Gauhati High Court Upholds Assam Government's Notification On Deepor Beel Wildlife Sanctuary, Sets Aside Single Bench Ruling

The Gauhati High Court recently upheld the notification issued by the Assam Government declaring an area of 4.1 Sq. K.M. of the water body commonly known as the “Deepor Beel” a Wildlife Sanctuary within the meaning of the Wild Life (Protection) Act, 1972.

The division bench of Chief Justice Sandeep Mehta and Justice Suman Shyam observed:

“It would be pertinent to note here-in that ‘Deepor Beel’ is a permanent fresh water lake located in the south western part of the city of Guwahati. It is the only wetland of international significance in Assam and is included in the list of Ramsar sites w.e.f. 19.08.2002. Apart from being a staging site for the migratory birds, ‘Deepor Beel’ is the only major storm water storage basin for the city of Guwahati. Therefore, preservation and protection of Deepor Beel is a measure in larger public interest for the residents of the Guwahati city.”

The Court was hearing an intra-court appeal filed by Assam government against the judgment and order dated December 21, 2017 passed by a Single Judge setting aside the notification dated February 21, 2009 issued by the Assam Government under Section 18 (Declaration of sanctuary) and Section 26A(1)(b) (Declaration of area as sanctuary) of the Wild Life (Protection) Act, 1972 declaring an area of 4.1 Sq. K.M. of the water body in Guwahati known as the “Deepor Beel” to be a Wildlife Sanctuary.

The impugned notification dated February 21, 2009 issued by the Government was challenged before the single judge bench of the High Court on the ground that the same was issued without following the due process of law and also without taking into account the traditional fishing rights enjoyed by the petitioners.

It was further submitted before the single bench that there was a requirement under the law to publish the proclamation issued under Section 21 (Proclamation by Collector) of the Act in the neighbourhood of the declared area which was never done by the authorities. According to the petitioners, mere publication of the proclamation in the newspaper would not be in sufficient compliance of the mandate of Section 21.

The single judge bench vide order dated December 21, 2017 held that the fishing rights claimed by the writ petitioners were not relatable to the lease granted to them by the AFDC but were in the nature of traditional fishing rights since only those persons exercising traditional fishing rights would be entitled to secure lease of Government fishery.

The single judge bench further held that the impugned notification was issued by the State Government without making alternative arrangements to protect the rights of the affected persons and since no attempt had been made to address the livelihood issues, the same would have a vitiating effect on the impugned notification itself.

The single judge bench also held that the impugned notification was not preceded by proper publication of proclamation in the manner envisaged by Section 21 and the departure thereof had not been properly explained by the Collector.

However, the division bench said: 

“The writ petitioners have claimed traditional fishing rights in the Beel but there is not even an iota of material available on record to substantiate the said claim. The aforesaid aspect of the matter assumes great significance on account of the fact that the appellant/ State has all along disputed the existence of such traditional right claimed by the writ petitioners/respondent Nos.1 and 2. Therefore, it is evident that the question of existence of any traditional fishing right of the writ petitioners over any part of the “Deepor Beel” is a disputed question of fact which cannot be adjudicated in a writ petition.”

The court further noted that since the lease originally granted by the AFDC in favour of writ petitioners has since been cancelled, no right of fishing can be recognized in favour of them at this point of time based on such lease agreement which ceased to exist.

The court opined that the land falling in the ‘Deepor Beel’ is admittedly and evidently a government land, hence, there was no occasion for the Collector to make any enquiry under section 19 (Collector to determine rights) at the instance of the writ petitioners.

“In so far as the plea regarding non-publication of the proclamation under Section 21 of the Act of 1972 is concerned, we have already noticed that the same was published in as many as two local daily newspapers pursuant whereto, objections and claims were also received from several interested parties. In any event, since it has already been held that there is no right that can be recognized in favour of the writ petitioner Nos.1 and 2 coming within the ambit of Sections 19, 20 and 21 of the Act of 1972 no prejudice can be said to have been caused to the writ petitioners on account of improper publication of the proclamation issued under section 20 the Act of 1972,” the court said

Thus, the court set aside the impugned judgment and order of the single judge bench, and held that notwithstanding this order, it will be open for the writ petitioners to assert their claim, if any, coming within the ambit of sections 18A (2), 19 of the Act of 1972 and seek appropriate relief in respect for establishing such right in an appropriate proceeding and in accordance with law.

Case Title: The State of Assam v. Deepar Beel Pachpara Samabai Samity Ltd. & 2 Ors.

Citation: 2023 LiveLaw (Gau) 46

Coram: The Chief Justice Sandeep Mehta and Justice Suman Shyam

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