Vishal Water World Pvt. Ltd vs East Kolkata Wetlands Management Authority & Ors

Protik Prakash Banrjee, J

I had reserved the judgment in this matter on July 5, 2019. However, after going through the records and precedents and on considering the

submissions made by the learned senior Government Advocate I am of the opinion that I require further assistance from the petitioner in respect of

the points which are formulated below: -

(i) Admittedly the petitioner have made out a prayer under Section 10 of the East Kolkata Wetlands (Conservation and Management) Act, 2006

though it does not appear from the schedule to the said Act that the land is included therein as wetland, the petitioner and the State of West Bengal

have both treated the lands to be part of the schedule to the said statute. Section 3 clause (c) of the said Act of 2006 describes the lands covered by

the schedule to be areas included in the Ramsar sites specified in the first schedule and it refers to wetlands of international importance under the

Ramsar convention.

(ii) While making of legislation pertaining to the treaty obligations of India is covered by Entry 14 of List I to the 7th Schedule the only way in which

the legislative competence in respect of such matters can be derived in favour of the federating State is under Entries 17 and 18 of List II of 7th

Schedule.

(iii) Assuming that legislation of 2006 has been made under the said entries of the State list what would be the effect of a central statute being

Environmental (Protection) Act 1986 on the said State statute? If the said central statute contains in Sections 3 onwards a power to take all such

measures in terms of the said provisions to protect and improve the quality of environment and if in terms of the said Section Rules have been framed

under the rule making powers of the Central Government to restrict or prohibit a certain operation or certain industrial process particularly under

Section 6 (2)e read with Section 6(1)and if the said Rules being the Wetlands (Conservation and Management)Rules, 2010 and its replacement by the

Wetlands (Conservation and Management) Rules, 2017 made in the said Central Act if building of any fresh structure or development for real estate

has been prohibited in Ramsar sites and wetlands as defined, any claim can be entertained by the competent authorities under Section 10 of the said

Act in violation of the Central Rules?

(iv) It is to be remembered that wetlands as defined in Ramsar convention includes vegetation and fauna typical to such wetlands which is covered

under Section 17B of the concurrent list. If a field of legislation falls within the concurrent list and there is prior legislation by the Central Legislature in

respect thereof , the said legislature cannot make any la w touching the same which would override or negate the effect of central statute. In this case

the powers under Section 10 are to be exercised by a competent authority which authority has some members common to the authority created by the

Central Rules of 2017 but the authority under the Central Rules is more numerous than the competent authority under the State Act. The central rules

absolutely prohibit, with one exception allowing the State to recommend relaxation of the prohibition.

(v) In such view of the matter whether the provisions of the said statute particularly Section 10 can be overridden by the operation of Central Rules of

2017?

Let a copy of this order be provided to the learned advocates for both the sides.

Learned advocate for the respondents has already taken these points. I want the petitioner to assist me on this point.

On the prayer of the learned advocate for the petitioner the matter is fixed at 12 after noon on July 26, 2019 and shall continue until it is disposed of.