Athup Lepcha v. The State of Sikkim

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 Y 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. ]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. i * 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. ]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 fit/ 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. ]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 petitioner MOST RESPECTFU LLY SH EWETll : - I. ISSUES

1.1. This case arises from the impugned Notification challenge on following accounts. (Anx-6 to 9-8, pp-101-123) A. PRELIMINARY i) 27th of sept.1954 Govt of Sikkim strictly banned the entry of traders to the District North Sikkim (Anx - 13-pp-129) ii) 3oth/08/1956 As per the proclamation of the then Maharaja required permit to entry. (Anx-11, pp-126).

#8. Kancheniuhaa National Park (Protected Area).

1.2. a). 26th August, 1977 (Anx- 25-A, pp- 196) KNP declared by b) 19th May,1997 (Anx-25-B, pp-197) the state Govt. KNP Core Zone expended from 850 sq. Kin to 1784 sq.kms, 23 c ) 7th Feb, 2000 (Anx-25,pp-192) BR (Biosphere Reserved) Areas 2619.92 sq.kin. by the MOEF d) MAP of KNP declared as protected Areas. (Anx-25-C,pp-199). C. SPDC comi)anv & TUL ComDanv. i) 16/12/1998 SPD company registered. ii) 16/06/2010 Ref No. 16(341) LD/2007/950 (Anx-P- VIII, PP- : State has not yet issued enlistment to TUL Company as required under Registration of Companies Act, Sikkim 1961. D. Land Acquisition E2ats a) 19th oct, 2005 (Anx-2, pp-95) : TUL company letter t:o Secretary, E&P Deptt, Govt. of Sikkim for the requirement of forest and pvt. Land 161 hec for Teesta- Stage-III at Chungthang. b) 14th Nov, 2005 (Anx-4 pp-98) Chief Engineer(T)P&E c) 8th of April, 2007 wrote to D.C. to initiate joint inspection to acquire both Forest and private lands for TUL Company. (Anx-14, pp-130 w.p.) public ob].ection against land acquisition for the said Project Stage-III HEP at Chungthang. d) 05.03.2007, No.6/301/LR&DMD(S), (u/s-4(1)) [Anx-7, pp-110-111 w.p.I e) 30.03.2007 No.8/832/II/ LR&DMD(S) (u/s-4) [Anx-6, pp-101-103 w.p.I f) 20.06.2008 No.39/301/II/LR&DMD(S), (u/s-4 (1) [Anx- 8, pp-115-116 w.p.] g) 24.12.2008 (u/s-4 (1) [Anx-9, pp-120-121 w.p.I h) 22/05/2007 No. 15/301/LR & DMD(s) (declaration u/s- 6) [Anx-7-A, pp-112-113 w.p.] i) 27/08/2007 No.23/832/II/LR & DMD(S) -do - [Anx-6- A, pp-104-107 w.p.I 24 j) 25.09.2008 No.73/301/II/LR & DMD(s) -do- [Anx-8- A,pp-117-118] k) 03/08/2009 No.38/301/II/R&DMD (S) -do-[Anx- 9-A, pp-122] I) 3rd July, 2007-Notice u/s-9 [nx-7-B.PP-114 W-P.] in)13th Nov, 2007 -do-[Anx-6-B, pp-198] n) 13`h Nov, 2008 -do-[Anx-8-B, pp-119] o) 12th Feb, 2010 -do-[Anx-9-B,pp-123] E. COMPENSATION OF PVT & FOREST LANDS. i) Form "A" Appendix '1' Rule-3 (Anx-3, pp-97) acquisition of land by TUL Company as proposed areas both of forest and pvt lands 72.569 hec Mangan Sub- Division & 95.5296 ha at Chungthang sub-division and entire compensation shall be borne by TUL Company (Respondent No.9). ii) 31St May, 2008 : state entire cost of compensation paid by TUL [Anx-15, pp-131 -135 w.p.] iii) 1st of July, 2008 [Anx-16, pp-136-137] states entire Compensation paid by TUL Company. iv) 3rd July, 2009 (Anx-17, pp-138-139] compensation paid by TUL Company. v) 30th January, 2010 (Anx-18, pp-140 w.p.) compensation amount paid by TUL Company.

#11. SuBMISSION ON FACTS:

2.1. As reported by the State Respondent No. 3 in their own documents viz 2009 News letters [Anx-26,DD- .200 to 204] that the State of Sikkim is tiny Himalayan State is ecologically sensitive & fragile. Further states that rich wetlands has been the attraction for several hydro power Project and at the rate of diminishing water resources, in decades to come, Sikkim may no longer hold any of these hydro Project at all. The report further states that "change in the water flows in rivers originating in the Himalayan region would adversely affect the ongoing hydel power station". 25

2.2. 30th August, 1956 "Droclamatioh" of the then Chogyal protected under Article-371F (k) Of the Constitution that the North Sikkim in particular Chungthang, Lachen, Lachung & Dzongu are restricted areas due to strategically sensitive as it is boarder areas shares it boundary with China and inhabited by the primitive tribes Lepcha and Bhutia tribes others are restricted from entering to the above said areas. Kindly Note: [AIlx-11, pp-126-127, Artx-12, pp-128, Arix-24-C, ppl88-191 w.p.I. LA. Act. 1894.

2.3. The following points may be noted:- (i) as it clearly laid down that if the land is acquired for "PuBLIC PURPOSE", the costs of acquisition for payment of compensation has to be paid wholly or partly out of 'Public Revenue' or some fund controlled or managed by a local authority as held in the case of case of Jhandu Lal \rs State Of Punjab, reported in AIR 1961 SC 343. Viljibhai \rs State of Bombay reported in AIR 1963 SC 1890, "entire compensation was paid out of the fund of the company; the acquisition would be bad in law." Public purpose could not have been declared under section-6, (ii) Form "A" Appendix .1' Rule-3 (Aiix-3, pp-97) acquisition of land by TUL Company as proposed areas both of forest and pvt lands 72.569 hec Mangan Sub- Division & 95.5296 ha at Chungthang sub-division and entire compensation shall be borne by TUL Company (Respondent No.9). iii) 31St May,2008 : [Anx-15, pp-131 -135w.p.] states entire cost of compensation paid by TUL iv) 1st of July, 2008 [Anx-16, pp-136-137] states entire Compensation paid by TUL Company. (v) 3rd July, 2009 (Anx-17, PP-138-139] compensation paid by TUL Company. (vi) 30th JanLlary, 2010 (Anx-18, pp-140 w.p.) compensation amount paid by TUL Company. (v) Rule-4 of company Rules, 1963 prohibit the State Government from making declaration u/s-6 in the case land is acquire for private company. 26 (vii) PUBLIC PURPOSE link with the Environment, right to protest as phrase person interested mean all persons rights (viii) The Counter Affidavit (pr. 4 and 5 pp. 14 -18) does not speak of any contribution other than 26% equity in the Company. This is not a contribution to the Pro].ect for which the lands both the pvt and forest are acquired. (ix) u/s-17( 1) &(4)onthepleaof" URGENCY"todeprived the fundamental statutory rights u/s-5-A to file objection. It is apparent that urgency clause is invoked to evade sec-5-A (x) No materials for consideration to dispense with sec, 5 'A' and no justification to evade sec. 5 `A' it was done in order to acquired illegally the forest land admeasuring 64.147 ha for company TUL invoked in colourable exercise of power. (xi) on 24,12.2008-notification u/s-4 was done (whereas (xi) on 03.08.2009-notification u/s-6 was done and (xiii) on 27.01.2010 notification u/s-9 is recently issued and (xiv) 12/02/2010 ob].ection if any, was called for u/s-8 IAAct. This by itself negates the exercise of power u/s-17(4) by which inquiry u/s-5-A was waived off.

2.4. Forest clearance ` a) dt.27/08/2007 No.23/832HI/LR & DMD(S) declaration u/s- 6.[Aiix-6-A, pp-104-107 w.p] acquired forest land of Chunathana & ShiDaver of North Sikkim are not denied by the State Respondents and the Respondent Compenies. b) 22/05/2007 No.15/301/LR & DMD(s) (declaration u/s-6) [Anx-7-A, pp-112-113 w.p.I acquired forest lands from the Blocks of Sinahik. Sentam, Kazor, & Salim Pakvel at North Sikkim are also not denied both the State Respondents and the Respondents companies. [Kindly note: para-38, pp-31 of w.p. admitted by companies at their para-38, pp437 of their counter affidavit with regards for forest lands of 64.147 ha acquired under L.A.Act, ]. Note: Forest lands of 64.147 ha acquired in violation of sec-2 of FCA, 1980 without prior approval from MOEF of Gol c) dt.3rd June, 2009-[Anx-20,pg-146 w.p.I clearly shows that no approval was ever sought from the Ministry with regard to the 64.147 ha of the forest land of which have been acquired vide thus this acquisition is completely illegal, 27 d) dt. 4th August, 2006 [Anx-19, pp-141 w.p.I clearly states FOREST CLEARANCE is yet to be obtained. Kindly Note= -Statements showing the payment of compensation of Khasmal forest land of 64.147 ha u/s-17(4) of L.A.Act,1984 [Anx-P- IX, pp-878 of re].oinder of petitioner & Note sheets at page No.924 of same re].oinder.] Kindly Note:-Khasmal /Khasland is a forest land u/s-2 (i) of The Sikkim Forests, Water Courses and Road Reserve ( Preservation and Protection) Act, 1988. e) 2nd /11/2007 (Anx-30, pp-235 w.p.) 83.0405 of forest lands is in principal approval but not the final forest clearance. f) ADDlication and aDDroval i) dt. 27.11.2006 (ATix-R-7, pp-609 of c.aft. of company) made application to Forest Department (Respondent No,3) for the permission of diversion of 83.0405 forest land from MOEF. ii) dt. 13-12-2006 Forest Deptt. submitted an application for proposal for the diversion of forest land of 83.0405 of forest land to non forest purpose u/s-2 FCA, 1980. iii) 2nd Nov, 2007 is only the in principle approval from MOEF. (Respondent No.6). Hence in principal approval or clearance is not final clearance and therefore pre-emptive that the final clearance will be given is malafide action on the part of the State Respondents and the Respondent company. (TUL). iv) 1st Of January, 2008.[Anx-B, pp-706 Of c.f. of company] states that Project construction work stared. g) Guidelineson FCA,1980 &Rules, I) 4.2 Of the guidelines clearly laid down two stages of proposals First proposal shall be agreed in principle and after compliance of the stipulated terms and conditions for compensatory afforestation if any, transfer of funds, in favour of forest dept etc formal approval under the Act shall be given issued. 11) 4.3. of the guidelines= Anticipatory action is neither proper nor permissible under the said Act. Ill) 4.4. of the guidelines; Project involving Forest as well as Non-forest lands work should not be started on non-forest land till the approval central Govt. ®

2.5. Wildlife As far as the National Park is concerned, the following should be noted; 28 (i) The Kanchenjunga National park was declared on 19 May 2007 [see Writ Petition pp.197}. (ii) The periphery and biosphere reserved were declared on 7 February 2007 [see Writ Petition pp.182] (iii) It has been laid down that environmentally inimical activity should maintain a distance from the National Park. (iv) And that the Project areas fall within the Biosphere reserved forest areas i/c buffer zone which is admitted by the answering company respondent in para4 at pg 444 of their counter affidavit. (v) 28th June, 2006 summary report of 44th meeting of Expert Committee admitted the facts at Anx-R-17. Ditr £9Z of c.f. company "Project site is witliin the bulffer zone Of biosphere reserved" and further report "regarding the impact on wild life during the construction to be submitted". (vi) dt. 2/06/2006 [Anx-20,pp-713 c.f. company] also reflects that "Project site is located near KNP so sufficient protection measures in terms of strengthening the existing man power" and further more states that "both lachen & Lachung rivers are the main habitat of the many fishes.„ (vii) Also state in the same letter dt.2/06/2006 at pp- 715 at point-3 "due to the submergence, the flora and fauna Of the area is likely to be depleted forever. (viii) Dt.18/02/2010 [Anx-18,pp-700 Of c.f. company] TUL company recently submitted the application to MOEF (Resp. No.6) for necessary clearance of NBWL (ix) 30-4-2010 (Anx-P-II.pp-1026 of rejoinder to company] MOEF suggest to obtain clearance from the Steering committee of National Board for Wildlife.

2.6. Hot-SDot of Bio-diversitv: a) State of Sikkim is considered as one of the Hot Spot of Biodiversity and it has been exhibited that numbers of medical plant & Herbs are found in the forest lands which is acquired for the Project. (Report on Hot spot diversity are marl(ed and annexed as Anx-P-I, pp 98711025 Of rejoinder to company). 29 b) As far as the biodiversity is concerned it is not denied that biodiversity is affected. Kindly Note: The following exhibits have not been challenged and are admitted: {Anx-25, pp-192-195, Anx-25-A, pp.196-198, Anx-25-C, pp -199, Anx- 26, pp.ZOO-204, Anx-28 Golly, pp.213-221} & News letter -2009 (anx-26, pp-202 clearly mentioned that Sikkim may longer hold any of these Hydro- Project". c) Due to mindless blasting and other activities without prior approval or clearance viz, Forest clearance, Environment clearance, wild life clearance etc. Kindly note: Anx-28 colly, pp-213 -221 w.p.) Page-1021 Sikkim Express report (re].oinder to Company) of death of endangered species Kindly Note; Anx-P-III, pp-1028 report of Department of^Mines, Minerals & Geology, govt. of Sikkim reported damages caused by Stage-III HEP under construction of TUL Company. Local News paper report-[Anx-P-IV pp-1040] damage caused by Stage-Ill HEP at Chungthang under TUL Company. GAG report- Anx-P-V, pp-1062 clearly states the Compensatory Afforestation, CAT Plan, Wild life preservation need to implemented simultaneously. dt. 21st of April, 2009 summary report of 25th meeting of Expert Appraisal Committee (EAC) (Anx-P- VI pp-1152 Sociocultural impact on indigenous tribal community.

2.7. Spending of large amount of money cannot be a defense for violation of all the mandatory statutory provisions, violation of rights of poor farmers and environmental degradation. These cannot be compensated in terms of money. It is not only the people but also the environment, wildlife and biodiversity which have been adversely affected by the Project. SUBMISSION ON LAW= I. On the Environment t7#..

1.1. The parameters under which environment decisions have to be made are indicated in various decisions of the Hon'ble Supreme Court. i.) The precautionary principle an polluter pay principle with lexical priority to the former. - t` 30