T` * IN THE HIGH COURT OF SIKKIM AT GANGTOK (Civil Extra Jurisdiction) DATED : 14-10-2010 CORAM HON'BLE MR. JUSTICE P. D. DINAKARAN, CHIEF JUSTICE AND HCEN'BLE MR. JUSTICE S. P. WANGDI, JUDGE wprplLi NO.05 Of 2Oio Athup Lepcha, S/o Late Chhala Lepcha, R/o Passingdang Dzongu, P.O. Passingdang, P.S. Mangan, North District, Sikkim. versus ... Petitioner The State of Sikkim, through the Chief Secretary, Government of Sikkim, Gangtok. The Secretary, Land Revenue & Disaster Management Deptt., Government of Sikkim, Gangtok. The Secretary, Forest Department, Government of Sikkim, Gangtok. The District Collector, North District, Man8an, Sikkim. The Principal Chief Engineer-cum-Secretary, Energy and Power Department, Government of Sikkim, Kazi Road, Gangtok. 6. Unionof India, through the Secretary, Ministry of Environment and Forest, Government of India, Parayavaran Bhawan, C.G.O. Complex, Lodhi Road, New Delhi -110 003. The Managing Director, Sikkim Power Development Corporation Ltd., 31A National Highway, Gangtok, Sikkim. The Managing Director, Athena Projects Private Limited, 119, Jor Bagh, New Delhi -110 003. The Managing Director, Teesta Ur].a Ltd., 119, Jor Bagh, New Delhi -110 003. ... Respondents For Petitioner For Respondents No.1 to 5 and 7 : For Respondent No.6 rtr, Ms. (Dr.) Doma T. Bhutia, Ms. Mary Rai and Mr. Suran Rai, Advocates. Mr. A. Mariarputham, Advocate General, Mr. J. 8. Pradhan, Additional Advocate General with Mr. S. K. Chettri, Assistant Government Advocate. Mr. Karma Thinlay Namgyal, Central Government Advocate. ForRespondentsNo.8&9 : Mr. Jayanta Mitra, Senior Advocate with Mr. Tarun Johri and Ms. Sunita Pradhan, Advocates. JUDGMENT Wan8di' J. This js a writ petition filed in the form of a Public Interest Litigation (in short "PIL| seeking to challenge the ongoing 1200 MW Teesta Stage Ill Hydroelectric Project (in short "Project| by M/s. Teesta Urja Ltd. (in short "TUL|, respondent no.9, in Chungthang and Mangan Sub-Divisions of North Sikkim, r.nter a/t.a, for having violated the provisions of Land Acquisition Act, 1894, (in short "LA Act") • in acquiring Reserve Forest Land for the Project, commencing with the Project work without obtaining the necessary clearances under the Forest (Conservation) Act, 1980, and the Environment (Protection) Act, 1986, by the respondents. The petitioner is a Member of the Lepcha Tribal Community and claims by profession to be an agriculturist and a social worker working for the benefit and upliftment of the people in general and is also a Member of a forum called Affected Citizens of Teesta (in short ``ACT"), an organization said to be working for the cause of environment protection and preservation of forests situated in the villages of the North District of Sikkim. The respondents no.1 to 5 are the State of Sikkim represented by the Chief Secretary and other authorities under the Government of Sikkim. The respondent no.6 is the Union of India through the Ministry of Environment and Forest (in short ``MOEF") and the respondent no.7 is the Managing Director, Sikkim Power Development Corporation Ltd. (in short ``SPDC'') while the respondents no.8 and 9 are the Managing Directors of Athena Projects Private Limited and TUL respectively. 3- In the writ petition, the petitioner has primarily raised the following issues:- (a) That in order to execute the Pro].ect an Agreement was entered into between the Energy and Power Department, Government of Sikkim, respondent no.5 and M/s. Athena Projects Private Limited and TUL, respondents no.8 and 9, in Clause 3.3(a) of which it had been provided that the Government of Sikkim would acquire lands in association with SPDC, respondent no.7, at the request and expense of the company in accordance with the LA Act. This was not permissible under the LA Act; (b) That the aforesaid Agreement dated 18-07-2005 had not been published in an Official Gazette as is mandatorily required under Section 42 of the LA Act rendering the entire process of acquisition of land illegal; (c) That the urgency provision in Section 17(1) of the LA Act was invoked in order to evade the provisions of Section 5A depriving the land owners of their right of raising ob].ections to the acquisition and that the mandatory requirements under Section 4 of the IA Act was not complied with; (d) That the declarations made under Sections 6 and 9 of the LA Act have been issued arbitrarily and mechanically without application of mind in violation of the laid down procedure under the IA Act and the Rules made thereunder; ifi (e) That the Power Project in question has been taken up in total disregard of the Proclamation dated 30- 08-1956 and notification no.3069/OS dated 24-03- 1958 by which entry of non-indigenous people into the North District of Sikkim is strictly prohibited; (f) That the notification no.665/PS dated 27-03-1954 which bans the entry of all traders/agents into Dzongu area has also been ignored and, also that Dzongu protected area within which construction activities of the Projects are being carried on, falls within the Restricted Khanchendzonga Biosphere Reserve Area; (g) That the acquisition of the land being for TUL, a private company, and funded by TUL is in violation of Part VII of the LA Act, and does not fall within the meaning of ``public purpose" as defined under Section 3(f) of the LA Act; (h) That the entire acquisition was bad in as much as the power under Section 17(1) was invoked arbitrarily without jurisdiction as the Protected Forest Lands were acquired without obtaining necessary Forest and Environment Clearance from the MOEF; Ct' (i) That the right to livelihood of the people under Article 21 of the Constitution of India had been violated due to diversion of the Protected Forest Land resulting in environmental pollution. i ® Cardamom, the only cash crop of the people and in.ain source of their income has been adversely affected thereby; (j) That leasing of the land to a private company, namely, TUL, for use of the Project has resulted in causing dust and water pollution and destruction of the adjoining forests, environment and ecology of the area depriving the people of the right to life enshrined in Article 21 of the Constitution of India rendering the lease deed in respect of the land as void. (k) That the lease deed is also bad for the reason that the land let out on lease falls within the Khanchendzonga Biosphere Reserve and protected areas of Khanchendzonga National Park; (I) That the conditions laid down for Catchment Area Treatment (in short ``CAT'') Plan prescribed in the Environmental Management Plan (in short ``EMP'') report have not been complied with during the execution of the Project works; (in) That the Environmental Clearance given in respect of 83.0405 hectares of Forest Land of North District being vague, devoid of demarcations, plot numbers and blocks, enables the respondent no.9 company to encroach upon Forest Land at will; (n) That none of the conditions laid down in the `Provisional Clearance' under the Forest (Conservation) Act, 1980, including the mandatory Compensatory Afforestation have been complied with; (o) That the entire exercise undertaken by the respondents for exploitation of the biodiversity condition is in contravention of the provisions contained in the Biological Diversity Act, 2002; In the above circumstances, it has been prayed by the petitioner, f.nter a/t.a, for issue of a writ of mandamus declaring the entire exercise of land acquisition by the Government of Sikkim as being illegal and in contravention of the LA Act and other statutory provisions, permanently restraining the Government from taking any action in furtherance of the impugned notifications, and for cancellation of the Project for violation of the Environmental Clearance and EMP for preservation of the Biosphere Reserve Areas and the Khanchendzonga National Park. 4. -,< In the counter-affidavit filed on behalf of all the State-respondents through the Chief Secretary, for and behalf of the other authorities, namely, respondents no.2, 3, 4, 5 and 7, all material allegations set out in the writ petition have been categorically denied. At the outset, they have raised the following preliminary ob].ections:- (i) That the land measuring about 121.1676 hectares notified for acquisition under Sections 4(1) read with 17(1) of the LA Act for the purpose of development of the Project has already been acquired, compensation paid therefor and possession already taken over. Therefore, the acquisition proceedings stand completed. By the awards dated 25-07-2007, 03-12- 2007, 16-12-2008 and 24-12-2008, compensation were disbursed to the claimants in terms of Section 11 of the LA Act except for an area measuring 2.4980 hectares being a portion of 3.8170 hectares (notification dated 24.12.2008 relates to 3.8170 hectares). Under such circumstances, the land in question stands vested completely in the Government free from all encumbrances under Section 16 of the LA Act leaving no scope for questioning the validity of the acquisition proceedings; 10 (ii) That having regard to the fact that the preliminary notifications for acquisition of the land had been issued in the year 2007-08 and the award passed on 25-07-2007, 03-12-2007 and 16-12-2008 and that the compensation for the acquired land disbursed and possession thereof taken by the Government, followed by the SPDC leasing them out to the respondent no.9 vide lease dated 20-03-2008 and 26-07-2008, and the work on the Project having progressed to an advanced stage which now is going on in full swing, the writ petition is clearly delayed and the petitioner was guilty of gross delay and laches. ® (iii) That the petitioner is guilty of suppression of material facts in as much as it has not been disclosed in the writ petition that in an appeal filed by the ACT of which the petitioner is the President, before the National Environmental Appellate Authority (in short `NEAA') under the National Environmental Appellate Authority Act, 1997, against the grant of Environmental Clearance to the Project in question, they had raised the very same issues contained in the present writ petition, i.e., the issues on the question of seismicity, Khanchendzonga National Park, 11 Earthquake, Public Hearing, Biodiversity, Faulty Environment Management Plan, Environment Impact Assessment Plan and that, the said appeal had been dismissed by the NEAA . The writ petition, therefore, deserves to be dismissed on this ground alone as no relief in equity can be granted in his favour, particularly in a PIL. (iv) The State Government of Sikkim having agreed under the lmplementation Agreement dated 18-07-2005 to provide land for the Project to the respondent no.9, TUL, the provisions of Sections 39 to 42 of the LA Act would have no application being covered by Section 43 of the said Act. Under such circumstances, all issues with regard to the alleged illegality of the land having been acquired for a private company by the State Government would be rendered redundant and irrelevant. cy (v) That the State Government holding 26% of equity share capital in the respondent no.9, TUL, is a - constituent of the said company in terms of the Implementation Agreement dated 18-07-2005 and, therefore, it would be incorrect to state that the cost i 12 5. ® Y of the acquisition of the land has been funded wholly by a private company. That apart from the above forming substantial part of their reply, the State respondents have denied the allegations of violation of the provisions of the Forest (Conservation) Act, 1980, the Wildlife (Protection) Act, 1972, the Environment (Protection) Act, 1986 and the Biological Diversity Act, 2002. It has been stated that all requirements under those statutes as stipulated by the MOEF have been fully complied with before implementation of the Project work, a fact that was also considered by the Central Empowered Committee (CEC), a body constituted under the Orders of the Hon'ble Supreme Court, and on its recommendations the Hon'ble Supreme Court, vide its Order dated 28-09-2007 had directed the MOEF to confirm compliance of the Rules by the respondent and that only after such confirmation, the MOEF vide letter dated 02-11- 2007, granted permission for diversion of Forest Land for the Pro].ect. The respondent no.9 commenced with the work on the Pro].ect only thereafter. It has been categorically denied by them that Reserve Forest Land or Forest Land or Protected Forest 13 Land/Khasmal Land had been leased out by the Government of Sikkim to the respondent no.9. The land alleged to have been leased out to the respondent no.9 by the SPDC, respondent no.7 for implementation of the Pro].ect work, comprised of only the acquired private land and so far as the Forest Land is concerned it was diverted for its use for non-forest purposes in terms of the permission granted by the MOEF and that the ownership of such Forest Land as well as the private land acquired under the acquisition proceedings remain under the State- respondents. That the conditions stipulated by the MOEF under the Environment (Protection) Act, 1986 and the Forest (Conservation) Act, 1980 have been meticulously complied with, a fact that has been confirmed by the Multi- Disciplinary Monitoring Committee (in short ``MDMC''), a body formed by the MOEF, during their site visit on 09-03- 2010. In the above premises amongst others, it has been stated that the writ petition being clearly not maintainable deserved to be dismissed. 8. The respondent no.9, TUL, in their counter- affidavit, has raised substantially the same preliminary 14 ® ob].ections as raised by the State-respondents and have dealt with the various allegations contained in the writ petition reiterating the stand of the State-respondents that none of the laws had been violated by them as alleged in the writ petition. It has been stated that the writ petition has been filed by the petitioner for redressal of his political motives and had not approached the Court bond f/.de. That the petitioner is an Ex-MLA from the Pro].ect area who seeks to attain political mileage by instituting the present proceeding in the garb of PIL. 9. It has further been stated that in view of the advanced stage of the Project where the respondent no.9 has spent Rs.3083 crores out of the envisaged cost of Rs.5705.055 crores, after having undertaken major mitigative measures stipulated by the MOEF and major part of the work having been completed having regard to the fact that time is the essence of the Agreement requiring the completion of the Project by 2011-12, the respondent no.9 was now at a disadvantageous position and that any interference in the progress of the work at this juncture cannot put the clock back resulting in immense public loss in terms of revenue, employment opportunities to the people, benefits accruing from the social upliftment 15 programmes being undertaken by the respondents, etc. and, therefore, the writ petition is liable to be dismissed on this ground also. i ]0. The respondent no.6, the Secretary, MOEF, Government of India, in his counter-affidavit has dealt with the issues pertaining to the allegations of violation of the Forest (Conservation) Act, 1980 and the Environment (Protection) Act, 1986 stating that the Ministry had conveyed the mandatory Environmental Clearances under those Acts for development of the Project after due consideration of all relevant aspects by following the laid down procedures. It is stated that the Environmental Clearance and the Forest Clearance issued by the MOEF contain several environmental safeguards, conservation measures and conditions for compliance by the Pro].ect developer while executing the Pro].ect work. As per the report of the MDMC, constituted by the MOEF for proper implementation of the conditions stipulated in the Environmental Clearance letter after their site visit on 09- 03-2010, it has been stated that the respondent no.9 had made encouraging attempts to follow the terms and conditions stipulated in the letter granting the Environmental Clearance. 16 ]1. It is of relevance to note here that the case was fixed for final hearing on 06-09-2010 in terms of the Order of this Court dated 26-07-2010. On 06-09-2010 when the case came up for hearing, adjournment was sought for on behalf of the petitioner on the ground of the inability of a senior counsel from Delhi engaged to conduct the case in appearing on that day. Accordingly, the case was adjourned to 15-09-2010 on which day the matter was finally heard. ]2. Before us, Dr. Doma T. Bhutia, Advocate, appearing on behalf of the petitioner, sought permission to press as preliminary submission on the question relating to restrictions imposed on entering into the North District of Sikkim. It was submitted that notification no.665/PS dated 27-09-1954 (Annexure 13 to the writ petition) entry of traders/agents into Dzongu area were strictly banned and by the Proclamation dated 30-08-1956 (Annexure 11) no outsider was permitted to enter into the North District without a valid permit issued by the Government. These laws being pre-merger laws are protected under clause (f) of Article 371F of the Constitution of India continues to be * 17 laws in enforce. Therefore, permitting the Project within the restricted area specified in those laws was illegal. ]3. That the respondent no.9 is a company registered under the Companies Act, 1956, and as per the recent amendment brought to the Registration of Companies, Act, Sikkim, 1961, it was essential for it to have been enlisted under the Registration of Companies, Act, Sikkim, 1961, before engaging in business in the State. This having not been complied with, the activity of the respondent no.9 company in carrying on with the Project is illegal. The learned counsel drew the attention of this Court to the following portion of the Registration of Companies (Amendment) Act Sikkim, 2007:- "2. In the Registration of Companies Act Sikkim, 1961, after clause (d) of sub Section (ii) of Section 2, the following shall be inserted, namely:- "(e) Notwithstanding anything contained herein, any company registered under Companies Act, 1956, shall apply for enlistment/identification under the Registration of Companies Act Sikkim, 1961 for the purpose of registration/ entry as a company under the Registration of Companies Act Sikkim, 1961." ]4, By making reference to Annexures 6 and 6A being the notice under Section 4(1) and declaration under Section 6 of the LA Act respectively, it was submitted that from the very preamble appended thereto it would be quite 18 evident that the land is being acquired for TUL, a private company, by the SPDC, the respondent no.7, entirely funded by the said company. Secondly, from the declaration under Section 6 of the IA Act (Annexure 6A to the writ petition), it also becomes quite clear that amongst the land that are being acquired, are also large tracts of Forest Land. It has been stated that as Forest Land cannot be acquired under the LA Act and any user of such land for non-forest purpose being not permitted under Section 2(2) of the Forest (Conservation) Act, 1980, the acquisition was illegal and that, even otherwise, acquisition of land for a private company was impermissible under Part VII of the LA Act. As per the learned counsel, the Agreement entered into between the State-respondent and the respondent no.9 company having not been published in the Official Gazette, it was invalid and that any action taken thereunder would be a nullity and non esf. fit/ ]5. It was next contended that the acquisition of a total area of 64.147 hectares of Forest Land situated in Shipgyer, Ramam, Chungthang and Theng blocks under the Chungthang Sub-Division and Shinghik Sentam, Kazor and Salim-Pakyel blocks under the Mangan Sub-Division, for the company and its consequent dereservation were in gross 19 violation of the Forest (Conservation) Act, 1980, the Wild Life (Protection) Act, 1972, and the Environment (Protection) Act, 1986, having been done without the prior approval of the MOEF as required under those laws. The fact that the clearance from the MOEF .had not been obtained is revealed by the letter dated 04-08-2006 (Annexure 19) issued by the MOEF, Government of India, respondent no.6, granting Environmental Clearance which was subject to the strict terms and conditions to be complied with. It is submitted that those terms and conditions had not been complied with and that respondents have carried on with the Project illegally despite such infraction of the mandatory conditions. ]6. It was further submitted that from the letter dated 02-11-2007, Annexure R3, approval granted by the MOEF, respondent no.6, was an approval only in principle permitting diversion of 83.0405 hectares of Forest Land sub].ect to fulfillment of mandatory condition and that it was only on those conditions being fulfilled was the final approval to be accorded by the MOEF. However, as per the petitioner, the respondents proceeded to commence with the Project works without waiting for the final approval in gross violation of the Forest (Conservation.) Act, 1980, and 20 is an affront to the authorities thereunder. The learned counsel referred to Clauses 4.2, 4.3 and 4.4 of the Forest (Conservation) Act, 1980, Rules and Guidelines, wihich are reproduced below for convenience:- ``4.2 Two Stage Clearance of Proposals Forestry clearance will be given in two stages. In lst stage, the proposal shall be agreed to in principle, and after receipt of compliance report from the State Government in respect of compliance of the stipulated conditions regarding transfer and mutation of non-forest area identified for compensatory afforestation, if any, and transfer of funds in favour of Forest Department, etc., formal approval under the Act shall be issued. 4:3 Anticipatory Action by the State/UT Governments Cases have come to the notice of the Central Government in which permission for diversion of forest land was accorded by the concerned State Government in anticipation of approval of the Central Government under the Act and/or where work has been carried out in forest area without proper authority. Such anticipatory action is neither proper nor permissible under the Act which clearly provides for prior approval of the Central Government in all cases. Proposals seeking ex-post-facto approval of the Central Government under the Act are normally not entertained. The Central Government will not accord approval under the Act unless exceptional circu instances justify condonation. However, penal compensatory afforestation would be insisted upon by the MOEF on all such cases of condonation. 4.4 Projects Involving Forest as well as Non- forest lands Some projects involve use of forest land as well as non-forest land. State Governments/project authorities sometimes start work on non-forest lands in anticipation 21 of the approval of the Central Government for release of the forest lands required for the projects. Though the provisions of the Act may not have technically been violated by starting of work on non-forest lands, expenditure incurred on works on non-forest lands may prove to be infructuous if diversion of forest land involved is not approved. It has, therefore, been decided that if a project involves forest as well as non-forest land, work should not be started on non-forest land till the approval of the Central Government for release of forest land under the Act has been given." Referring to Clause 4.2, it was submitted that the respondents had proceeded with the Project without waiting for the second stage clearance in gross infraction of the terms of the Central Government and Clauses 4.3 and 4.4 of the guidelines referred to above. cay ]7. It may be noted that the learned counsel for the petitioner before opening her arguments submitted a written argument which was taken on record. However, during the course of the hearing before us, her submissions were restricted only to what have been set out above. It is also of relevance to note that in paragraph 2.2(iv) of his rejoinder to the counter affidavit of the respondents no.8 and 9, the petitioner has specifically pleaded that ``the issue of environment clearance has not been challenged in the present petition which only argues for proper implementation of the terms and conditions laid down by 22 the MOEF in Environment Clearance dated 4th August, 2006" thereby narrowing down the scope of the written petition. However, in the interest of dispensing with complete justice, we have deemed it appropriate also to consider all his contentions including those set out in the written argument that were not placed before us. For t:he sake of convenience, the written arguments are reproduced below in verbatim:- "WRITTEN ARGUMENT ON BEHALF OF ThE PETITIONER. The humble submission of the above named