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Judgment
Contempt of the order dated 10.11.2017 passed in SBCWP No.15594/2017 has been alleged in this contempt petition.
The said order is short one, reads as under:-
“It is stated that an application for reconsideration of the environmental clearance was given to the SDM and the Member Secretary, DEIAA but
no consideration on it has been made. In view of the above, a direction be given to the committee to consider the representation and pass fresh order
on the application for environmental clearance.
I find that after an adverse order against the petitioner on 10th March, 2017, an application for re-consideration of environmental clearance was
submitted.
Thus while disposing of the writ petition, a direction is given to the respondents to consider and decide the application for reconsideration within a
period of two months. It would obviously be after considering the factual aspects involved therein.â€
Reply to the contempt petition has been filed.
Mr.Anurag Sharma, AAG for the respondent-State submitted that the petitioner’s representation pursuant to the Court’s order dated
10.11.2017 was considered on 9.5.2018. Therein it was indeed found that albeit the petitioner’s mining lease was at the distance of 1210 meters
from the boundary of the Baretha Wildlife Sanctuary, yet the NOC not having been issued from the National Board for Wildlife, the environmental
clearance could not be granted and hence the petitioner’s representation was rejected. Mr.Anurag Sharma, further pointed out that the petitioner
having earlier approached this Court in SBCWP No.5065/2017 also on the issue of environmental clearance for his mining lease, vide order dated
25.4.2017 the said petition was disposed of and it was observed that the petitioner would be at liberty to make an application for environmental
clearance afresh along with the required documents “including a copy of the application to seek wildlife clearance from the National Board for
Wildlife.†Mr.Anurag Sharma submitted that the Court having noted that an application for environmental clearance to the National Board for
Wildlife was thus inextricably linked to making an application for environmental clearance a contrary argument cannot now be made. Mr.Anurag
Sharma, further submitted that the Ministry of Environment and Forests under Government of India has issued an office memorandum dated
2.12.2009 wherein it has been interalia provided that while granting environmental clearance to projects involving forestland, wildlife habitat (core zone
of Elephant/ Tiger reserve etc.) and located within 10 kms of the National Wildlife Park/ Wildlife Sanctuary, a specific condition shall be stipulated
that the environmental clearance is subject to their obtaining prior clearance from the forestry and wildlife angle including from the Standing
Committee of the National Board for Wildlife as applicable. Mr.Anurag Sharma, submitted that in terms of the order dated 25.4.2017 passed in
SBCWP No.5065/2017 and the notification dated 2.12.2009 issued by the Government of India under Ministry of Environment and Forest the
considered view of the respondents is that the application for environment clearance cannot be entertained without a NOC from the National Board
for Wildlife in cases where the concerned industry/ mine is within 10 kms from the boundary of the Wild Life Sanctuary. He stated that hence the
representation of the petitioner made pursuant to the Court’s order dated 10.11.2017 passed in SBCWP No.15594/2017 has been rejected.
Mr.Rajeev Surana counsel for the petitioner emphatically submitted that there is no necessity for a NOC from the National Board for Wildlife for
making an application for grant of environment clearance in cases where the industry/ mining leases is beyond a distance of 1 km from the boundary
of the Wildlife Sanctuaryâ€"as the petitioner’s mining lease is. In support of his submission Mr.Rajeev Surana relied on the judgment of the Apex
Court in the case of Goa Foundation vs. Union of India & Others in [(2014)6 SCC 590]. Mr.Rajeev Surana, submitted that even otherwise the office
memorandum dated 2.12.2009 issued by the Government of India, Ministry of Environment and Forests has been put to question by the Secretary,
Government of Rajasthan, Environment Department in his letter dated 4.8.2016 to the District Collector, Alwar, and a reference has been required to
be made to the MoEF & CC, Government of India to revisit and clarify it. Mr.Rajeev Surana submitted that in the overall facts of the case it is
apparent that the representation made by the petitioner pursuant to the Court’s order dated 10.11.2017 has been rejected malafide with a
predetermined mind and that constitutes contempt. Mr.Rajeev Surana submitted that the Court in the case of SBCCP No.374/2013 has held that
mechanical malafide rejection of representation made pursuant to the Court’s order will be contempt. And it be so in this case, submitted
Mr.Rajeev Surana.
Representation of the petitioner pursuant to the Court’s order dated 10.11.2017 in SBCWP No.15594/2017 having been dismissed for reason/s
stated, there is little room for this Court in the facts of the case to find the respondents in contempt. It is apparent that in the facts of the case the
question is as to whether or not a prior NOC from the National Board for Wildlife is required or is not required at all for consideration of the
application for environment clearance from an industry/ mine located within 10kms of the boundary of a Wildlife Sanctuary. In SBCWP No.5065/2017
filed at the petitioner’s instance vide order dated 25.4.2017 the Court appears to have observed the need for a NOC from the Wildlife Board as an
essential precondition for the requirement of applying for an environmental clearance. Otherwise an application for NOC to the National Board for
Wildlife to which the Court adverted, would be reduced to a mechanical formality. The Court in that context while disposing of the said petition had
therefore observed that the petitioner would make an application afresh for seeking environmental clearance supported with required documents
interalia an application for NOC to the National Board for Wildlife. It is indeed true that this Court held in its order dated 19.8.2014 passed in S.B.
Civil Contempt Petition No.374/2013 that if the representation made pursuant to the order of the Court is rejected ex-facie and manifestly malafide,
such rejection can be of no consequence for evaluating compliance and the respondent can be found in contempt of the Court’s order. Yet it is
pellucid that issue of malafide in each case is a question of fact. The facts set out in this contempt petition are wholly different from that of SBCCP
No.374/2013. The judgment therein is in-apposite for decision in this petition. In the instant case the rejection of the petitioner’s representation
made pursuant to the Court’s order cannot be held to be deliberate and outlandished.
The question of law in issue i.e. as to the need for a NOC from the National Board for Wildlife to seek environmental clearance is one of
interpretation. This Court cannot therefore hold the respondents in contempt for reasons of their taking a particular view of the matter before them.
There is no force in this contempt petition.
Dismissed. Notices are discharged.