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2018 DIGILAW 1699 (JHR)

Mahesh Rai v. State of Jharkhand through the Chief Secretary

2018-08-02

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
JUDGMENT : Reference may be made to the previous orders passed in this Public Interest Litigation, particularly the orders dated 28.11.2017, 15.01.2018 and 14.03.2018. On 15.05.2018 learned A.S.G.I stated on written instruction contained in letter dated 07.05.2018 bearing no. 11/35/2017-ESZ, Government of India, MoEF&CC, ESZ Division that 7 representations were received from public/stake holders in respect of the draft notification for declaration of Eco Sensitive Zone(ESZ) of the protected areas of Parasnath and Topchanchi Wildlife Sanctuary; 6 representations received in respect of Hazaribag Wildlife Sanctuary and 3 representations received in respect of Koderma Wildlife Sanctuary. The State Government had been requested to give their view on the above representations latest by 10.05.2018 so that the Ministry may be able to consider the Jharkhand proposals in the next Eco Sensitive Zone Expert Committee meeting scheduled to be held on 25.06.2018. Though instructions were not furnished by that date to the Office of learned Advocate General but it was submitted on behalf of the State that the Department of Forest, Environment and Climate Change, Government of Jharkhand would offer their comments on the representations to the MoEF&CC, Government of India, if not already done before the cut off date i.e., 10.06.2018. Learned A.S.G.I assured the Court that the cut off date in the stage towards finalization of the proposal and issuance of final notification of declaration of Eco Sensitive Zones shall definitely be adhered to. The matter was adjourned for 6 weeks. On 28.06.2018 learned A.S.G.I informed this Court that on the request of the State Government consideration on the draft notification for declaration of Eco Sensitive Zones by the Multi-Disciplinary Expert Committee had been deferred. On the basis of the affidavit filed on 26.06.2018 by the Respondent no. 2 to 4, it was conveyed that as per the directions of Hon’ble Chief (Forest) Minister, the Department of Forest, Environment and Climate Change intends to review the determination of the Eco Sensitive Zones of all the National Parks/Wild Life Sanctuaries. The matter was adjourned on the request of learned counsel for the State to enable the learned Advocate General to assist the Court. When the matter was taken up on 05.07.2018, learned A.S.G.I made submission on instructions and based on templates and the guidelines prescribed for processing the Eco Sensitive Zone proposals by the MoEF&CC, Government of India. The matter was adjourned on the request of learned counsel for the State to enable the learned Advocate General to assist the Court. When the matter was taken up on 05.07.2018, learned A.S.G.I made submission on instructions and based on templates and the guidelines prescribed for processing the Eco Sensitive Zone proposals by the MoEF&CC, Government of India. He submitted that the Expert Committee was scheduled to hold its meeting again in the month of July, 2018 on the deferred agenda of ESZ proposals, apart from other agenda on board. This Court took note of the order dated 28.11.2017, which records the stand of MoEF&CC, Government of India containing details of the stages through which the proposals for declaration of ESZ has to undergo. The stages were described in their affidavit dated 24.11.2017 with flow chart. This Court observed that the proposal had progressed through different stages and is presently at the penultimate stage “f” before the Expert Committee. The consideration of the ESZ proposals is to be made in accordance with law as per the Standard Operating Procedure (SOP)/Templates and the guidelines prescribed by MoEF&CC, Government of India. The matter was however adjourned on the request of learned J.C to learned Advocate General to enable learned Advocate General to assist the Court on the next date. Thereafter when the matter was taken on 10.07.2018 learned Advocate General prayed for some time to deliberate on the issue. Thus the matter was adjourned for 26.07.2018. 2. The matter has been taken up today thereafter. In the meantime an affidavit has been filed by the Respondent no.2 on 30.07.2018. Para 5 thereof makes a mention of 8 proposals for declaration of ESZ of 1 National Park and 10 Wildlife Sanctuaries sent by the State Government to the MoEF&CC, GOI namely (i) Parasnath and Topchanchi Wildlife Sanctuary;(ii) Hazaribag Wildlife Sanctuary; (iii) Koderma Wildlife Sanctuary;(iv) Lawalong Wildlife Sanctuary; (v) Udhwa Lake Bird Sanctuary; (vi) Gautam Buddha Wildlife Sanctuary; (vii) Palkot Wildlife Sanctuary and (viii) Betla National Park, Palamau Wildlife Sanctuary and Mahuadanr Wolf Sanctuary. Para 6 makes a mention that draft notifications for declaration of ESZ of 11 protected areas of Jharkhand State were on the website of MoEF&CC, GOI. It further makes reference to the 30th Meeting of the Expert Committee dated 25/26.06.2018 for declaration of ESZ wherein these proposals were scheduled for consideration. Para 6 makes a mention that draft notifications for declaration of ESZ of 11 protected areas of Jharkhand State were on the website of MoEF&CC, GOI. It further makes reference to the 30th Meeting of the Expert Committee dated 25/26.06.2018 for declaration of ESZ wherein these proposals were scheduled for consideration. It states that on the request of the State Government, the Expert Committee deferred and decided to consider these 8 proposals in the next meeting. 3. Learned Advocate General has placed the statements made thereafter at para 8, 9 and 10 of the affidavit, which reads as under:- “8. That objections/suggestions were not received regarding ESZ draft notification of Lawalong Wildlife Sanctuary, Udhwa Lake Bird Sanctuary, Gautam Buddha Wildlife Sanctuary, and Palkot Wildlife Sanctuary. A high level meeting was convened on 18.07.2018 wherein it was decided to request the Government of India to further consider these four proposals pursuant to their publication in the draft notification. 9. That a review committee has been constituted vide Vanyaprani-01/2007(Khand) 2974 dated 16.07.2018 to reassess/re-examine the proposals in the light of the Guidelines of GOI and the objections received. Remaining four ESZ proposals (covering six sanctuaries and one national park) will be re-examined by the review committee. 10. That the proposals so revised will be presented before Expert Committee for declaration of Eco-sensitive Zone around Wildlife Sanctuaries and National Parks after obtaining the consent of the Competent authority”. 4. Learned Advocate General has sought to convey that the Department has decided to request the Government of India to process the 4 proposals relating to Law along Wildlife Sanctuary, Udhwa Lake Bird Sanctuary, Gautam Buddha Wildlife Sanctuary, and Palkot Wildlife Sanctuary. There were no objection in respect of them. Regarding the remaining 4 ESZ proposals, a review committee has been constituted to re-assess/re-examine the proposals in the light of the guidelines of the Government of India and the objections received. 5. Considerable arguments have been made by learned Advocate General, learned A.S.G.I and learned Amicus Curiae on the issue whether the proposals can be reviewed at this stage. They are, however not disputing the fact that the proposal is at the stage where comments on objections upon the draft notifications are to be made by the State Government for consideration by the Expert Committee. They are, however not disputing the fact that the proposal is at the stage where comments on objections upon the draft notifications are to be made by the State Government for consideration by the Expert Committee. However, learned A.S.G.I and the Amicus Curiae are of the opinion that a review of the original proposal cannot be undertaken at this advanced stage. It is not to be lost sight of that the ESZ proposals were sent by the State Government after a detailed consultative process and approval of the competent authority of the State Government. The MoEF&CC had proposed a time line of 545 days for the proposal to reach to the stage of final notification of ESZ. Learned A.S.G.I points out at this stage that the validity of draft notification is for a period of 545 days from the date of draft publication. 6. As per the affidavit of Respondent no.4 filed on 30.10.2017, the proposal was pending with the Wildlife Division till 25.10.2017. However, considerable progress has been made thereafter in the processing of the proposal through various stages to the stage where it has reached. This is also to be borne in mind that after 18 years of the formation of the State, ESZ have not been declared around these 11 protected areas. ESZ has been declared only in respect of Dalma Wildlife Sanctuary till date. 7. Learned Advocate General has taken pains to convince the Court that the State Government would follow due diligence in accordance with law, so far as the rest of the 4 proposals are concerned. 8. We are prima facie of the opinion that at this stage a whole hog review of the proposal cannot be made. However, in deference to the request of learned Advocate General, the matter is adjourned for 3 weeks to enable the State Government to come out with an affidavit in that regard. Meanwhile, as requested by learned Advocate General, based on the statements made at para 8 of the affidavit dated 30.07.2018 of the Respondent no.2, the State Government would request the MoEF&CC, GOI to proceed for consideration of the remaining 4 proposals before the Expert Committee as noted herein above. 9. Let the case appear on 30.08.2018. Let a copy of this order be handed over to learned ASGI and learned A.G. Committee adjourned.