High Court
Case Details
WP(C) 1295/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA That with regard to the statements made in paragraph 7 of the writ petit
Legal Reasoning
Heard Mr. A.M. Buzarbaruah, learned counsel for the petitioners. Also heard Mr. M. Bhagabati, learned State Counsel. By means of this writ petition, the petitio ners numbering 14 have prayed for a direction to the respondents to determine th eir rights as was directed by this Court vide order dated 22.11.2002 passed in a batch of writ petitions, the lead case being CR No. 1923/1993. Another prayer m ade in the writ petition is not to evict the petitioners from the land in questi on without determining their rights on the land. There is also a prayer to provi de them alternative pasture ground and living places to the petitioners in case their land is required for extension of the Kaziranga National Park. In the counter affidavit filed by the respondents, it has been stated thus :- (cid:28)5. ion, the deponent states that the contention of the petitioners that the area pr oposed for inclusion into sixth addition to Kaziranga National Park was not fit for the purpose of National Park is denied. The proposal to include the area of river Brahmaputra and islands north to the landmass of Kaziranga National Park i s based on scientific principles of floodplains ecology. The alluvial and fluvi al processes and dynamic nature of river Brahmaputra results into bank line chan ges of the northern boundary of the Park. The erosion and accretion of landmass along the bank line of river Brahmaputra is annual feature. The flood peaks and flooding pattern during floods in the flood plains of the Kaziranga National Par k creates and maintains variety of habitats suitable for many threatened species of Flora and Fauna. The existing are of landmass of Kaziranga National Park is nearly 400 Square KM as against original notified 430 square Km. The area lost i s added in first Addition to Kaziranga national Park and other islands adjoining the original landmass of Kaziranga National Park. The study of river system bas ed on the survey of India Topo Sheets on a time scale starting 1913 suggests tha t many areas which were part of the river water have become good grassland habit ats for rhino and other species and many areas which were part of landmass have now become river waters. This dynamism also contributes to the values of the sit e as a World Heritage Property. The river and the islands are also excellent she lter places for many transient tigers of high density population in Kaziranga Na tional Park. 8. That with regard to the statements made in paragraph 12 of the writ peti tion, the deponent states that the deponent begs to state that the 6th Addition to Kaziranga National Park was finally notified vide Notification No. FRS.10 415 5/289 dated 07/08/1999. However, in the matter of CR Nos. 1923/1993, 3683/1994, 3685/1994, 3845/1994, 4167/1996 and 2397/1998, the Hon’ble Gauhati High Court, b y its judgement and order dated 22.11.2001 held - (cid:28)the procedural safeguards and tdhe requirements prescribed by the Act having been breached, the matter will n ow have to go back to the authority for a de-novo determination. Such de-novo de termination, in the considered view of the Court should not be made by the autho rity8 on the basis of the claims and objections raised almost a decade back and that in such de-novo adjudication by the authority, the writ petitioners should be allowed to raise all such defenses as may be available on date (cid:29). The 2nd, 4th and 6th Additions were accordingly taken up de-novo. The present status of thes e additions is as below. NOTIFICATION NUMBER AREA (Ha) DISTRICT STATUS NAME 2nd Addition to KNP 2010. 4th Addition to KNP 012 6th Addition to KNP 646.98 89.754 Golaghat Nagaon Final Notification No. FRS.89/2002/ 112 Dated 12.7. Final Notification No. FRS.89/2002/129 Dated 10.4.2 Awaiting Final Notification No. FRS.89/2002/13 dated 22.12.2008 (Preliminary Notification). 40150 Sonitpur The Government in the Forest Department vide their Notification No. FRS.89/2002/ 13, DATED 22ND December, 2008 appointed Shri H.M. Cairae, IAS, the Principal sec retary, Public Enterprise Department, Dispur as the collector to enquire into an d determine the existence, the nature and extent of any rights /claim alleged to exist infavour of any person or persons, in or over any land within the limit d escribed in the schedule described in the said notification dated 22.12.2008. After following due process of law, the Collector submitted his report vide his letter No. HMC/HE/Forest/Enquiry/2009 dated 25th February, 2010 addressed to the Commissioner & Secretary to the Government of Assam, Environment & Forests Depa rtment, Dispur. The collector stated in the said communication that nobody has a ny title or right in the said land and Government may proceed to issue final Not ification for constitution of the National Park. 9. That with regard to the statements made in paragraph 13 of the writ peti tion, the deponent states that the averments made in this paragraph are denied. As stated in para 8 of this affidavit the Collector has already submitted the re port and the process of final Notification is on. In the matter of alleged evict ion described in this paragraph, it is informed that, taking advantage of order dated 22.11.2002, some people started encroachment and continued cattle rearing in the landmass finally notified as First Addition to Kaziranga National Park in Lahorani, Bisbali, Murkhowa Chapories etc. not covered under the order dated 22 .11.2002. Some of these settlers’ assists poachers and in few cases they were fo und involved in poaching, working as filed guides of the poachers. One such inci dents, where these unauthorised settlers (Khuties) were found involved in poachi ng of rhinos along with report of the Range Officer, Western Range Baguri, Kazir anga National Park and offence report forwarded by the Divisional Forest Officer , Eastern Assam Wildlife Division are enclosed. Many poaching cases are recorded in close vicinity of these encroachments. The said police report of 10.02.2013 seems registered without verifying the facts on ground. 10. That with regard to the statements made in paragraph 14 of the writ peti tion, the deponent states that the averments made in this paragraph are denied. As described in para 8 of the affidavit the Collector has already enquired into the matter as per the provisions of law and all procedural safeguards have duly been acted upon as provided in the provisions of Wildlife (Protection) Act 1972 and other laws. No action in contravention to the spirit of order dated 22.11.20 02 is taken by the park management. (cid:29) Mr. A.M. Buzarbaruah, learned counsel for the petitioners submits that w ithout determining the respective rights of the petitioners as envisaged in the aforesaid order of this Court, they cannot be evicted from the land in question. On the other hand, Mr. M. Bhagabati, learned State Counsel, referring to the af oresaid averments made in the counter affidavit, has submitted that the petition ers cannot claim as a matter of rights to encroach upon the are meant for extens ion of KNP. As stated above, there are 14 petitioners involved in this writ petition but on being asked as to whether they were party to the earlier round of litiga tion, Mr. Buzarbaruah, learned counsel for the petitioners could not point out t hat all the present petitioners were party to the earlier round of litigation. T hat apart, as stated in the counter affidavit, the proposal to include the area of river Brahmaputra of river Brahmaputra and islands north to the landmass of K aziranga National Park is based on scientific principles of floodplains ecology . The respondents have also referred to the 6th addition to KNP as was notified by different notifications referred to in paragraph 8 of the counter affidavit. In the earlier round of litigation also, this Court by its order dated 2 2.11.2002 left the matter to the sound discretion of the authority observing tha t the said authority would be the best judge to bring the matter to its logical conclusion. There is also no dispute that the 6th addition has already been noti fied by the notification indicated in paragraph 8 of the counter affidavit.
Decision
In view of the above, no direction can be issued to the respondents not to evict the petitioners from the land in question. As regards the prayer for pr oviding alternative land, it will be entirely up to the respondents to consider that aspect of the matter. Writ petition stands disposed of, without however, any order as to costs .