@JUDGMENTTAG-ORDER
V. Gopala Gowda, J.@mdashIn this batch of writ petitions, there are two competing claims by two sets of persons. In W.P. Nos. 17498/2009 &
919/2010, some public-spirited persons and an organization have presented before the Court a serious question of public importance pertaining to
protection of wildlife in the Bandipur National Park and Tiger Reserve Area. The other set of writ petitions bearing W.P. Nos. 26621-629/2009
are by persons carrying on transport business with valid permit to run the buses plying through certain specified areas including the Bandipur
National Park Area.
2. During the pendency of these writ petitions, various persons have come up with applications to implead themselves claiming that they are also
interested in airing their grievance before this Court. These applicants include the Kerala Road Transport Corporation by its Managing Director;
State of Kerala represented by its Secretary, Transport Department; State of Tamilnadu represented by the District Collector; District Collector,
Nilagiri District, Udhagamandalam; Sri M.I. Shanavas, Member of Parliament, Wayanad Constituency, Kozhikode District; and Sri M.K.
Raghavan, Member of Parliament, Kozhikode Constituency, State of Kerala.
3. Brief facts necessary for appreciating the questions involved including the nature of the reliefs sought in these writ petitions and the background
setting for the same are stated as under:
4. Bandipur Tiger Reserve and National Park is a very important and echo sensitive wildlife habitat. Two National Highways viz., NH-212 and
NH-67 cut through this National Park and Tiger Reserve Area. There has been an outcry from the public at large and the wildlife and
environmental protagonists in particular to ban traffic through the National Park and Tiger Reserve Area so as to protect the precious wildlife in this
place. The demand for regulating and restricting the heavy traffic in this area has been mainly because of the accidents that have been taking place
on these roads in the National Park killing several wild animals including precious species. That is how the public anguish came to be voiced in
different quarters. As a result of the same and on the basis of the letter dated 23.01.2009 written by the Deputy Conservator of Forests, Wildlife
Division, Tiger Project, Bandipur Division of Chamarajanagar District, the Deputy Commissioner, Chamarajanagar passed an order dated
03.06.2009 in exercise of his powers u/s 115 of the Motor Vehicles Act, 1988 read with Rule 221(A)(5) of the Motor Vehicles Rules, prohibiting
traffic of all kinds of motor vehicles on Bandipur National Highway No. 212 between Gundlupet and Sulthan Batheri and on National Highway
No. 67 between Gundlupet and Ooty on certain conditions with effect from 08.06.2009. The restriction of the movement of traffic was to operate
from 9 p.m. in the night till 6 a.m. in the early morning. However, in order to help the public and the villagers, two buses were allowed to ply
between the said hours i.e., to say from 9 p.m. to 10 p.m. The emergency services regarding medical care and plying of ambulances were
permitted by making provision for giving passes for the same. Based on this, a public notice dated 07.06.2009 came to be issued intimating the
public that the order will come into force with effect from 14.06.2009.
5. However, by another order dated 10.06.2009, the Deputy Commissioner withdrew the order dated 03.06.2009 stating that the withdrawal was
provisionally made, as after the issue of the notification dated 03.06.2009, representations were received from P. Krishna Prasad, MLA, Sulthan
Batheri and Assistant Transport Officer, KSRTC, Kalpetta, Wayanad, stating that the order might cause inconvenience to the people of Wayanad
and other parts of Kerala. Aggrieved by the withdrawal of the notification and requesting for issuance of a direction to the authorities concerned to
implement and enforce the night ban on traffic on these two roads and also seeking a direction to the Chief Engineer, National Highways Authority
of India - respondent No. 6 in W.P. No. 919/2010 not to widen the existing National Highway No. 212 and National Highway No. 67 into four
lane highways and further to introduce several safety measures to mitigate animal kills due to speeding vehicles, the two public interest litigations
referred to above have been filed. W.P. No. 17498/2009 is filed by Sri L. Srinivasbabu, an Advocate of Bangalore, presenting the
aforementioned scenario. In the said writ petition, this Court has granted an interim order of stay of the withdrawal of the night ban on traffic
imposed vide order dated 03.06.2009 by the Deputy Commissioner. The interim order is passed on 27.07.2009. As a result, the ban order dated
03.06.2009 has been in operation.
6. Aggrieved by the action of the authorities in imposing the ban and making serious grievance about the hardship and prejudice that the ban on the
traffic in the area has caused to the several bus operators carrying on transport business, the bus operators have filed W.P. No. 26621-629/2009.
7. Espousing the cause of the public and the need to protect and preserve the wildlife so as to maintain the ecological balance, party-in-person Sri
L. Srinivasbabu and learned Counsel Smt. P. Anu Chengappa and the learned Senior Counsel Sri Ravivarma Kumar have canvassed before the
Court several important aspects pertaining to the wildlife in the area in question and the need to preserve and protect the same from being
indiscriminately exposed to risks of road traffic accidents from the heavy traffic flowing through the national highways cutting across the Bandipur
National Park and the Tiger Reserve. They have contended that the Bandipur Tiger Reserve is one of the most critical wildlife habitats in the
country and supports one of the highest density of tigers in the world. This area is also part of the Mysore Elephant Reserve as declared by the
Ministry of Environment and Forests, Government of India, giving it utmost importance for elephant conservation. Due to its high ecological and
biological value, it is declared as part of the Nilagiri Biosphere Reserve as identified by Government of India and the United Nations Educational
Scientific and Cultural Organisation under its Man and Biosphere Reserve Program. The Bandipur Tiger Reserve is also contiguous to Nagarahole
Tiger Reserve, Waynaad and Mudhumalai Wildlife Sanctuaries and other reserved forests in the Western Ghats forming an important and
indispensible corridor for wild animals of the said region. The two highways viz., NH-212 and NH-67 cut the Bandipur Tiger Reserve fragmenting
the habitat for wildlife, especially of endangered animals that need large home ranges such as the tiger, asian elephant, astatic wild dog, causing
death to wildlife in the form of road kills due to speeding vehicles, particularly during night. Scientific studies have clearly established that wild
animals are very vulnerable especially at night due to speeding vehicles. These petitioners have produced pictures of wildlife killed on these
highways. Their grievance is also that these roads are also used for carrying out several illegal activities such as timber smuggling, wildlife poaching,
etc., in the Bandipur Tiger Reserve especially during night. They have placed several newspaper reports and other materials in support of their
assertions. Smt. Anu Chengappa draws the attention of the Court to the National Wildlife Action Plan 2002-2016, which stipulates that roads shall
be avoided within National Park or mitigation measures such as restricting night traffic should be adopted. The said action plan is produced along
with W.P. No. 919/2010 at Annexure-H. Guidelines for preparation of Tiger Conservation Plan also specify regulation of traffic flow. A copy of
the said guidelines is also produced as Annexure-H1. It is contended that night traffic ban is in place in several protected areas in India and in other
parts of the world. She has cited the example of night traffic restrains on all roads within Nagarahole National Park and she places reliance on the
order passed by the Apex Court on 11.11.2008 in Application No. 1064 filed in W.P. No. 202/1995, wherein it is directed that the Mysore-
Mananthavadi Road - State Highway 17D is to be closed between 6 p.m. to 6 a.m. based on recommendation of the Central Empowered
Committee appointed by the Apex Court. It is further submitted that even prior to the Apex Court issuing such orders, the Deputy Commissioner,
Mysore District, had initiated night closure of vehicular traffic on the said Mysore-Mananthavadi Road falling within the Nagarahole National Park
vide his order dated 11.07.2008. The same is produced at Annexure-J2. Attention of the Court is also drawn to the decision taken by the
Monitoring Committee that a 14 Kilometre diversion shall be taken up to completely avoid the usage of 10 Kilometre of the existing Mysore-
Mananthavadi road passing through the Nagarahole National Park to ensure greater protection to the wildlife of the region. Reference is also made
to the Hyderabad-Srisailam road passing through the Nagarjuna Sagar-Srisailam Tiger Reserve, which is also closed from 9 p.m. to 6 a.m. and
Sariska Tiger Reserve in Rajasthan. The anxiety expressed by the public spirited petitioners is that despite such serious adverse impact the traffic
on highways has on the wildlife, the National Highway Authority has planned to expand the Gundlupet-Sulthan Batheri road (NH-212) and
Gundlupet-Ooty Road (NH-67) into a four lane highway. It has been further contended in the public interest petition that an alternate highway is
available to reach North Kerala and Tamilnadu. The alternate alignment for NH-212 passes through and the only Inconvenience would be to cover
an extra distance of nearly 35 to 40 kilometres longer than the currently alignment. The map of the alternate roads is produced as Annexure-M.
Likewise, alternate road to reach Ooty Is also produced at Annexure-M1. Thus, It is contended that viable options to both NH-212 and NH-67
are available.
8. On the other hand, petitioners in W.P. No. 26621-629/2009 and other applicants who have come forward to be impleaded contend that their
interests are going to be seriously affected if the night ban on traffic movement is continued. They have contended that the hardship and injury that
is being caused to the transport operators and other large section of the public who have been using these roads over several decades will be
almost irreparable if the night ban is continued. The transport operators have contended that they are all carrying on transport business with valid
permits. Sri Giridhar, learned Counsel appealing for these transport operators has contended that the order passed by the Deputy Commissioner is
without jurisdiction as the provision u/s 115 of the Motor Vehicles Act read with Rule 221 of the Karnataka Motor Vehicles Rules can be invoked
only in the interest of public safety or convenience or because of the nature of any road or bridge. It is urged that the rights of the petitioners to do
the transport business is seriously affected by the prohibition imposed which is violative of their fundamental right guaranteed under Article 19(1)(g)
of the Constitution. Reliance is placed in this regard on the judgment of the Apex Court in the case of Saghir Ahmad Vs. The State of U.P. and
Others, . Sri Giridhar has urged that there are several provisions under the Wildlife Act such as Section 33 which makes it a punishable offence to
cause any injury to the wild animals and instead of taking appropriate steps to prevent the accidents and illegalities committed, the authorities have
come up with the impugned order to prevent the traffic movement in the National highway. He has contended that the condition of the alternate
road is hopeless. Photographs are produced to show that the said roads are in a bad shape and one of the bridges on the said road is unsafe. It is
also contended that adequate devices and measures can be adopted to mitigate the danger to the wildlife and imposition of such absolute restraints
on night traffic is totally uncalled for and unreasonable. He further points out that the order withdrawing the ban is passed by the Deputy
Commissioner after being satisfied about the hardship that was caused by the ban and after considering the representation given by the affected
interests.
9. Learned Senior Counsel Sri Jayakumar S. Patil representing the Members of Parliament of Wayanaad and Kozhikodi constituencies, has
emphasized that if the authorities want to effect ban on the vehicular movement during night, they should provide an alternate road. Unless such an
alternate road is made available, prohibition imposed is not at all justifiable.
10. Learned Counsel Mr. Lazer representing the Kerala Road Transport Corporation, contends that the road in question is in existence for nearly
200 years and people of Malabar, Calicut, Wayanaad Districts have been using the road all along and the ban order has brought their business
transaction to a stand still. It is contended by them that though the alternate road increases the distance by 35 KMs, due to the pathetic condition
of the road, it takes extra three hours for the vehicles to reach the destination through the said road. It is also contended by several impleading
respondents that due to the night ban on traffic movement, the transportation of perishable vegetables will be affected.
11. Learned Advocate General Mr. Ashok Haranahalli submits that it has become necessary for the State to balance the Interests by protecting
the wildlife and also ensuring that least inconvenience and hardship is caused to the public in the area and also to Inter State trade and business
between the State of Kamataka, Kerala and Tamil Nadu. He has pointed out the importance of the protection of wildlife, as it is the duty of the
State to extend such protection. He refers to Section 38V of the Wildlife Protection Act and also invites the attention of the Court to the judgment
of the Apex Court in the case of Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, .
12. Learned Counsel Sri Suman appearing for the State of Kerala submits that while the need for protection of wildlife cannot be denied, at the
same time, in the facts and circumstances of the case as NH-212 is being used by the people of Kerala for the last several decades, such ban will
affect them very seriously both in the matter of passenger traffic and also for the movement of goods and other business transaction. He therefore
submits that other alternate and less hazardous options are required to be explored by the authorities concerned.
13. So far as respondent No. 6 in W.P. No. 17498/2009, the Chief Engineer, National Highways Authority of India, Bangalore, is concerned,
learned Assistant Solicitor General S. Kalyan Basavaraj has filed the statement of objections. It is contended that the control of National Highways
vests within the jurisdiction of respondent No. 6 under the provisions of the Control of National Highways (Land and Traffic) Act, 2002, therefore,
the power exercised by the Deputy Commissioner was illegal. He has referred to Sections 31, 32, 34 & 35 of the Act. Referring to Section 35 of
the 2002 Act, he contends that it is for the highway administration in the interest of public safety or convenience or because of the nature of any
road or bridge to issue a notification in the official gazette prohibiting or restricting the use of any highway and therefore, the exercise of power by
the Deputy Commissioner invoking Section 115 of the Motor Vehicles Act was neither legal nor justified.
14. During the course of hearing, the Advocate General suggested, on the request made by the officers of the Forest Department of the
Government of Karnataka, particularly the wildlife protection wing, the need to arrange a power point presentation to appraise the Court
effectively of the danger to which the wildlife in the region is exposed due to heavy traffic movement and the importance of protecting the wildlife
particularly the Tiger Reserve in this area. We acceded to the suggestion made by the learned Advocate General for a power point presentation in
this regard. On 19.02.2010, a power point presentation was held in the presence of the learned Advocates of all the sides including the Advocate
General and the Principal Secretary to the Government of Karnataka, Forests, Ecology and Environment, Bangalore. The power point
presentation was made by the Chief Conservator of Forests (Project Tiger) and the Member, State Wild Life Board.
15. The State Government in the Statement of Objections filed in W.P. No. 17498/2009 has contended that the ban has caused serious
inconvenience to the commuters and to the common people and that a delegation of the people of Kerala had met the Chief Minister of the State
of Karnataka urging that the night ban on the vehicular traffic may be lifted. Although it has taken a stand that in the light of the volume of traffic on
the national highway catering to the needs of the people across the border, instead of prohibiting the traffic movement during night, introduction of
convoy system of vehicles in the area imposing reasonable speed limits under the close supervision of the police and forest officials will ensure the
solution to the problem, later on, the Principal Secretary, Department of Forests, Ecology and Environment, Government of Karnataka, has filed
an affidavit before the Court stating that an alternate good road for NH-212, via Thithamathi in Kodagu District is available which would be longer
by only about 30 Kms and it will not be a big burden for the common man. It is also stated that for NH-67 to reach Ooty, an alternate road
through Chamarajanagar and Satyamangala (NH-209) is available which is longer by about 70 KMs. It is also stated that additional measures
have been already taken whereby four buses from each Transport Corporation (Karnataka, Kerala and Tamilnadu) have already been permitted
between 9 p.m. and 6 a.m. and ambulances, fire engine and other emergency services are being allowed and therefore no hardship is being caused
during emergency situations. It is further stated in the affidavit that these restrictions being in place during the last four months, it is found that the
traffic during night hours and the goods transport sector were able to plan their movement of goods accordingly without their prime business -
interest getting affected in any adverse manner. The imposition of night traffic ban is sought to be justified by the Principal Secretary by contending
in her affidavit that compared to the restrictions imposed in other National Parks and Wildlife Sanctuaries in other parts of the country wherein the
night traffic ban is between 6 p.m. to 6 a.m., the restriction imposed in Bandipur National Park only from 9 p.m. to 6 a.m. is quiet reasonable,
which will ensure and accommodate, in the best possible manner the interest of public and wildlife.
16. Some of the impleading respondents including the Government of Kerala have taken up a contention that since the roads in question are
National highways, it is only the National Highway Authority, who has the competence to control and regulate these roads and the traffic and
hence the Deputy Commissioner has no jurisdiction or power to issue the notification prohibiting the night traffic.
17. We have heard in detail all the learned Counsel appearing for the parties and have carefully examined the entire materials produced by the
parties.
18. In the light of the respective legal contentions taken up by the learned Counsel for the parties, the points that arise for consideration are,
(i) Whether, in the interest of preservation and protection of wild life in the Bandipur National Park, it is necessary to regulate and restrict night
traffic in the park?
(ii) If so, how best the hardship caused to the transporters, traders and public can be mitigated?
19. Both these points being interconnected are considered together.
20. The situation presented in this batch of cases is of serious public importance viewed from both angles. The interest of protecting and preserving
the wildlife is undoubtedly very important. No less important is the need to protect the interest of the public who are the commuters, transporters
and other people involved in business transactions using these two National Highways in the stretch passing through Bandipur National Park,
particularly because the interest of the residents of three States viz., Karnataka, Kerala and Tamilnadu are also involved in the issue in question.
Therefore, the question presented assumes greater significance attracting our careful and serious attention.
21. The fact that Bandipur Tiger Reserve is declared as Core Critical Tiger Habitat under Sub-section (1), (4) of Section 38V of the Wild Life
(Protection) Act, 1972, is not in dispute. These areas are therefore to be kept inviolate for the tiger conservation is also indisputable. The Bandipur
Tiger Reserve is the most important Tiger Habitat as declared by the Ministry of Environment and Forests, in its report titled ''Status of Tigers, Co-
predators and Prey in India''. Bandipur National Park and Tiger Reserve has attained global acclaim. It is one of the mega biodiversity area mainly
for its rich and invaluable fauna and flora, more particularly, the National flagship species like elephant and tiger. Geographically, most important
part of the park is spread over in Gundlupet Taluk of Chamarajanagar District and other parts in Nanjangud and H.D. Kote Taluk of Mysore
District. It is stated that the total extent of this National Park and Tiger Reserve including the recently added buffer forest area is 990.51 Sq. Km.
The park is situated in the foothills of Nilgiri Hills and bounded by Mudhurnalai Tiger Reserve towards the west, Wayanaad wildlife sanctuary to
the north-west, and Nagarahole National Park and Tiger Reserve to the north, thus, constituting the landscape as one of the dense wildlife reserve
in the Nation. The large predatory carnivorous like tiger, leopard, wolfs and foxes are found in this park. The assemblage serves as large ungulate
species like Chital, Muntjac, Sambar, Chousingha. Gaur, Wild pig and Elephant are the other uniqueness of this forest landscape. The area is
declared as tiger reserve way back in 1973 and as a National Park in 1984. It is also borne out from the pleadings and the data made available by
the department that Bandipur Tiger Reserve is housing somewhere 11 to 15 tigers per hundred square kilometre forest and is supposed to be the
second largest congregation of tigers after the Ghana National Park and Tiger Reserve of Madhya Pradesh which is the No. 1 in the Nation.
Another most important feature of the park is that it houses the largest congregation of asiatic Elephants numbering between 1700 to 1800. This
made the Government of India to declare this entire landscape area as part of Mysore Elephant Reserve. This makes this landscape as the highest
elephant density area in the sub-continent.
22. It cannot be denied that at present, the protection and preservation of the rare and endemic species including the tiger has become a challenge
for the entire mankind. The wildlife needs a peaceful habitat for its existence and growth and nourishment free from violent invasion from human
beings of the two National Highways NH-67 cuts through the park in about 13 Kms. between the road leading from Gundlupet to Ooty and NH-
212 cuts across the park in about 20 Kms. between Gundlupet to Sulthan Batheri road. In the letter dated 23.01.2009 written by Dr. R. Raju,
IFS, Deputy Conservator of Forests, Project Tiger Division, Bandipur, Gundlupet Taluk, Chamarajanagar District, addressed to the Deputy
Commissioner and District Magistrate, Chamarajanagar District, he has stated that a traffic survey conducted recently on the two roads has shown
that on an average 30 vehicles were moving per hour during night time between 8 p.m. to 6 a.m. He has also referred to the joint inspection
conducted by the Deputy Commissioner and the Deputy Conservator of Forests during December 2008 when it was noticed that within a span of
30 minutes, 44 vehicles had moved on the road which confirmed that for every 0.41 minute there was a vehicle on the road. If such heavy traffic
continued, he was of the opinion that it will cause serious disturbance in the forest and accidents resulting in killing of wild animals would continue
unabated. Therefore, in the interest of peaceful existence of wildlife of the area, he found that it was necessary to restrict traffic movement in the
night as had been done in similar instances in different parts of the country. He has also pointed out in his letter that illegal trade involving wildlife
produces was only second to the narcotics and clandestine transportation of forest produce from the park during night by criminals has received
great boost as the traffic runs in the National Park without any regulation and it was difficult to assess and predict the quantum of such illegal
collection and transportation of forest and wildlife produce. He has also pointed out that the road accidents had been taking place regularly killing
several wild animals including tiger and elephant apart from smaller animals leading to public hue and cry. The sound and light disturbance caused
to inhabituated wildlife particularly the elephants irritates the behaviour of elephants and other animals and drives them away from the forests and
such self driven elephants go to the neighbouring farmers'' land and villages which has led to man animal conflict and resulted in casualities such as
loss of crop and property. The night vehicular traffic was facilitating the poachers, hunters and smugglers to indulge in criminal acts. The park being
very large in extent bordering different States, the inter State social criminals can hide and fly away from the clutches of law with the help of night
vehicular traffic freely and independently after committing serious crimes. The nocturnal (night) life of many diurnal wildlife and the active life of
nocturnal animals in the night in the park has been severely affected due to sustained sound and light flow on these roads throughout night which in
turn affects the stability of the entire echo system in the park. The continued night traffic round the year affects the very behavioural biology like
mating, breeding, nursing, parental care of the wild animals in the park which will have a long term impact on the animal population and will affect
the life cycle of these animal species. It is also very clearly and vividly brought out in the said letter of Dr. Raju, the Deputy Conservator of Forests,
that the length of 20 Kms between Maddur - Moolehole on NH-212 and 13 Kms between Melukamanahalli-Chekkanahalla on NH-67 totalling
to 33 Kms in the park has been severely affected due to sound and light disturbance. The said disturbance penetrates the forest atleast 2 Kms on
either side of the road i.e., 33 Kms x 2 Kms x 2 Kms = 132 Sq. Kms. area of the park has been severely affected due to night traffic disturbance
affecting the very life of atleast 1400 tigers and 2,244 other larger mammals, out of which atleast 200 will be the elephants. These disturbed wild
animal population moves away from their natural habitat into fanners land, villages and retaliates strongly resulting in heavy crop damage and human
and property loss. Further, they also become regular victims for human retaliations like shooting, electrocution, poisoning, etc., leading to loss of
many elephants and other wild animals. Therefore, in the larger interest of protecting and preserving the magnificent fauna and flora of this rich
biodiversity area and also for safety and security reasons and in order to reduce man animal conflict, he strongly proposed the idea of closing the
roads for vehicular traffic in the night on the two National highways.
23. Acting on this letter of Dr. Raju, the Deputy Commissioner of Chamarajanagar District, passed the order dated 03.06.2009 restricting the
night traffic on these two roads between the two segments mentioned above from 9 p.m. to 6 a.m. However, the Deputy Commissioner bowed to
the public out cry from different quarters of the transporters, commuters, business sector and other groups who have voiced their grievance,
hardship and inconvenience due to the closure of these roads. As a result of this, the Deputy Commissioner has issued the order dated 10.06.2009
withdrawing the earlier order making it clear that such withdrawal was provisional. It cannot be disputed that for both the roads, to reach the
destinations, there are alternate roads. The alternate road in the case of NH-212 is the road that passes via Thithamathi in Kodagu District, though
it increases the distance by about 30 Kms. It is submitted by the learned Counsel appearing for the transporters and other impleading applicant that
this road is in a bad shape and though the distance is about 30-35 Kms more than what it takes if one passes through NH-212, as the condition of
the road is very bad the travel time taken is more by around 2 to 3 hours. Photographs are produced by these petitioners to show that the
condition of the road is not good and in one place the bridge is also not in good condition. Whereas, the petitioners in the public interest litigation
and as also the officials of the Forest Department through the Government Advocate submit by producing some other photographs that this road is
reasonably well maintained. In respect of the other National highway bearing NH-67 leading to Ooty, an alternate route through NH-209 passing
through Chamarajnagar and Satyamangala is said to be available which no doubt has a longer distance by 70 Kms, but there is no grievance with
regard to the condition of this road.
24. What cannot be forgotten is that the alternate roads are required for the commuters and transporters only during the period when the ban is in
operation i.e. to say from 9 p.m. to 6 a.m. This, no doubt, causes inconvenience to the public in this border area to freely travel in the night. But,
this has to be viewed in the context of the requirement of protecting the wild animals whose habitat is seriously threatened on account of the heavy
traffic particularly during night hours when several nocturnal animals freely move out and are killed in the traffic accidents. The photographs
produced along with the writ petitions filed by the public spirited individuals presents a heart rendering scene as it can be seen that several animals
including tiger, leopard and elephant calf are killed by the motor vehicle accidents involving heavy vehicles including transport vehicles. It is also
brought out, very vividly before us through the photographs produced and the power point presentation made that as a result of the disturbance
caused due to sound and light to the wild life impacting their behaviour, it has resulted in serious unforeseen situations. Apart from the fact that
some of the animals are getting killed, there has been a change in their behaviour particularly in the case of elephants which venture to go into the
neighbouring farmers'' lands and villages leading to man animal conflict such as damage to the crop and other properties and human lives. The need
for maintaining a peaceful atmosphere during night hours so as to enable the nocturnal animals to have peaceful passage through the forest area has
made the authorities to take steps to restrict the night traffic from 9 p.m. to 6 a.m. This action cannot be characterized as unreasonable or arbitrary.
Provision is made for emergency services like ambulances and fire engine. Provision is also made for passage of some selected buses from the
State transport undertakings so as to help the commuters. In addition, it is seen that so far as the carriage of goods including perishable goods like
vegetables, the alternate roads available reduce the hardship and difficulties faced by the people of this border area to a great extent.
25. The alternate road available as a substitute for NH-212 is allegedly not in good shape. In this regard, when we put it across to the learned
Advocate General, he has submitted that the State Government is willing to take all steps to see that this alternate road is repaired wherever it is
damaged so as to make it a very viable and effective road to reach the destination for the affected persons. In the light of this, we are of the view
that in view of the availability of this alternate road, if immediate steps are taken to attend to the affected portions of the road as an urgent measure
and appropriate steps are initiated to make the road as a proper and viable alternate road, in the long run, it will definitely meet the requirements of
the transporters, commuters and general public of the border villages, towns and cities. The concern of the representatives of the people of the
border area and the Government of Kerala and as also of the Road Transport Corporation of Kerala can be effectively addressed in this way.
26. The stand taken by the Chief Engineer, National Highways in so far as the legal aspect is concerned is quite untenable as the restriction has
nothing to do with the control to be exercised over the National highway. The restriction comes out of the concern for the wild life and the need to
maintain the ecological balance in the important and critical area of the National park and tiger reserve which is of National importance. The
Deputy Commissioner has acted on the basis of a comprehensive representation in the form of letter submitted by the Deputy Conservator of
Forest Tiger Reserve which sums up the devastating consequences that are ensuing during night hours everyday due to the heavy night traffic
through this tiger reserve. The response made by the Deputy Commissioner who is in charge of the District where the park is situated and within
whose jurisdiction the incidents are taking place cannot be found fault with. He has exercised his powers u/s 115 of the Motor Vehicles Act read
with Rule 221-A(5) of the Karnataka Motor Vehicles Rules, 1989. Therefore, having regard to the purpose and the object behind the exercise of
the power and having regard to the urgent necessity of protecting the wild life, the Deputy Commissioner has acted on the basis of the letter
addressed and the anguish expressed by the Deputy Conservator of Forest. The National Highway Authority is also required to act and issue
necessary notification in this regard. It is incumbent upon it to take such steps and issue necessary notifications to facilitate protection of wildlife.
We do not appreciate the stand taken by this respondent which does not show any concern for the burning issue involved in the matter. The
statement of objections filed by this respondent contending that the National highways are meant for uninterrupted traffic movement as the same
are the backbone of the country connecting important places and huge quantity of goods will be transported on the National highway as such
banning of traffic on any part of the National highway either partially or fully adversely affects not only the movement of the goods but also the
passengers and is thus illegal, only shows that this respondent is not responding to the need of the hour and the nature of the duties cast on each
one of the citizen to protect the wild life particularly the endangered species in the tiger reserve. Therefore, we have no hesitation in rejecting the
objections taken by this respondent.
27. In so far as the alternate road for NH-67 is concerned, though the distance is more, we find that as the alternate road is also a National
highway, the availability of highway will mitigate the hardship faced by the public using this road during night hours. In any event, in a matter like this
while balancing the urgent and important need of protecting the forest, wild animals and the environment in the area, we feel it is worthwhile for all
concerned to undergo such difficulties during the limited hours in the night rather than risk and endanger the wild life and the peaceful habitat of the
flora and fauna in this area. In this regard, we may usefully refer to the importance of the duty of the citizens and the authorities concerned to take
steps to protect and preserve the wildlife, the forest and the environment as enshrined in the Constitution of India and as understood and
interpreted in the various decisions by the Apex Court. In the case of State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat and Others, , a
constitution bench of the Apex Court has held that where any statutory provision or an executive act is challenged and the reasonableness of the
same is required to be tested with regard to any restrictions cast on the exercise of any fundamental right either by way of regulating the same or by
controlling or prohibiting the same, the directive principles of the State policy and fundamental duties as enshrined in Article 51A of the Constitution
play a significant role. In paragraph 58, the Apex Court has held that for testing the reasonableness of an executive act or of any restriction cast by
law or the executive action on the exercise of any fundamental right, Article 48A and 51A(g) can be relied upon to justify the action. It is held that
the fundamental right to carry on any occupation, trade or business under Article 19(1)(g) is subject to Article 19(6) which permits reasonable
restrictions to be imposed on it in the interest of general public and the reasonable restriction includes in certain cases prohibition and that if such
reasonable restrictions are imposed keeping in mind the fundamental duty cast on the citizen the same can be justified. Therefore, it follows that if
such restrictions are imposed for banning vehicular traffic during night hours from 9 p.m. to 6 a.m. with a view to protect the wild life, forest,
ecology and environment, then the said restrictions can be supported from the stand point of the fundamental duty cast on the citizen under Article
51A(g) and also from the directive contained under Article 48A of Chapter-IV consisting directive principles of State policy. It is useful to refer to
Article 51A(g) which states that it shall be the duty of every citizen of India to protect and improve the natural environment including the forests,
lakes, rivers and wildlife and to have compassion for living creatures. Article 48A deals with protection and improvement of environment and
safeguarding of forests and wild life. It states that the State shall endeavour to protect and improve the environment and to safeguard the forests
and wild life of the country. Therefore, any restriction placed on the right of the commuters, traders, transporters or other people by transporting
certain goods prohibiting them from transporting the same during the specified hours from 9 p.m. to 6 a.m. in the part of the road which passes
through the critical section of 13 Kms in the case of NH-212 and 20 Kms in the case of NH-67, it can be supported from the stand point of the
fundamental duty of each one of the citizens who shall protect the wild life, forest, ecology and environment. So much hardship or difficulty as is
necessary to extend support for maintaining the peaceful habitation of the nocturnal animals during night hours, if undergone by the affected
individuals of the locality, it will only result in these individuals discharging their fundamental duties. Any prohibition or restriction imposed on their
rights commensurate with this purpose, in the wake of the availability of the alternate roads can be legally justified and the same cannot be
characterized as arbitrary or unreasonable affecting the fundamental rights of these citizens under Article 191(g) of the Constitution.
28. In the case of K.M. Chinnappa and T.N. Godavarman Thirumalpad Vs. Union of India (UOI) and Others, , in paragraph 17 & 29, the Apex
Court dealing with Article 48A has held that Article 48A and 51A(g) impose obligations on the State and the citizens of India to protect and
improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. In paragraph 29, it is
stated as under:
The tide of judicial considerations in environmental litigations in India symbolizes the anxiety of Courts in finding out appropriate remedies for
environmental maladies. At global level, the right to live is now recognised fundamental right to an environment adequate for health and well being
of human beings....
29. It is unnecessary for us to deal with all the other decisions cited in this regard by the learned Counsel for the petitioners, suffice to observe that
the ban Imposed only during night hours that too from 9 p.m. to 6 a.m. is guided by factors which required urgent action to protect the wild life and
to preserve its peaceful habitat, particularly keeping in mind the nocturnal animals'' peaceful habitat and the danger posed to the rare species. The
endeavour of the mankind has to keep pace with the changing circumstances. The sacrifice that we do in small measure today in protecting these
species including the tigers which are the threatened species will go a long way and the posterity will acclaim the same with deep gratitude and
appreciation although this is no more than just a discharge of the fundamental duties cast on the citizens by the Constitution. The hardship faced by
the public can be compensated by directing the State Government to take appropriate and adequate measures to improve the conditions of the
alternate roads and to urgently attend to the areas where the alternate roads are not in good condition.
30. We, therefore, deem it necessary to issue a time bound direction to the State Government, at the first instance, to start in right earnest and with
utmost priority the repair of the road in places where it is allegedly in a non-motorable condition. Along side the State shall take up comprehensive
action to improve the entire road stretch of the alternate road to NH-212 available for the public to make it more spacious, easy and safe for use
by the people. The respondent-State shall take steps to secure the safety of the commuters and transporters by repairing the bridges or culverts
that are not in a good condition. The Principal Secretary, Public Works Department, is directed to file an affidavit within one week with the action
plan prepared in this regard for carrying out repairs and also for carrying out the improvement of the existing road. The work shall be immediately
commenced and the same shall be completed within a period of six months from today and status report be submitted.
31. We also further make it clear that the National Highway Authority of India shall also take all necessary action to ensure that the ban during
night hours from 9 p.m. to 6 a.m. for vehicular traffic in the National highway is effectively enforced. We make it clear that this respondent shall
take all permissible steps to make the alternate roads within its jurisdiction, safe and easy for the additional traffic that may be diverted there during
the night time. We answer both the points raised for consideration accordingly.
32. In terms stated above, we allow the two writ petitions filed in public interest bearing W.P. Nos. 17498/2009 and 919/2010 quashing the order
dated 10.06.2009 passed by the Deputy Commissioner, Chamarajanagar District withdrawing the notification dated 03.06.2009. The writ
petitions filed by the transporters in W.P. Nos. 26621-629/2009 are disposed of issuing the aforementioned directions.