BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18/08/2008
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)No.3631 of 2005
and
M.P.(MD)Nos.626 & 3833 of 2005
C.Rathinavel ... Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. by the Secretary to Govt.,
Forest and Fisheries Department,
Fort. St. George,
Chennai - 600 009.
2.The Wildlife Warden,
Gulf of Manner Marine
National Park,
Ramanathapuram.
3.The Ranger,
Gulf of Manner Marine
National Park,
Tuticorin -2
4.The Superintendent of Police,
Tuticorin. ... Respondents
PRAYER
Writ Petition filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Mandamus, forbearing the respondents from
interfering with collection of coral reef, its storage, transportation and use
of the same by the petitioner or his agents.
!For Petitioner ... Mr.C.Rajesh
^For Respondents ... Mr.D.Sasikumar,
Government Advocate.
:ORDER
The writ petitioner claims to be a manufacturer of Lime Powder for
white washing and other purposes. According to him, the coral reef are one of
the raw materials for the said purpose. The coral reef were collected by the
fishermen and in turn being sold to the petitioner. He also claims that the
coral reef are a lifeless substance and he has also filed a writ petition before
the Principal Bench being W.P.Nos.14547 to 14552 of 2002 to forbear the
respondents from interfering with the collection of coral reef in storage and
used by the petitioner on the ground that the coral reef being treated as
mineral. According to him, the writ petitions are still pending.
2.The petitioner also states that whenever he brings coral reef
purchased from the fishermen, the second respondent, who is the Wildlife Warden,
Gulf of Mannar Marine National Park is stopping the same and also threatening
the petitioner with penal action. He also submits that the coral reef
will not come under the Wild Life Protection Act.
3.The writ petition was admitted on 25.4.2005 and an interim order
was granted on 25.04.2005. The second respondent has filed a detailed counter
affidavit dated 30.11.2005. He has also filed an W.V.M.P.No.626 of 2005 for
vacating the interim injunction granted by this Court. When this matter came up,
the main writ petition was directed to be posted and accordingly it is posted
today for final disposal.
4.The second respondent had categorically stated that a reading of
Section 2(2) read with Section 39(b) of the Wild Life (Protection) Act, 1972
will clearly show that even the skeleton of the animal will be an animal article
which is only called as Coral. By virtue of Section 39(b) an animal article,
is a Government property of the Central Government and dealing with such article
including possession, is made an offence and the persons who are in possession
of the same were directed to handover the same to the authorised officers and in
terms of Section 39(3) which reads as under:-
“No person shall, without the previous permission in writing of the Chief Wild
Life Warden (a) acquire or keep in his possession, custody or control or (b)
transfer to any person, whether by way of gift, sale or otherwise, or destroy
or damage, such Government property.”
5.Under Section 2(2) of the Wild Life (Protection) Act, the term animal
article is defined which is as follows:
“animal article” means an article made from any captive animal or wild animal,
other than vermin, and includes an article or object in which the whole or any
part of such animal (has been used, and ivory imported into India and an article
made therefrom)
6.In the light of the same, the second respondent sought for dismissal of
the writ petition. Paragraphs 12 to 15 of the counter affidavit of the second
respondent can be usefully extracted as below:
12.”I state that by considering the importance of coral reefs in marine
ecosystem and in order to restore the depleting marine resources it had been
brought under schedule I of Wild Life Protection Act 1972 by way of amendment.
The notification is issued for the betterment of the people who depend on the
marine ecosystem for their livelihood. Unless the coral reefs whether it is
alive dead is protect in the interest of the people who depend on the marine
system, it will seriously affect the entire system because of the threat to the
fish production. Even the dead corals is very important in its natural eco-
system for revitalizing the habitat. The notification would ultimately help
balancing the marine eco system including fish production without getting the
species endangered that lives on and depend on the coral reefs. The benefit
accrued out of protection of coral reef is huge compared to the negligible
benefit arrived to certain individuals through its exploitation etc and issue of
such notification is in the larger interest of the people in general and the
same is in conformity with the provisions of the Act.
13.The protection of coral reefs provide livelihood for the millions of poor
fisher folk apart from supply of fish for the common public as the coral reefs
are considered as feeding, breeding and nursery grounds for most of the
commercial fishes especially prawns, crabs,ornamental fishes etc., Hence, the
employment opportunity provided in the lime industry is very negligible compared
to the larger BENEFITS AND INTEREST OF THE public including poor fisher folk,
the Notification dated 11.07.2001 and 05.12.2001 issued for over all betterment
of the marine ecosystem and the same would provide more fish production leading
to maintaining the healthiness of marine environment.
14.I respectfully state that the present contention of the writ petitioner in
this writ petition is self-contra to the contention raised by him in the earlier
writ petition in W.P.Nos.14547/2002. It is a specific averment in the aforesaid
writ petition that the coral reef is not a mineral, it is a living animal and
that the Mines and Mineral department should not interfere with their
activities. It is the present contention in this writ petition that the very
same coral reef is not a living animal, but the same is a mineral. The writ
petitioner is not entitled to blow hot and cold and they do not have a specific
stand.
15.I respectfully state that the other contention that the area is not a
National Park and that the State Government has no power to issue a notification
under Section 35 of the Wild Life Protection Act in Untenable. The term
‘National Park’ is also defined under the Act. National Park means “an area
declared, whether under Section 35 or Section 38 or deemed, under subsection (3)
of Section 66, to be declared as a “National Park” from the definition of
National Park, it is very clear that if an area is included in the notification
issued under Section 38 or deemed, under sub-section(3) of section 66 is a
National Park for all purposes and therefore, the provisions of the wildlife
Protection Act, 1972 will apply for all these areas, in this case, already the
area is notified under section in G.O.962 Forest and Fishering dated 10.09.1986
and therefore, the area is fully enjoyed the protection under the Wildlife
Protection Act,1972. The other contention that the coral rest is not a living
animal, but the same is a lifeless substances breaks from the coral reef and
falls on the sea floor and therefore, the provisions under wildlife Protection
Act are inapplicable is not correct. The coral reef also comes under the
definition of ‘habitat’ since the coral reef is not only an animal article, but
it also act as a habitat and provides surviving environment for many of the
marine organisms. As per Section 29 of the Wild Life Protection Act, 1972, no
person shall destroy, exploit or remove any wild life including forest product
from a sanctuary 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 sanctuary, except or enhance the flow of water into or outside the
sanctuary, except under and in accordance with a permit granted by the Chief
Wildlife Warden. The coral reef also act as a habitat and it provides surviving
environment for many of the marine organism. Therefore, the petitioner is
prevented from destroying such habitat as per Section 29 of the Wildlife
Protection Act 1972. It is not the case of the writ petitioner that he has been
a habitat. As per notification of the Union of India which has been upheld by
this Hon’ble Court, coral reef comes under Schedule-I provided under the Act.
7.The learned counsel for the respondents also submits that a Division
Bench of this Court in Writ Appeal No.723 to 725 of 2004 dated 29.03.2005 held
in paragraph 43, which reads as follows:
“We therefore make it clear that as long as the writ petitioners do not catch
and kill alive animal by severing their external skeleton. But only purchase
the coral reef bring the outer skeleton of th dead sea animal which is washed
shore after the death of the reef buildings coral the authority have no right to
interfere with the activities as they do no violate provisions of the Act.”
8.However, the State has taken up the matter on Appeal to the Supreme
Court in S.L.P.Civil Nos.15768 to 15770 of 2005. The Hon’ble Supreme Court by an
order dated 12.08.2005 had granted stay of operation of judgment of the Division
Bench.
9.In the light of the stay granted by the Supreme Court and in the light
of the averments made by the second respondent and in view of the provisions of
the Wild Life (Protection) Act 1972, no case is made out by the petitioner.
Hence, this Writ Petition is dismissed. Interim Injunction granted is also
vacated. No costs. Consequently, Miscellaneous Petitions are also closed.
ba/-
To
1.The Secretary to Government,
Forest and Fisheries Department,
Fort. St. George,
Chennai – 600 009.
2.The Wildlife Warden,
Gulf of Manner Marine
National Park,
Ramanathapuram.
3.The Ranger,
Gulf of Manner Marine
National Park,
Tuticorin -2
4.The Superintendent of Police,
Tuticorin.