ATHUP LEPCHA Vs. STATE OF SIKKIM
LAWS(SIK)-2010-10-11
HIGH COURT OF SIKKIM
Decided on October 14,2010

ATHUP LEPCHA Appellant
VERSUS
STATE OF SIKKIM,UNION OF INDIA,MANAGING DIRECTOR,Secretary, Land Revenue And Disaster Management Deptt,Secretary, Forest Department,District Collector, North District,Principal Chief Engineer-Cum-Secretary Respondents

JUDGEMENT

WANGDI,J. - (1.) THIS is a writ petition filed in the form of a Public Interest Litigation (in short "PIL") seeking to challenge the ongoing 1200 MW Teesta Stage III 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, inter alia, 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.
(2.) 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. In the writ petition, the petitioner has primarily raised the following issues: - (a) That in order to execute the Project 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 objections to the acquisition and that the mandatory requirements under Section 4 of the LA 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 LA Act and the Rules made thereunder; (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; (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. Cardamom, the only cash crop of the people and main 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; (l) 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; (m) 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, inter alia, 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.
(3.) 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 objections: - (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; (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, 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 Implementation 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. (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 of the acquisition of the land has been funded wholly by a private company. ;


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