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2017 DIGILAW 1078 (RAJ)

ASHWANI GUPTA v. STATE OF RAJASTHAN

2017-04-25

M.N.BHANDARI

body2017
ORDER : M.N. Bhandari, J. By this writ petition, a challenge is made to the order dated 10th March, 2017 passed on the application made by the petitioner for environmental clearance to operate the mining lease. Learned counsel submits that environmental clearance has been denied to the petitioner though mining lease allotted to him is 600 metres away from Bandh Baretha Wild Life Sanctuary. It is further submitted that two applicants namely, Smt. Rashmi Sharma and Satish Choudhary have been given environmental clearance though their mining leases exist at the distance of 50 to 250 metres and are closer to the Bandh Baretha Wild Life Sanctuary than the Mines of the petitioner. The environmental clearance therein has been given subject to satisfaction of various conditions thus respondents should have given similar treatment to the petitioner. 2. It is further submitted that issue about environmental clearance was required to be determined by the State Level Committee and not by the District Level Committee and accordingly, it should have been referred to the State Level Committee. The respondents have failed to take note of the aforesaid also, hence, impugned order deserves to be set aside on the ground aforesaid. 3. Lastly, it is submitted that Bandh Baretha has not been notified to be sanctuary thus directions issued by the Government of India are not applicable presently till area is notified, hence, for the aforesaid reason also, the order dated 10th March, 2017 is not tenable. 4. I have considered the submission made by learned counsel for petitioner and perused the record. 5. The petitioner is in second round of litigation. Earlier a writ petition was preferred when application submitted by the petitioner for environmental clearance was not considered. The writ petition bearing No.15385/2016 was disposed of with the following directions: "Having regard to the facts aforesaid, this petition is disposed off with direction to aforesaid District Level Environment Impact Assessment Authority/District Level Expert Appraisal Committee to take up and decide the application within four weeks from the date copy of this order is submitted before it." 6. The writ petition was disposed of with the direction to the District Level Environment Impact Assessment Authority/District Level Expert Appraisal Committee to decide the application within four weeks. In pursuance of the direction of the Co-ordinate Bench of this court, District Level Environment Impact Assessment Authority considered and decided the application. The writ petition was disposed of with the direction to the District Level Environment Impact Assessment Authority/District Level Expert Appraisal Committee to decide the application within four weeks. In pursuance of the direction of the Co-ordinate Bench of this court, District Level Environment Impact Assessment Authority considered and decided the application. It has been assailed on the ground of their competence. It is after ignoring that when specific direction of this court was for consideration of the application by the District Level Environment Impact Assessment Authority, the compliance was to be made accordingly. If the matter was required to be considered by the State Level Committee then petitioner should have sought direction accordingly in the first writ petition. The aforesaid is only one part otherwise I find that area in question was declared to be echo sensitive vide Notification dated 31st August, 2015. In view of above, it cannot be said that no Notification for the area in question exists. The District Level Committee had taken note of the aforesaid coupled with Office Memorandum dated 2nd December, 2009 which provides as under: "Information about wildlife clearance as applicable to the project should also be obtained. The project proponent should submit their application for wildlife clearance/clearance from standing committee of the National Board for Wildlife to the competent authority before coming for environment clearance and a copy of their application should be furnished along with environment clearance application." 7. As per the aforesaid, one is required to make an application to the National Board for Wildlife and copy of it to be given alongwith the application for environmental clearance. The petitioner does not possess clearance certificate from the National Board for Wildlife, rather, no such application has been made. The impugned order makes a reference of OM dated 2nd December, 2009 requiring a copy of the application submitted for wildlife clearance but it has not been submitted by the petitioner. In view of above, impugned order was passed referring to OM dated 2nd December, 2009 and I do not find any illegality therein. 8. The other issue is about environmental clearance given to Smt. Rashmi Sharma and Satish Choudhary. Their mining leases are said to be closer to echo sensitive area. If respondents have acted contrary to the directions of the Government of India apart from Notification then based on their illegality, the petitioner cannot claim benefit. 8. The other issue is about environmental clearance given to Smt. Rashmi Sharma and Satish Choudhary. Their mining leases are said to be closer to echo sensitive area. If respondents have acted contrary to the directions of the Government of India apart from Notification then based on their illegality, the petitioner cannot claim benefit. If prayer made by the petitioner is accepted, it would be nothing but to perpetuate the illegality. The respondents are expected to act in accordance with the Notification issued by the Government of India so as OM dated 2nd December, 2009. It is moreso when area in question has already been declared to be echo sensitive. In view of above, I do not find any illegality in the impugned order. 9. In view of above, writ petition is disposed of with a liberty to the petitioner to make an application afresh along with required documents which includes a copy of the application to seek wildlife clearance from the National Board for Wildlife. In case of such application, respondents would consider it expeditiously without being influenced by the impugned order and that would be within a period of three months from the date of receipt of the application. The application can be submitted to appropriate authority which may even to State Level Committee.