115
to service … growth, both in providing raw
materials and in assimilating by-product
wastes due to consumption. The largesse
of technology can only postpone or
disguise the inevitable.’
Professor Barbara Ward has written of this
ecological imperative in particularly vivid
language:
‘We can forget moral imperatives. But
today the morals of respect and care and
modesty come to us in a form we cannot
evade. We cannot cheat on DNA. We
cannot get round photosynthesis. We
cannot say I am not going to give a damn
about phytoplankton. All these tiny
mechanisms provide the preconditions of
our planetary life. To say we do not care is
to say in the most literal sense that “we
choose death”.’
There is a commonly-recognized link
between laws and social values, but to
ecologists a balance between laws and values
is not alone sufficient to ensure a stable
relationship between humans and their
environment. Laws and values must also
contend with the constraints imposed by the
outside environment. Unfortunately, current
legal doctrine rarely accounts for such
constraints, and thus environmental stability
is threatened.
Historically, we have changed the
environment to fit our conceptions of
property. We have fenced, plowed and paved.
The environment has proven malleable and
to a large extent still is. But there is a limit to
this malleability, and certain types of116
ecologically important resources — for
example, wetlands and riparian forests —
can no longer be destroyed without enormous
long-term effects on environmental and
therefore social stability. To ecologists, the
need for preserving sensitive resources does
not reflect value choices but rather is the
necessary result of objective observations of
the laws of nature.
In sum, ecologists view the environmental
sciences as providing us with certain laws of
nature. These laws, just like our own laws,
restrict our freedom of conduct and choice.
Unlike our laws, the laws of nature cannot be
changed by legislative fiat; they are imposed
on us by the natural world. An
understanding of the laws of nature must
therefore inform all of our social institutions.”
24. The ancient Roman Empire developed a
legal theory known as the “Doctrine of the
Public Trust”. It was founded on the ideas that
certain common properties such as rivers,
seashore, forests and the air were held by
Government in trusteeship for the free and
unimpeded use of the general public. Our
contemporary concern about “the environment”
bear a very close conceptual relationship to this
legal doctrine. Under the Roman law these
resources were either owned by no one (res
nullious) or by every one in common (res
communious). Under the English common law,
however, the Sovereign could own these
resources but the ownership was limited in
nature, the Crown could not grant these
properties to private owners if the effect was to117
interfere with the public interests in navigation
or fishing. Resources that were suitable for
these uses were deemed to be held in trust by
the Crown for the benefit of the public. Joseph
L. Sax, Professor of Law, University of Michigan
— proponent of the Modern Public Trust
Doctrine — in an erudite article “Public Trust
Doctrine in Natural Resource Law: Effective
Judicial Intervention”, Michigan Law Review,
Vol. 68, Part 1 p. 473, has given the historical
background of the Public Trust Doctrine as
under:
“The source of modern public trust law is
found in a concept that received much
attention in Roman and English law — the
nature of property rights in rivers, the sea,
and the seashore. That history has been
given considerable attention in the legal
literature, need not be repeated in detail here.
But two points should be emphasized. First,
certain interests, such as navigation and
fishing, were sought to be preserved for the
benefit of the public; accordingly, property
used for those purposes was distinguished
from general public property which the
sovereign could routinely grant to private
owners. Second, while it was understood that
in certain common properties — such as the
seashore, highways, and running water —
‘perpetual use was dedicated to the public’, it
has never been clear whether the public had
an enforceable right to prevent infringement
of those interests. Although the State
apparently did protect public uses, no
evidence is available that public rights could118
be legally asserted against a recalcitrant
government.”
25. The Public Trust Doctrine primarily rests on
the principle that certain resources like air, sea,
waters and the forests have such a great
importance to the people as a whole that it
would be wholly unjustified to make them a
subject of private ownership. The said resources
being a gift of nature, they should be made
freely available to everyone irrespective of the
status in life. The doctrine enjoins upon the
Government to protect the resources for the
enjoyment of the general public rather than to
permit their use for private ownership or
commercial purposes. According to Professor
Sax the Public Trust Doctrine imposes the
following restrictions on governmental
authority:
“Three types of restrictions on
governmental authority are often thought to
be imposed by the public trust: first, the
property subject to the trust must not only be
used for a public purpose, but it must be held
available for use by the general public;
second, the property may not be sold, even
for a fair cash equivalent; and third the
property must be maintained for particular
types of uses.”
26. The American law on the subject is
primarily based on the decision of the United
States Supreme Court in Illinois Central
Railroad Co. v. People of the State of Illinois [146
US 387: 36 L Ed 1018 (1892)]. In the year 1869
the Illinois Legislature made a substantial grant
119
of submerged lands — a mile strip along the
shores of Lake Michigan extending one mile out
from the shoreline — to the Illinois Central
Railroad. In 1873, the Legislature changed its
mind and repealed the 1869 grant. The State of
Illinois sued to quit title. The Court while
accepting the stand of the State of Illinois held
that the title of the State in the land in dispute
was a title different in character from that which
the State held in lands intended for sale. It was
different from the title which the United States
held in public lands which were open to pre-
emption and sale. It was a title held in trust —
for the people of the State that they may enjoy
the navigation of the water, carry on commerce
over them and have liberty of fishing therein free
from obstruction or interference of private
parties. The abdication of the general control of
the State over lands in dispute was not
consistent with the exercise of the trust which
required the Government of the State to
preserve such waters for the use of the public.
According to Professor Sax the Court in Illinois
Central [146 US 387: 36 L Ed 1018 (1892)]
“articulated a principle that has become the
central substantive thought in public trust
litigation. When a State holds a resource which
is available for the free use of the general public,
a court will look with considerable skepticism
upon any governmental conduct which is
calculated either to relocate that resource to
more restricted uses or to subject public uses to
the self-interest of private parties”.
27. In Gould v. Greylock Reservation
Commission [350 Mass 410 (1966)] the Supreme
120
Judicial Court of Massachusetts took the first
major step in developing the doctrine applicable
to changes in the use of lands dedicated to the
public interest. In 1886 a group of citizens
interested in preserving Mount Greylock as an
unspoiled natural forest, promoted the creation
of an association for the purpose of laying out a
public park on it. The State ultimately acquired
about 9000 acres, and the legislature enacted a
statute creating the Greylock Reservation
Commission. In the year 1953, the legislature
enacted a statute creating an Authority to
construct and operate on Mount Greylock an
Aerial Tramway and certain other facilities and
it authorised the Commission to lease to the
Authority any portion of the Mount Greylock
Reservation. Before the project commenced, five
citizens brought an action against both the
Greylock Reservation Commission and the
Tramway Authority. The plaintiffs brought the
suit as beneficiaries of the public trust. The
Court held both the lease and the management
agreement invalid on the ground that they were
in excess of the statutory grant of the authority.
The crucial passage in the judgment of the
Court is as under:
“The profit-sharing feature and some
aspects of the project itself strongly suggest a
commercial enterprise. In addition to the
absence of any clear or express statutory
authorization of as broad a delegation of
responsibility by the Authority as is given by
the management agreement, we find no
express grant to the Authority or power to
permit use of public lands and of the
Authority’s borrowed funds for what seems,121
in part at least, a commercial venture for
private profit.”
Professor Sax’s comments on the above-quoted
paragraph from Gould decision are as under:
“It hardly seems surprising, then, that the
court questioned why a State should
subordinate a public park, serving a useful
purpose as relatively undeveloped land, to
the demands of private investors for building
such a commercial facility. The court, faced
with such a situation, could hardly have been
expected to have treated the case as if it
involved nothing but formal legal issues
concerning the State’s authority to change
the use of a certain tract of land…. Gould,
like Illinois Central, was concerned with the
most overt sort of imposition on the public
interest : commercial interests had obtained
advantages which infringed directly on public
uses and promoted private profits. But the
Massachusetts court has also confronted a
more pervasive, if more subtle, problem —
that concerning projects which clearly have
some public justification. Such cases arise
when, for example, a highway department
seeks to take a piece of parkland or to fill a
wetland.”
28. In Sacco v. Development of Public
Works [532 Mass 670], the Massachusetts
Court restrained the Department of Public
Works from filling a great pond as part of its
plan to relocate part of State Highway. The
Department purported to act under the
legislative authority. The court found the
statutory power inadequate and held as under:
122
“the improvement of public lands
contemplated by this section does not
include the widening of a State highway. It
seems rather that the improvement of public
lands which the legislature provided for … is
to preserve such lands so that they may be
enjoyed by the people for recreational
purposes.”
29. In Robbins v. Deptt. of Public Works [244 NE
2d 577], the Supreme Judicial Court of
Massachusetts restrained the Public Works
Department from acquiring Fowl Meadows,
“wetlands of considerable natural beauty …
often used for nature study and recreation” for
highway use.
30. Professor Sax in the article (Michigan Law
Review) refers to Priewev v. Wisconsin State
Land and Improvement Co. [93 Wis 534
(1896)], Crawford County Lever and Drainage
Distt. No. 1 [182 Wis 404], City of
Milwaukee v. State [193 Wis
423], State v. Public Service Commission [275
Wis 112] and opines that “the Supreme Court of
Wisconsin has probably made a more
conscientious effort to rise above rhetoric and to
work out a reasonable meaning for the public
trust doctrine than have the courts of any other
State”.
31. Professor Sax stated the scope of the public
trust doctrine in the following words:
“If any of the analysis in this Article makes
sense, it is clear that the judicial techniques
developed in public trust cases need not be123
limited either to these few conventional
interests or to questions of disposition of
public properties. Public trust problems are
found whenever governmental regulation
comes into question, and they occur in a wide
range of situations in which diffused public
interests need protection against tightly
organized groups with clear and immediate
goals. Thus, it seems that the delicate
mixture of procedural and substantive
protections which the courts have applied in
conventional public trust cases would be
equally applicable and equally appropriate in
controversies involving air pollution, the
dissemination of pesticides, the location of
rights of way for utilities, and strip mining of
wetland filling on private lands in a State
where governmental permits are required.”
32. We may at this stage refer to the judgment
of the Supreme Court of California in National
Audubon Society v. Superior Court of Alpine
County [33 Cal 3d 419]. The case is popularly
known as “the Mono Lake case”. Mono Lake is
the second largest lake in California. The lake is
saline. It contains no fish but supports a large
population of brine shrimp which feed vast
numbers of nesting and migrating birds. Islands
in the lake protect a large breeding colony of
California gulls, and the lake itself serves as a
haven on the migration route for thousands of
birds. Towers and spires of tura (sic) on the
north and south shores are matters of geological
interest and a tourist attraction. In 1940, the
Division of Water Resources granted the
Department of Water and Power of the City of
124
Los Angeles a permit to appropriate virtually the
entire flow of 4 of the 5 streams flowing into the
lake. As a result of these diversions, the level of
the lake dropped, the surface area diminished,
the gulls were abandoning the lake and the
scenic beauty and the ecological values of Mono
Lake were imperilled. The plaintiffs
environmentalist — using the public trust
doctrine — filed a law suit against Los Angeles
Water Diversions. The case eventually came to
the California Supreme Court, on a Federal Trial
Judge’s request for clarification of the State’s
public trust doctrine. The Court explained the
concept of public trust doctrine in the following
words:
“‘By the law of nature these things are
common to mankind — the air, running
water, the sea and consequently the shores
of the sea.’ (Institutes of Justinian 2.1.1)
From this origin in Roman law, the English
common law evolved the concept of the public
trust, under which the sovereign owns ‘all of
its navigable waterways and the lands lying
beneath them as trustee of a public trust for
the benefit of the people.’ ”
The Court explained the purpose of the public
trust as under:
“The objective of the public trust has
evolved in tandem with the changing public
perception of the values and uses of
waterways. As we observed
in Marks v. Whitney [6 Cal 3d 251] , ‘[p]ublic
trust easements (were) traditionally defined
in terms of navigation, commerce and
fisheries. They have been held to include the
right to fish, hunt, bathe, swim, to use for125
boating and general recreation purposes the
navigable waters of the State, and to use the
bottom of the navigable waters for anchoring,
standing, or other purposes. We went on,
however, to hold that the traditional triad of
uses — navigation, commerce and fishing —
did not limit the public interest in the trust
res. In language of special importance to the
present setting, we stated that ‘[t]he public
uses to which tidelands are subject are
sufficiently flexible to encompass changing
public needs. In administering the trust the
State is not burdened with an outmoded
classification favouring one mode of
utilization over another. There is a growing
public recognition that one of the important
public uses of the tidelands — a use
encompassed within the tidelands trust — is
the preservation of those lands in their
natural state, so that they may serve as
ecological units for scientific study, as open
space, and as environments which provide
food and habitat for birds and marine life,
and which favourably affect the scenery and
climate of the area.’
Mono Lake is a navigable waterway. It
supports a small local industry which
harvests brine shrimp for sale as fish food,
which endeavour probably qualifies the lake
as a ‘fishery’ under the traditional public
trust cases. The principal values plaintiffs
seek to protect, however, are recreational and
ecological — the scenic views of the lake and
its shore, the purity of the air, and the use of
the lake for nesting and feeding by birds.
Under Marks v. Whitney [6 Cal 3d 251], it is126
clear that protection of these values is among
the purposes of the public trust.”
The Court summed up the powers of the State
as trustee in the following words:
“Thus, the public trust is more than an
affirmation of State power to use public
property for public purposes. It is an
affirmation of the duty of the State to protect
the people’s common heritage of streams,
lakes, marshlands and tidelands,
surrendering that right of protection only in
rare cases when the abandonment of that
right is consistent with the purposes of the
trust….”
The Supreme Court of California, inter alia,
reached the following conclusion:
“The State has an affirmative duty to take
the public trust into account in the planning
and allocation of water resources, and to
protect public trust uses whenever feasible.
Just as the history of this State shows that
appropriation may be necessary for efficient
use of water despite unavoidable harm to
public trust values, it demonstrates that an
appropriative water rights system
administered without consideration of the
public trust may cause unnecessary and
unjustified harm to trust interests.
(See Johnson, 14 U.C. Davis L. Rev. 233,
256-57/; Robie, Some Reflections on
Environmental Considerations in Water Rights
Administration, 2 Ecology L.Q. 695, 710-711
(1972); Comment, 33 Hastings L.J. 653,
654.) As a matter of practical necessity, the
State may have to approve appropriations
despite foreseeable harm to public trust uses.
127
In so doing, however, the State must bear in
mind its duty as trustee to consider the effect
of the taking on the public trust (see United
Plainsmen v. N.D. State Water Cons.
Comm’n [247 NW 2d 457 (ND 1976)] at pp.
462-463, and to preserve, so far as consistent
with the public interest, the uses protected
by the trust.”
The Court finally came to the conclusion that
the plaintiffs could rely on the public trust
doctrine in seeking reconsideration of the
allocation of the waters of the Mono basin.
33. It is no doubt correct that the public trust
doctrine under the English common law
extended only to certain traditional uses such
as navigation, commerce and fishing. But the
American Courts in recent cases have expanded
the concept of the public trust doctrine. The
observations of the Supreme Court of California
in Mono Lake case [33 Cal 3d 419] clearly show
the judicial concern in protecting all ecologically
important lands, for example fresh water,
wetlands or riparian forests. The observations of
the Court in Mono Lake case [33 Cal 3d 419] to
the effect that the protection of ecological values
is among the purposes of public trust, may give
rise to an argument that the ecology and the
environment protection is a relevant factor to
determine which lands, waters or airs are
protected by the public trust doctrine. The
Courts in United States are finally beginning to
adopt this reasoning and are expanding the
public trust to encompass new types of lands
and waters. In Phillips Petroleum
Co. v. Mississippi [108 SCt 791 (1988)] the
128
United States Supreme Court upheld
Mississippi’s extension of public trust doctrine
to lands underlying non-navigable tidal areas.
The majority judgment adopted ecological
concepts to determine which lands can be
considered tide lands. Phillips Petroleum
case [108 SCt 791 (1988)] assumes importance
because the Supreme Court expanded the
public trust doctrine to identify the tide lands
not on commercial considerations but on
ecological concepts. We see no reason why the
public trust doctrine should not be expanded to
include all ecosystems operating in our natural
resources.
34. Our legal system — based on English
common law — includes the public trust
doctrine as part of its jurisprudence. The State
is the trustee of all natural resources which are
by nature meant for public use and enjoyment.
Public at large is the beneficiary of the sea-
shore, running waters, airs, forests and
ecologically fragile lands. The State as a trustee
is under a legal duty to protect the natural
resources. These resources meant for public use
cannot be converted into private ownership.
35. We are fully aware that the issues presented
in this case illustrate the classic struggle
between those members of the public who
would preserve our rivers, forests, parks and
open lands in their pristine purity and those
charged with administrative responsibilities
who, under the pressures of the changing needs
of an increasingly complex society, find it
necessary to encroach to some extent upon
129
open lands heretofore considered inviolate to
change. The resolution of this conflict in any
given case is for the legislature and not the
courts. If there is a law made by Parliament or
the State Legislatures the courts can serve as
an instrument of determining legislative intent
in the exercise of its powers of judicial review
under the Constitution. But in the absence of
any legislation, the executive acting under the
doctrine of public trust cannot abdicate the
natural resources and convert them into private
ownership, or for commercial use. The aesthetic
use and the pristine glory of the natural
resources, the environment and the ecosystems
of our country cannot be permitted to be eroded
for private, commercial or any other use unless
the courts find it necessary, in good faith, for
the public good and in public interest to
encroach upon the said resources.”
135. This Court in unequivocal terms has held that the executive
acting under the doctrine of public trust cannot abdicate the
natural resources and convert them into private ownership, or for
commercial use. The aesthetic use and the pristine glory of the
natural resources, the environment and the ecosystems of our
country cannot be permitted to be eroded for private, commercial
or any other use unless the courts find it necessary, in good faith,
for the public good and in public interest to encroach upon the
said resources.
130
136. The law with regard to the importance of the ‘public trust’
doctrine in ecological/environmental matters has further been
evolved and expanded by this Court in subsequent judgments. In
the case of Association for Environment Protection v. State of
Kerala and others11, this Court has referred to some of the
judgments which followed the law laid down in the case of Kamal
Nath (supra), which are as under:
“6. In M.I. Builders (P) Ltd. v. Radhey Shyam
Sahu [(1999) 6 SCC 464], the Court applied the
public trust doctrine for upholding the order of
the Allahabad High Court which had quashed
the decision of Lucknow Nagar Mahapalika
permitting appellant M.I. Builders (P) Ltd. to
construct an underground shopping complex in
Jhandewala Park, Aminabad Market, Lucknow,
and directed demolition of the construction
made on the park land. The High Court had
noted that Lucknow Nagar Mahapalika had
entered into an agreement with the appellant for
construction of shopping complex and given it
full freedom to lease out the shops and also to
sign agreement on its behalf and held that this
was impermissible. On appeal by the builders,
this Court held that the terms of agreement
were unreasonable, unfair and atrocious. The
Court then invoked the public trust doctrine
and held that being a trustee of the park on
behalf of the public, the Nagar Mahapalika
could not have transferred the same to the11 (2013) 7 SCC 226=2013 INSC 413
131
private builder and thereby deprived the
residents of the area of the quality of life to
which they were entitled under the Constitution
and municipal laws.
7. In Intellectuals Forum v. State of A.P. [(2006)
3 SCC 549] , this Court again invoked the public
trust doctrine in a matter involving the
challenge to the systematic destruction of
percolation, irrigation and drinking water tanks
in Tirupati Town, referred to some judicial
precedents including M.C. Mehta v. Kamal
Nath [M.C. Mehta v. Kamal Nath, (1997) 1 SCC
388] , M.I. Builders (P) Ltd. [(1999) 6 SCC 464]
, National Audubon Society [National Audubon
Society v. Superior Court, 658 P 2d 709 : 33 Cal
3d 419 (1983)] and observed: (Intellectuals
Forum case [(2006) 3 SCC 549] , SCC p. 575,
para 76)
“76. … This is an articulation of the
doctrine from the angle of the affirmative
duties of the State with regard to public trust.
Formulated from a negatory angle, the
doctrine does not exactly prohibit the
alienation of the property held as a public
trust. However, when the State holds a
resource that is freely available for the use of
the public, it provides for a high degree of
judicial scrutiny on any action of the
Government, no matter how consistent with
the existing legislations, that attempts to
restrict such free use. To properly scrutinise
such actions of the Government, the courts
must make a distinction between the
Government’s general obligation to act for the
public benefit, and the special, more
132
demanding obligation which it may have as a
trustee of certain public resources….”
(emphasis in original)
8. In Fomento Resorts and Hotels
Ltd. v. Minguel Martins [(2009) 3 SCC 571:
(2009) 1 SCC (Civ) 877] , this Court was called
upon to consider whether the appellant was
entitled to block the passage to the beach by
erecting a fence in the garb of protecting its
property. After noticing the judgments to which
reference has been made hereinabove, the Court
held: (SCC pp. 614-15 & 619, paras 53-55 & 65)
“53. The public trust doctrine enjoins
upon the Government to protect the
resources for the enjoyment of the general
public rather than to permit their use for
private ownership or commercial purposes.
This doctrine puts an implicit embargo on the
right of the State to transfer public properties
to private party if such transfer affects public
interest, mandates affirmative State action
for effective management of natural
resources and empowers the citizens to
question ineffective management thereof.
54. The heart of the public trust doctrine
is that it imposes limits and obligations upon
government agencies and their
administrators on behalf of all the people and
especially future generations. For example,
renewable and non-renewable resources,
associated uses, ecological values or objects
in which the public has a special interest (i.e.
public lands, waters, etc.) are held subject to
the duty of the State not to impair such
resources, uses or values, even if private
133
interests are involved. The same obligations
apply to managers of forests, monuments,
parks, the public domain and other public
assets. Professor Joseph L. Sax in his classic
article, ‘The Public Trust Doctrine in Natural
Resources Law: Effective Judicial
Intervention’ (1970), indicates that the public
trust doctrine, of all concepts known to law,
constitutes the best practical and
philosophical premise and legal tool for
protecting public rights and for protecting
and managing resources, ecological values or
objects held in trust.
55. The public trust doctrine is a tool for
exerting long-established public rights over
short-term public rights and private gain.
Today every person exercising his or her right
to use the air, water, or land and associated
natural ecosystems has the obligation to
secure for the rest of us the right to live or
otherwise use that same resource or property
for the long-term and enjoyment by future
generations. To say it another way, a
landowner or lessee and a water right holder
has an obligation to use such resources in a
manner as not to impair or diminish the
people’s rights and the people’s long-term
interest in that property or resource,
including downslope lands, waters and
resources.
***
65. We reiterate that natural resources
including forests, water bodies, rivers,
seashores, etc. are held by the State as a
trustee on behalf of the people and especially
the future generations. These constitute
134
common properties and people are entitled to
uninterrupted use thereof. The State cannot
transfer public trust properties to a private
party, if such a transfer interferes with the
right of the public and the court can invoke
the public trust doctrine and take affirmative
action for protecting the right of people to
have access to light, air and water and also
for protecting rivers, sea, tanks, trees, forests
and associated natural ecosystems.”
137. The importance of the doctrine of ‘public trust’ has further
been emphasized in the case of Tata Housing Development
Company Limited v. Aalok Jagga and others12 to which one of
us (B.R. Gavai, J.) was a party.
138. In the present case, it is clear beyond doubt that the then
Forest Minister and Mr. Kishan Chand, DFO considered them to
be the law unto themselves. They have, in blatant disregard of the
law and for commercial purposes, indulged in the illicit felling of
trees on a mass-scale to construct buildings on the pretext of
promotion of tourism. This is a classic case that shows how the
politicians and the bureaucrats have thrown the public trust
doctrine in the dustbin. Though Mr. Kishan Chand, DFO was
found to have been involved in serious irregularities at his earlier
12 (2020) 15 SCC 784=2019 INSC 1203
135
postings, and even though the Authorities had recommended not
to post the said officer at any sensitive post, the then Hon’ble
Forest Minister inserted his name in the proposal relating to
transfer and postings at a sensitive post. Not only that, even after
the NTCA found Mr. Kishan Chand, DFO involved in serious
irregularities, and the Secretary (Forests) recommended placing
him under suspension, the then Hon’ble Forest Minister has not
only overruled the recommendation of the Secretary (Forest) for
suspension but also justified his proposed posting to the
Lansdowne Division. It was only after the then Hon’ble Forest
Minister demitted his office, that Mr. Kishan Chand, DFO could
be put under suspension. This is a case that shows how a nexus
between a Politician and a Forest Officer has resulted in causing
heavy damage to the environment for some political and
commercial gain. Even the recommendation of the Senior Officers
of the Forest Department, the Vigilance Department, and the
Police Department which objected to his posting at a sensitive post
have been totally ignored. We are amazed at the audacity of the
then Hon’ble Forest Minister and Mr. Kishan Chand, DFO in
giving a total go-bye to the statutory provisions. However, since
136
the matter is pending investigation by the CBI, we do not propose
to comment any further on the matter.
(e) Concern of the CEC
139. The CEC in its report has also elaborately dealt with the past
and present policy of MoEF&CC in granting the Forest Clearance
(FC) and the Standing Committee of National Board for Wild Life
(SC, NBWL) clearances to set up zoos and safaris as forestry and
non-forestry activities. It is stated that from the perusal of the
minutes of the meeting of the Forest Advisory Committee (FAC)
held on 17th February 2021, it would show that, in order to grant
clearances under the Forest (Conservation) Act,1980 (“FC Act” for
short), zoos were treated as forestry activity till 2007. However,
from 2017 onwards, it was treated as a non-forestry activity.
Thereafter, only 15% of the total area required for parking and
cafeteria, etc. for the setting up of zoos/safaris was treated as a
non-forestry activity. However, the State is required to get an
approval from the MoEF&CC under the FC Act for the entire area
required for the setting up of zoos and safaris. The Net Present
Value (NPV) is being collected only in respect of 15% of the total
area. The CEC therefore observed that there was a lack of clarity
137
in policy regarding the setting up of zoos and safaris inside the
forest boundary in such a sensitive matter.
140. The CEC has also highlighted various clauses in the NTCA
Guidelines. It has referred to inconsistencies between the 2016
Guidelines and the 2019 Guidelines. We do not want to
elaborately discuss the said issue since we have already referred
to the same in the earlier paragraphs.
141. The CEC has also expressed its concern about the issue that
the location of Tiger Safaris within Tiger Reserve with tigers
sourced from zoos is bound to endanger the population of wild
tigers in the Tiger Reserves.
142. The CEC has further observed that, the Tiger Safaris are not
site-specific activities as confirmed by the MoEF&CC. It also
expressed its opinion that the Tiger Safaris do not have to be
necessarily located within the notified Tiger Reserves, be it buffer
or fringe areas of the Tiger Reserves. It has been stated in the
report that at times the density of the tiger population is higher in
the buffer area as compared to the core area. The concern
expressed is that, by permitting the “zoos bred captive animals”
in the buffer or fringe areas, the possibility of tigers being exposed
138
to pests and diseases is enhanced. The CEC has also expressed
that even the visitors to the Tiger Safari can be carriers of diseases
and pests. It has recommended that the Tiger Safaris, not being
site-specific, are to be discouraged within the forest areas.
143. The CEC has further expressed that there is a great risk to
free-ranging animals from zoos/Safaris which have been set up
close to the wildlife-rich protected areas because of
epidemiological reasons. It states that zoonosis, especially of
infectious diseases, is commonly found in zoo/safari animals,
including the tigers. It states that, hundreds of pathogens and
many different transmission modes are involved and many factors
influence the epidemiology of the various such zoonosis. It further
states that the risk of such zoonotic disease transmission
drastically increases in any setting where wild animals are
confined in close proximity to humans, including the public
display facilities like zoos and safaris.
144. The report refers to some of the studies in various
zoos/Safari Parks, including Hyderabad Zoo, Jaipur Zoo, Etawah
Safari Park, etc.
145. The CEC elaborately refers to various mortalities that
139
occurred in various zoos in the recent past. The CEC report also
refers to the stand of the NTCA about the in-principle approvals
that have been granted by them for 5 Tiger Safaris in and around
the Tiger Reserves of India. The report states that the NTCA
highlighted the following main advantages/disadvantages in
setting up zoos and safaris within the forest area/protected
area/Tiger Reserve:
“Advantages
i. Will help to reduce the pressure from
core/critical tiger habitat area
ii. Will facilitate promotion of conservation
education and livelihood generationDisadvantages
i. Its an intensive resource use
establishment
ii. Clearance/modification of forest area will
have to be resorted to in certain cases.”
146. The CEC also refers to the stand of the CZA with regard to
locating the Tiger Safaris inside the Tiger Reserves. The report
states thus:
“55. A. The Central Zoo Authority have
supported the establishment of Tiger Safari
inside the Tiger Reserve stating that:
i) there is need for development of off-display
facilities under fairly undisturbed140
conditions alongwith availability of
adequate and optimal land and which may
be challenging. Under the given
circumstances, forest land could offer
optimal conditions to establish such
facilities;
ii) standards/norms for recognition of
Elephant Rehabilitation/Rescue Centres
(ERC) under Section 42 of the Wildlife
(Protection) Act, 1972 recommends that
ERCS should be located, preferably near
the forest areas with access to water
body/streams (F.No.2-5/2006-PE (Vol.II)
dated 29.10.2017;
iii) as per provision 2.1.4 of National Zoo
Policy, 1998,’….zoos shall continue to
function as rescue centres for orphaned
wild animals, subject to the availability of
appropriate housing and upkeep
infrastructure…’. In consonance with
this, Rescue Centres are an important
component of all recognized zoos in the
country. This will therefore aid in the
mitigation of conflict in a particular region
(e.g. to ensure that rescued animals do not
have to be transported long-
distances/have a better chance at
rehabilitation); and
iv) Wildlife Tourism is a thriving sector in
India, and with over 8 crore visitors
annually, zoos are in the forefront of this
sector and significantly contribute to
spreading awareness about wildlife
conservation. Most zoos are easily
accessible to people, are open year-round
and are relatively economical while having
high impact in spreading wildlife
141
awareness. This gives zoos an edge over
more expensive and relatively less
accessible wilderness area such as wildlife
safaris.
B) The disadvantages of establishment of
Tiger Safari inside Tiger Reserves include
i) clearing of vegetation which could be
denser in forest lands; and
ii) accessibility to forest areas may be
limited and hence, the establishment
could be resource intensive.”
147. The CEC also gives its opinion about the impact of the
Pakhrau Tiger Safari on the disbursal of tigers from the Corbett
Tiger Reserve. The CEC in its report opines that it may not be
feasible to locate the Tiger Safaris in the Tiger Reserves including
the protected area, buffer zone, on the fringe area.
148. The report of the CEC as also the reports of various
Committees which were constituted as per the directions of the
High Court of Uttarakhand as well as other authorities would
clearly show that there has been rampant deforestation in the
Corbett National Park. A huge number of trees have been felled
thereby causing a heavy loss to the environment.
149. It is also brought to our notice that in the Ramnagar area as
142
also in other areas around the Corbett Tiger Reserve, there is a
mushrooming growth of resorts, which are acting as a hindrance
to the free movement of animals including the tigers and
elephants. It is also brought to our notice that similarly, there is
a mushrooming growth of resorts around various Tiger Reserves
throughout the country which are now being used as marriage
destinations. It is brought to our notice that in the said resorts,
music is played at a very loud volume which causes disturbance
to the habitat of the forests. Undisputedly, mushrooming growth
of resorts within the close proximity of the protected areas and
uncontrolled activities therein, including sound pollution are
capable of causing great harm to the ecosystem. We propose to
issue certain directions in that regard in the operative part of our
judgment.
(f) Principle of Ecological Restitution
150. It will be relevant to refer to the Convention on Biological
Diversity, 1992 (“CBD” for short), to which India is a signatory.
Article 8 of the CBD pertains to in situ conservation. Under clause
(f) thereof, it requires the contracting parties to, as far as possible
and as appropriate, to rehabilitate and restore the degraded
143
ecosystems and promote the recovery of threatened species. It
reads thus:
(f) Rehabilitate and restore degraded
ecosystems and promote the recovery of
threatened species, inter alia, through the
development and implementation of plans or
other management strategies.
[emphasis supplied]
151. In the Chorzow Factory Case13, the Permanent Court of
International Justice (PCIJ) laid down the standard in
international law for reparations for the commission of
internationally wrongful acts. The Court held:
“The essential principle contained in the actual
notion of an illegal act – a principle which seems
to be established by international practice and
in particular by the decisions of arbitral
tribunals – is that reparation must, as far as
possible, wipe out all the consequences of
the illegal act and re-establish the situation
which would, in all probability, have existed
if that act had not been committed.
Restitution in kind, or, if this is not possible,
payment of a sum corresponding to the value
which a restitution in kind would bear; the
award, if need be, of damages for loss sustained
which would not be covered by restitution in
kind or payment in place of it -such are the
principles which should serve to determine the
amount of compensation due for an act contrary
to international law (…)”
[emphasis supplied]13 The Factory at Chorzow (Germany v. Poland), 13 September 1928, PCIJ, Merits, p. 47)
144
152. The International Court of Justice (ICJ), while applying the
principle of restoration of degraded ecosystem in the case of Costa
Rica v. Nicaragua14, has observed thus:
“42. The Court is therefore of the view that
damage to the environment, and the consequent
impairment or loss of the ability of the
environment to provide goods and services, is
compensable under international law. Such
compensation may include indemnification for
the impairment or loss of environmental goods
and services in the period prior to recovery and
payment for the restoration of the damaged
environment.
43. Payment for restoration accounts for the
fact that natural recovery may not always
suffice to return an environment to the state in
which it was before the damage occurred. In
such instances, active restoration measures
may be required in order to return the
environment to its prior condition, in so far
as that is possible.
(…)
53. In determining the compensation due for
environmental damage, the Court will assess, as
outlined in paragraph 42, the value to be
assigned to the restoration of the damaged
environment as well as to the impairment or
loss of environmental goods and services
prior to recovery.”
(emphasis supplied)
14
Certain Activities Carried Out by Nicaragua in the Border Area, Compensation Judgment, (2018) I.C.J. Reports 15
145
153. While considering the aspect of valuation of environmental
restoration costs to be awarded to Costa Rica, the ICJ observed
thus:
“85. (…) with respect to biodiversity services (in
terms of nursery and habitat), the “corrected
analysis” does not sufficiently account for the
particular importance of such services in an
internationally protected wetland where the
biodiversity was described to be of high value by
the Secretariat of the Ramsar Convention.
Whatever regrowth may occur naturally is
unlikely to match in the near future the pre-
existing richness of biodiversity in the area.
Thirdly, in relation to gas regulation and air
quality services, Nicaragua’s “corrected
analysis” does not account for the loss of
future annual carbon sequestration
(“carbon flows”), since it characterizes the loss
of those services as a one-time loss. The Court
does not consider that the impairment or loss of
gas regulation and air quality services can be
valued as a one-time loss.
86. The Court recalls (…) that the absence of
certainty as to the extent of damage does
not necessarily preclude it from awarding
an amount that it considers approximately
to reflect the value of the impairment or loss
of environmental goods and services. In this
case, the Court, while retaining some of the
elements of the “corrected analysis”, considers
it reasonable that, for the purposes of its overall
valuation, an adjustment be made to the total
amount in the “corrected analysis” to account
for the shortcomings identified in the preceding
paragraph. The Court therefore awards to Costa
Rica the sum of US$120,000 for the impairment
or loss of the environmental goods and services146
of the impacted area in the period prior to
recovery.”
(emphasis supplied)
154. This Court also while applying the principle of environmental
restitution in the case of Indian Council for Enviro-Legal Action
and others v. Union of India and others15 observed thus:
“60. (…) we are of the considered opinion that
even if it is assumed (for the sake of argument)
that this Court cannot award damages against
the respondents in these proceedings that does
not mean that the Court cannot direct the
Central Government to determine and recover
the cost of remedial measures from the
respondents. Section 3 of the Environment
(Protection) Act, 1986 expressly empowers the
Central Government (or its delegate, as the case
may be) to “take all such measures as it deems
necessary or expedient for the purpose of
protecting and improving the quality of
environment…”. Section 5 clothes the Central
Government (or its delegate) with the power to
issue directions for achieving the objects of the
Act. Read with the wide definition of
‘environment’ in Section 2(a), Sections 3 and 5
clothe the Central Government with all such
powers as are “necessary or expedient for the
purpose of protecting and improving the quality
of the environment”. The Central Government is
empowered to take all measures and issue all
such directions as are called for for the above
purpose. In the present case, the said powers15 (1996) 3 SCC 212=1996 INSC 237
147
will include giving directions for the
removal of sludge, for undertaking remedial
measures and also the power to impose the
cost of remedial measures on the offending
industry and utilise the amount so
recovered for carrying out remedial
measures. This Court can certainly give
directions to the Central Government/its
delegate to take all such measures, if in a given
case this Court finds that such directions are
warranted. (…)
xxx xxx xxx
66. (…) it follows, in the light of our findings
recorded hereinbefore, that Respondents 4 to 8
are absolutely liable to compensate for the harm
caused by them to the villagers in the affected
area, to the soil and to the underground water
and hence, they are bound to take all necessary
measures to remove the sludge and other
pollutants lying in the affected area (…) and also
to defray the cost of the remedial measures
required to restore the soil and the
underground water sources. Sections 3 and 4
of Environment (Protection) Act confers upon
the Central Government the power to give
directions of the above nature and to the above
effect. Levy of costs required for carrying out
remedial measures is implicit in Sections 3 and
4 which are couched in very wide and expansive
language. Appropriate directions can be given
by this Court to the Central Government to
invoke and exercise those powers with such
modulations as are called for in the facts and
circumstances of this case.”
[emphasis supplied]148
155. In the case of S. Jagannath v. Union of India and
others16, this Court was considering the issue of pollution created
by the industry which had caused harm to the villagers in the
affected area, to the soil and to the underground water. This
Court observed thus:
“49. (…) Consequently the polluting industries
are ‘absolutely liable to compensate for the
harm caused by them to villagers in the affected
area, to the soil and to the underground water
and hence, they are bound to take all necessary
measures to remove sludge and other pollutants
lying in the affected areas’. The ‘Polluter Pays
Principle’ as interpreted by this Court means
that the absolute liability for harm to the
environment extends not only to compensate
the victims of pollution but also the cost of
restoring the environmental degradation.
Remediation of the damaged environment is
part of the process of ‘Sustainable
Development’ and as such the polluter is liable
to pay the cost to the individual sufferers as well
as the cost of reversing the damaged ecology
(…).”
[emphasis supplied]
156. It could thus be seen that, worldwide as well as in our
jurisprudence, the law has developed and evolved emphasizing on
the restoration of the damaged ecological system. A reversal of
environmental damage in conformity with the principle under
16 (1997) 2 SCC 87=1996 INSC 1466
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Article 8(f) of the CBD is what is required. At times, the
compensatory afforestation permits forestation at some other site.
However, the principle of restoration of damaged ecosystem would
require the States to promote the recovery of threatened species.
We are of the considered view that the States would be required
to take steps for the identification and effective implementation of
active restoration measures that are localized to the particular
ecosystem that was damaged. The focus has to be on restoration
of the ecosystem as close and similar as possible to the specific
one that was damaged.
157. No doubt that the CBI is investigating the issue as to who is
responsible for the same. However, the investigation by the CBI
would only lead to finding out the culprits who are responsible for
such huge devastation. The law will take its own course.
158. We find that, bringing the culprits to face the proceedings is
a different matter and restoration of the damage already done is a
different matter. We are of the considered view that the State
cannot run away from its responsibilities to restore the damage
done to the forest. The State, apart from preventing such acts in
the future, should take immediate steps for restoration of the
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damage already done; undertake an exercise for determining the
valuation of the damage done and recover it from the persons
found responsible for causing such a damage.
VI. CONCLUSIONS
159. It is well known that the presence of a Tiger in the forest is
an indicator of the well-being of the ecosystem. Unless steps are
taken for the protection of the Tigers, the ecosystem revolving
around Tigers cannot be protected. The figures which are placed
before us to show that there has been a substantial reduction in
tiger poaching and an increase in the tigers’ strength throughout
the country. However, that should not be enough. The ground
realities cannot be denied. The events like illegal constructions
and illicit felling of trees on a rampant scale like the one that
happened in the Corbett National Park cannot be ignored. Steps
are required to prevent this.
160. We therefore requested Shri Chandra Prakash Goyal, former
Director General of Forest, Shri Anup Malik, IFS, PCCF (HoFF),
Uttarakhand, and Dr. Samir Sinha, IFS, PCCF (Wildlife) & Chief
Wildlife Warden, Uttarakhand to give their suggestion for more
effective management of the “Tiger Reserves” in India.
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Accordingly, they have given their suggestions. No doubt that on
some issues there is no coherence in the suggestions given. They
are conflicting and contradictory to each other. In any event, all
three Officers have vast experience in the Forest Department. Dr.
Samir Sinha is a person who has prepared the TCP for the Corbett
Tiger Reserve. Similarly, Shri Goyal has worked as the Director
General of Forest and has also worked as a Field Director of some
of the Tiger Reserves. At the same time, we are not experts in the
field. We therefore find that it will be appropriate that experts in
the field come together and come out with a solution that would
go a long way in the effective management and protection of the
Tiger Reserves.
161. We therefore find that the following directions need to be
issued in the interests of justice:
A. The Safaris which are already existing and the one
under construction at Pakhrau will not be disturbed.
However, insofar as the Safari at ‘Pakhrau’ is
concerned, we direct the State of Uttarakhand to
relocate or establish a rescue centre in the vicinity of
the ‘Tiger Safari’. The directions which would be issued
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by this Court with regard to establishment andmaintenance of the ‘Tiger Safaris’ upon receipt of the
recommendations of the Committee which we are
directing to be appointed would also be applicable to
the existing Safaris including the Safari to be
established at Pakhrau.
B. The MoEF&CC shall appoint a Committee consisting of
the following:
(i) a representative of the NTCA;
(ii) a representative of the Wildlife Institute of India
(WII);
(iii) a representative of the CEC; and
(iv) an officer of the MoEF&CC not below the rank of
Joint Secretary as its Member Secretary.
We however clarify that the Committee would be
entitled to co-opt any other authority including a
representative of CZA and also take the services of the
experts in the field, if found necessary.
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C. The said Committee will:
(i) recommend the measures for restoration of the
damages, in the local in situ environment to its
original state before the damage was caused;
(ii) assess the environmental damage caused in the
Corbett Tiger Reserve (CTR) and quantify the costs
for restoration;
(iii) identify the persons/officials responsible for such
a damage. Needless to state that the State shall
recover the cost so quantified from the
persons/delinquent officers found responsible for
the same. The cost so recovered shall be
exclusively used for the purpose of restoration of
the damage caused to the environment.
(iv) specify how the funds so collected be utilized for
active restoration of ecological damage.
D. The aforesaid Committee, inter alia, shall consider and
recommend:
(i) The question as to whether Tiger Safaris shall be
permitted in the buffer area or fringe area.
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(ii) If such Safaris can be permitted, then what
should be the guidelines for establishing such
Safaris?
(iii) While considering the aforesaid aspect, the
Committee shall take into consideration the
following factors:
a) the approach must be of ecocentrism and
not of anthropocentrism;
b) the precautionary principle must be applied
to ensure that the least amount of
environmental damage is caused;
c) the animals sourced shall not be from
outside the Tiger Reserve. Only injured,
conflicted, or orphaned tigers may be
exhibited as per the 2016 Guidelines. To
that extent the contrary provisions in the
2019 Guidelines stand quashed.
d) That such Safaris should be proximate to the
Rescue Centres.
Needles to state that the aforesaid factors are
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only some of the factors to be taken into
consideration and the Committee would
always be at liberty to take such other
factors into consideration as it deems fit.
(iv) The type of activities that should be permitted and
prohibited in the buffer zone and fringe areas of
the Tiger Reserve. While doing so, if tourism is to
be promoted, it has to be eco-tourism. The type
of construction that should be permissible in such
resorts would be in tune with the natural
environment.
(v) The number and type of resorts that should be
permitted within the close proximity of the
protected areas. What restriction to be imposed
on such resorts so that they are managed in tune
with the object of protecting and maintaining the
ecosystem rather than causing obstruction in the
same.
(vi) As to within how much areas from the boundary
of the protected forest there should be restriction
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on noise level and what should be those
permissible noise levels.
(vii) The measures that are required to be taken for
effective management and protection of Tiger
Reserves which shall be applicable on a Pan India
basis.
(viii) The steps to be taken for scrupulously
implementing such recommendations.
E. The CBI is directed to effectively investigate the matter
as directed by the High Court of Uttarakhand at
Nainital in its judgment and order dated 6th September
2023, passed in Writ Petition No.178 of 2021.
F. The present proceedings shall be kept pending so that
this Court can monitor the steps taken by the
Authorities as well as the investigation conducted by
the CBI.
G. We will consider issuing appropriate directions after
the recommendations are received by this Court from
the aforesaid Committee. We request the Committee to
give its preliminary report within a period of three
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months from today.
H. The CBI shall submit a report to this Court within a
period of three months from today. We request the
learned ASG to communicate this order to the Director,
CBI.
I. The State of Uttarakhand is directed to complete the
disciplinary proceedings against the delinquent officers
as expeditiously as possible and in any case, within a
period of six months from today. The status report in
this regard shall be submitted to this Court within a
period of three months from today.
162. We place on record our appreciation for the assistance
rendered by Ms. Aishwarya Bhati, learned ASG, Mr. A.N.S.
Nadkarni, learned Senior Counsel, Mr. Gaurav Kumar Bansal,
applicant-in-person. However, we will be failing in our duty if we
do not make a special mention of the valuable assistance rendered
by Mr. K. Parameshwar, learned Amicus Curiae. His in-depth
research and meticulous formulations have immensely assisted
us in deciding this issue, which is of paramount importance to
environmental and ecological justice. We direct the State of
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Uttarakhand to pay an amount of Rs.10,00,000/- (Rupees Ten
lakh) to Mr. K. Parameshwar, learned Amicus Curiae, as
honorarium.
163. The matter is stand over for Twelve (12) weeks.
…………………………J
(B.R. GAVAI)
…………………………………….J
(PRASHANT KUMAR MISHRA)
…………………………J
(SANDEEP MEHTA)
NEW DELHI;
MARCH 06, 2024
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