Final Notification U/S 26A Wildlife Protection Act Not Necessary For Declaring Mhadei Sanctuary As 'Tiger Reserve': Bombay High Court

The Bombay High Court last week held that there is no legal impediment on the Goa government to declare the Mhadei Wildlife Sanctuary as a tiger reserve even if the final notification under the Wildlife (Protection) Act, 1972 (WLPA) has not been issued declaring some areas within Mhadei as  sanctuary.

A division bench of Justice MS Sonak and Justice Bharat Deshpande while directing the State government to notify the Mhadei Wildlife Sanctuary as a tiger reserve within three months clarified that issuing final notification under Section 26-A (declaration of area as sanctuary) is not a prerequisite for declaring a protected area as a tiger reserve.

“issuing final notification under Section 26-A of WLPA is not a sine qua non for notifying protected areas as a tiger reserve. Even otherwise, the non-settlement of rights and claims of forest dwellers in the sanctuary and protected areas of Goa cannot, in the facts and circumstances discussed above, constitute a valid ground for the State Government to refuse or unreasonably delay in notifying Mhadei WLS and other areas as a tiger reserve”, the court held.

Santosh Kumar, Chief Wildlife Warden, in an affidavit filed on behalf of the State Government, submitted that final notification under Section 26-A of the WLPA was yet to be issued in certain areas within Mhadei WLS, and declaring these areas as tiger reserves prematurely could lead to adverse consequences for larger public interests and exacerbate human-tiger conflicts. However, the court rejected this argument.

Pulling up the State Government for failing to settle rights of forest dwellers of Bhagwan Mahaveer Wildlife Sanctuary for 56 years and Mhadei and Netravali Wild Life Sanctuaries for 24 years, the court said, “the State of Goa now puts forth its own lapses as an excuse for not notifying this area as a tiger reserve… Based upon such reason and by trying to take undue advantage of its lapse, the State is not justified in not notifying the said area as a tiger reserve or contending that it would notify the said area as a tiger reserve only after rights and claims of the forest dwellers in the area are settled.”

The court directed the state government to expedite the process of determining and settling the rights and claims of the Scheduled Tribes and other forest dwellers within a period of 12 months from the date of the judgment.

The court was dealing with a PIL filed by the Goa Foundation, an environment monitoring group, which sought the notification of the Mhadei sanctuary and contiguous areas as a tiger reserve. The National Tiger Conservation Authority (NTCA) had consistently suggested the formation of a tiger reserve from the uninhabited core zones of Goa's protected areas, urging the state to expedite the process of notification.

Section 38-V(1) of the WLPA provides that the “State Government shall, on the recommendations of the Tiger Conservation Authority, notify an area as a tiger reserve.”

The demand for the designation of the Mhadei Wildlife Sanctuary as a tiger reserve dates back to 2011 when Jairam Ramesh, then Union Minister of State for Environment and Forests, urged the Goa Chief Minister to consider the move. He pointed out that tigers in Goa were not merely transient animals but formed a resident population.

Recent incidents, such as the death of a tigress and three cubs due to poisoning inside the sanctuary in 2020, renewed the call for a tiger reserve. The petitioner argued that the state forest authorities had already prepared proposals and plans for notifying the tiger reserve with expert aid, but the State Board for Wildlife stalled the process, leading to the unfortunate deaths of four tigers in the sanctuary.

“After the unfortunate death of four tigers in the Mhadei WLS [wildlife sanctuary] in January 2020, it was expected by all concerned that the area would be notified as a tiger reserve to ensure a more significant level of protection for the tiger and the tiger corridor. However, even this incident was sought to be trivialised and downplayed”, the court said.

Advocate Norma Alvares, representing the petitioner, argued that the state's disregard for the Union Environment Minister's letter from 2011 regarding the sanctuary's notification as a tiger reserve was unjustifiable. She emphasized that the NTCA's repeated recommendations, starting from a communication dated March 3, 2016 were legally binding on the state government under Section 38-V(1) of the WLPA.

Alvares further contended that the provisions of Section 38-V (1) of the WLPA are mandatory, and the state had no authority to refuse or unreasonably delay the notification after receiving NTCA's recommendations.

Advocate General of Goa Devidas Pangam argued that further studies were necessary, and the rights of the forest dwellers needed to be settled before any declaration could be made. Pangam also submitted that the final notification had not been issued in respect of five out of the six wildlife sanctuaries/national parks in the State. He pointed out that the final notification was issued only regarding Cotigao Wildlife Sanctuary and not others, and further steps to notify Mhadei WLS as a tiger reserve would not be appropriate.

The court, agreeing with the petitioner's arguments, observed that the tiger, being a national animal, could not be allowed to fall into a death trap.

In addition to the tiger reserve declaration, the court directed the government to set up anti-poaching camps at strategic locations in the Mhadei Wildlife Sanctuary and National Parks within the state, to be staffed by forest guards and watchers, within six months.

The court recognized the significant role of tigers as top predators at the apex of the food chain, indicating the well-being of the ecosystem. Protecting tigers in forests, therefore, safeguards the habitats of various other species and contributes to several ecosystem services, including river protection, water source preservation, soil erosion prevention, and ecological services like pollination, the court said.

Moreover, the court ordered the state government to take steps to prevent any encroachments in protected forest areas, both pending the notification of the tiger reserve and afterward.

The court also directed the government to prepare a comprehensive tiger conservation plan and submit it to the NTCA within three months from the date of notification of the reserve.

Case no. – PIL Writ Petition No. 15/2022

Case Title – The Goa Foundation v. State of Goa and Ors.