WP(PIL)/5/2010 of Athup Lepcha Vs State of sikkim on 14 October 2010

JUDGMENT

Wan8di' J.

This js a writ petition filed in the form of a PublicInterest Litigation (in short "PIL| seeking to challenge theongoing 1200 MW Teesta Stage Ill Hydroelectric Project (inshort "Project| by M/s. Teesta Urja Ltd. (in short "TUL|,respondent no.9, in Chungthang and Mangan Sub-Divisionsof North Sikkim, r.nter a/t.a, for having violated theprovisions of Land Acquisition Act, 1894, (in short "LA Act")• in acquiring Reserve Forest Land for the Project,commencing with the Project work without obtaining thenecessary clearances under the Forest (Conservation) Act,1980, and the Environment (Protection) Act, 1986, by therespondents.

The petitioner is a Member of the Lepcha TribalCommunity and claims by profession to be an agriculturistand a social worker working for the benefit and upliftmentof the people in general and is also a Member of a forumcalled Affected Citizens of Teesta (in short ``ACT"), anorganization said to be working for the cause of environment protection and preservation of forests situatedin the villages of the North District of Sikkim. Therespondents no.1 to 5 are the State of Sikkim representedby the Chief Secretary and other authorities under theGovernment of Sikkim. The respondent no.6 is the Union ofIndia through the Ministry of Environment and Forest (inshort ``MOEF") and the respondent no.7 is the ManagingDirector, Sikkim Power Development Corporation Ltd. (inshort ``SPDC'') while the respondents no.8 and 9 are theManaging Directors of Athena Projects Private Limited andTUL respectively.

3-In the writ petition, the petitioner has primarilyraised the following issues:-raised the following issues:- (a) That in order to execute the Pro].ect an Agreementwas entered into between the Energy and PowerDepartment, Government of Sikkim, respondentno.5 and M/s. Athena Projects Private Limited andTUL, respondents no.8 and 9, in Clause 3.3(a) ofwhich it had been provided that the Government ofSikkim would acquire lands in association withSPDC, respondent no.7, at the request and expenseof the company in accordance with the LA Act. Thiswas not permissible under the LA Act; ifi (b) That the aforesaid Agreement dated 18-07-2005had not been published in an Official Gazette as ismandatorily required under Section 42 of the LAAct rendering the entire process of acquisition ofland illegal;had not been published in an Official Gazette as ismandatorily required under Section 42 of the LAAct rendering the entire process of acquisition ofland illegal;

(c) That the urgency provision in Section 17(1) of theLA Act was invoked in order to evade the provisionsof Section 5A depriving the land owners of theirright of raising ob].ections to the acquisition andthat the mandatory requirements under Section 4of the IA Act was not complied with;LA Act was invoked in order to evade the provisionsof Section 5A depriving the land owners of theirright of raising ob].ections to the acquisition andthat the mandatory requirements under Section 4of the IA Act was not complied with; (d) That the declarations made under Sections 6 and 9of the LA Act have been issued arbitrarily andmechanically without application of mind inviolation of the laid down procedure under the IAAct and the Rules made thereunder;of the LA Act have been issued arbitrarily andmechanically without application of mind inviolation of the laid down procedure under the IAAct and the Rules made thereunder; (e) That the Power Project in question has been takenup 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 intothe North District of Sikkim is strictly prohibited;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 intothe North District of Sikkim is strictly prohibited; Ct'

(f) That the notification no.665/PS dated 27-03-1954which bans the entry of all traders/agents intoDzongu area has also been ignored and, also thatDzongu protected area within which constructionactivities of the Projects are being carried on, fallswithin the Restricted Khanchendzonga BiosphereReserve Area;which bans the entry of all traders/agents intoDzongu area has also been ignored and, also thatDzongu protected area within which constructionactivities of the Projects are being carried on, fallswithin the Restricted Khanchendzonga BiosphereReserve Area; (g) That the acquisition of the land being for TUL, aprivate company, and funded by TUL is in violationof Part VII of the LA Act, and does not fall withinthe meaning of ``public purpose" as defined underSection 3(f) of the LA Act;private company, and funded by TUL is in violationof Part VII of the LA Act, and does not fall withinthe meaning of ``public purpose" as defined underSection 3(f) of the LA Act; (h) That the entire acquisition was bad in as much asthe power under Section 17(1) was invokedarbitrarily without jurisdiction as the ProtectedForest Lands were acquired without obtainingnecessary Forest and Environment Clearance fromthe MOEF;the power under Section 17(1) was invokedarbitrarily without jurisdiction as the ProtectedForest Lands were acquired without obtainingnecessary Forest and Environment Clearance fromthe MOEF;

(i) That the right to livelihood of the people underArticle 21 of the Constitution of India had beenviolated due to diversion of the Protected ForestLand resulting in environmental pollution.Article 21 of the Constitution of India had beenviolated due to diversion of the Protected ForestLand resulting in environmental pollution.

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Cardamom, the only cash crop of the people andin.ain source of their income has been adverselyaffected thereby; (j) That leasing of the land to a private company,namely, TUL, for use of the Project has resulted incausing dust and water pollution and destruction ofthe adjoining forests, environment and ecology ofthe area depriving the people of the right to lifeenshrined in Article 21 of the Constitution of Indiarendering the lease deed in respect of the land asnamely, TUL, for use of the Project has resulted incausing dust and water pollution and destruction ofthe adjoining forests, environment and ecology ofthe area depriving the people of the right to lifeenshrined in Article 21 of the Constitution of Indiarendering the lease deed in respect of the land as void.

(k) That the lease deed is also bad for the reason thatthe land let out on lease falls within theKhanchendzonga Biosphere Reserve and protectedareas of Khanchendzonga National Park;the land let out on lease falls within theKhanchendzonga Biosphere Reserve and protectedareas of Khanchendzonga National Park;

(I) That the conditions laid down for Catchment AreaTreatment (in short ``CAT'') Plan prescribed in theEnvironmental Management Plan (in short ``EMP'')report have not been complied with during theexecution of the Project works;Treatment (in short ``CAT'') Plan prescribed in theEnvironmental Management Plan (in short ``EMP'')report have not been complied with during theexecution of the Project works; (in) That the Environmental Clearance given in respectof 83.0405 hectares of Forest Land of North Districtof 83.0405 hectares of Forest Land of North District being vague, devoid of demarcations, plot numbersand blocks, enables the respondent no.9 companyto 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 mandatoryCompensatory Afforestation have been compliedwith;`Provisional Clearance' under the Forest(Conservation) Act, 1980, including the mandatoryCompensatory Afforestation have been compliedwith; (o) That the entire exercise undertaken by therespondents for exploitation of the biodiversitycondition is in contravention of the provisionscontained in the Biological Diversity Act, 2002;respondents for exploitation of the biodiversitycondition is in contravention of the provisionscontained in the Biological Diversity Act, 2002;

In the above circumstances, it has been prayed by thepetitioner, f.nter a/t.a, for issue of a writ of mandamusdeclaring the entire exercise of land acquisition by theGovernment of Sikkim as being illegal and in contraventionof the LA Act and other statutory provisions, permanentlyrestraining the Government from taking any action infurtherance of the impugned notifications, and forcancellation of the Project for violation of the EnvironmentalClearance and EMP for preservation of the BiosphereReserve Areas and the Khanchendzonga National Park.

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4.

4. In the counter-affidavit filed on behalf of all theState-respondents through the Chief Secretary, for andbehalf of the other authorities, namely, respondents no.2,3, 4, 5 and 7, all material allegations set out in the writpetition have been categorically denied. At the outset, theyhave raised the following preliminary ob].ections:-

(i) That the land measuring about 121.1676 hectaresnotified for acquisition under Sections 4(1) read with17(1) of the LA Act for the purpose of development ofthe Project has already been acquired, compensationpaid therefor and possession already taken over.Therefore, the acquisition proceedings standcompleted. By the awards dated 25-07-2007, 03-12-2007, 16-12-2008 and 24-12-2008, compensationwere disbursed to the claimants in terms of Section 11of the LA Act except for an area measuring 2.4980hectares being a portion of 3.8170 hectares(notification dated 24.12.2008 relates to 3.8170hectares). Under such circumstances, the land inquestion stands vested completely in the Governmentfree from all encumbrances under Section 16 of the LAAct leaving no scope for questioning the validity of theacquisition proceedings; ®

(ii) That having regard to the fact that the preliminarynotifications for acquisition of the land had beenissued in the year 2007-08 and the award passed on25-07-2007, 03-12-2007 and 16-12-2008 and thatthe compensation for the acquired land disbursed andpossession thereof taken by the Government, followedby the SPDC leasing them out to the respondent no.9vide lease dated 20-03-2008 and 26-07-2008, and thework on the Project having progressed to an advancedstage which now is going on in full swing, the writpetition is clearly delayed and the petitioner was guiltyof gross delay and laches.notifications for acquisition of the land had beenissued in the year 2007-08 and the award passed on25-07-2007, 03-12-2007 and 16-12-2008 and thatthe compensation for the acquired land disbursed andpossession thereof taken by the Government, followedby the SPDC leasing them out to the respondent no.9vide lease dated 20-03-2008 and 26-07-2008, and thework on the Project having progressed to an advancedstage which now is going on in full swing, the writpetition is clearly delayed and the petitioner was guiltyof gross delay and laches.

(iii) That the petitioner is guilty of suppression of materialfacts in as much as it has not been disclosed in thewrit petition that in an appeal filed by the ACT ofwhich the petitioner is the President, before theNational Environmental Appellate Authority (in short`NEAA') under the National Environmental AppellateAuthority Act, 1997, against the grant ofEnvironmental Clearance to the Project in question,they had raised the very same issues contained in thepresent writ petition, i.e., the issues on the questionof seismicity, Khanchendzonga National Park,facts in as much as it has not been disclosed in thewrit petition that in an appeal filed by the ACT ofwhich the petitioner is the President, before theNational Environmental Appellate Authority (in short`NEAA') under the National Environmental AppellateAuthority Act, 1997, against the grant ofEnvironmental Clearance to the Project in question,they had raised the very same issues contained in thepresent writ petition, i.e., the issues on the questionof seismicity, Khanchendzonga National Park, cy Earthquake, Public Hearing, Biodiversity, FaultyEnvironment Management Plan, Environment ImpactAssessment Plan and that, the said appeal had beendismissed by the NEAA . The writ petition, therefore,deserves to be dismissed on this ground alone as norelief in equity can be granted in his favour,particularly in a PIL.

(iv) The State Government of Sikkim having agreed underthe lmplementation Agreement dated 18-07-2005 toprovide land for the Project to the respondent no.9,TUL, the provisions of Sections 39 to 42 of the LA Actwould have no application being covered by Section43 of the said Act. Under such circumstances, allissues with regard to the alleged illegality of the landhaving been acquired for a private company by theState Government would be rendered redundant andirrelevant.the lmplementation Agreement dated 18-07-2005 toprovide land for the Project to the respondent no.9,TUL, the provisions of Sections 39 to 42 of the LA Actwould have no application being covered by Section43 of the said Act. Under such circumstances, allissues with regard to the alleged illegality of the landhaving been acquired for a private company by theState Government would be rendered redundant andirrelevant.

(v) That the State Government holding 26% of equityshare capital in the respondent no.9, TUL, is a -constituent of the said company in terms of theImplementation Agreement dated 18-07-2005 and,therefore, it would be incorrect to state that the costshare capital in the respondent no.9, TUL, is a -constituent of the said company in terms of theImplementation 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 whollyby a private company.

5.

5. That apart from the above forming substantialpart of their reply, the State respondents have denied theallegations of violation of the provisions of the Forest(Conservation) Act, 1980, the Wildlife (Protection) Act,1972, the Environment (Protection) Act, 1986 and theBiological Diversity Act, 2002. It has been stated that allrequirements under those statutes as stipulated by theMOEF have been fully complied with before implementationof the Project work, a fact that was also considered by theCentral Empowered Committee (CEC), a body constitutedunder the Orders of the Hon'ble Supreme Court, and on itsrecommendations the Hon'ble Supreme Court, vide itsOrder dated 28-09-2007 had directed the MOEF to confirmcompliance of the Rules by the respondent and that onlyafter such confirmation, the MOEF vide letter dated 02-11-2007, granted permission for diversion of Forest Land forthe Pro].ect. The respondent no.9 commenced with thework on the Pro].ect only thereafter.

It has been categorically denied by them thatReserve Forest Land or Forest Land or Protected Forest Land/Khasmal Land had been leased out by theGovernment of Sikkim to the respondent no.9. The landalleged to have been leased out to the respondent no.9 bythe SPDC, respondent no.7 for implementation of thePro].ect work, comprised of only the acquired private landand so far as the Forest Land is concerned it was divertedfor its use for non-forest purposes in terms of thepermission granted by the MOEF and that the ownership ofsuch Forest Land as well as the private land acquired underthe acquisition proceedings remain under the State-respondents.

That the conditions stipulated by the MOEF underthe Environment (Protection) Act, 1986 and the Forest(Conservation) Act, 1980 have been meticulously compliedwith, a fact that has been confirmed by the Multi-Disciplinary Monitoring Committee (in short ``MDMC''), abody formed by the MOEF, during their site visit on 09-03-2010. In the above premises amongst others, it has beenstated that the writ petition being clearly not maintainabledeserved to be dismissed.

8. The respondent no.9, TUL, in their counter-affidavit, has raised substantially the same preliminary ob].ections as raised by the State-respondents and havedealt with the various allegations contained in the writpetition reiterating the stand of the State-respondents thatnone of the laws had been violated by them as alleged inthe writ petition. It has been stated that the writ petitionhas been filed by the petitioner for redressal of his politicalmotives and had not approached the Court bond f/.de. Thatthe petitioner is an Ex-MLA from the Pro].ect area who seeksto attain political mileage by instituting the presentproceeding in the garb of PIL.

9. It has further been stated that in view of theadvanced stage of the Project where the respondent no.9has spent Rs.3083 crores out of the envisaged cost ofRs.5705.055 crores, after having undertaken majormitigative measures stipulated by the MOEF and major partof the work having been completed having regard to thefact that time is the essence of the Agreement requiring thecompletion of the Project by 2011-12, the respondent no.9was now at a disadvantageous position and that anyinterference in the progress of the work at this juncturecannot put the clock back resulting in immense public lossin terms of revenue, employment opportunities to thepeople, benefits accruing from the social upliftment i programmes being undertaken by the respondents, etc.and, therefore, the writ petition is liable to be dismissed onthis ground also.

]0. The respondent no.6, the Secretary, MOEF,Government of India, in his counter-affidavit has dealt withthe issues pertaining to the allegations of violation of theForest (Conservation) Act, 1980 and the Environment(Protection) Act, 1986 stating that the Ministry hadconveyed the mandatory Environmental Clearances underthose Acts for development of the Project after dueconsideration of all relevant aspects by following the laiddown procedures. It is stated that the EnvironmentalClearance and the Forest Clearance issued by the MOEFcontain several environmental safeguards, conservationmeasures and conditions for compliance by the Pro].ectdeveloper while executing the Pro].ect work. As per thereport of the MDMC, constituted by the MOEF for properimplementation of the conditions stipulated in theEnvironmental Clearance letter after their site visit on 09-03-2010, it has been stated that the respondent no.9 hadmade encouraging attempts to follow the terms andconditions stipulated in the letter granting theEnvironmental Clearance.

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]1. It is of relevance to note here that the case wasfixed for final hearing on 06-09-2010 in terms of the Orderof this Court dated 26-07-2010. On 06-09-2010 when thecase came up for hearing, adjournment was sought for onbehalf of the petitioner on the ground of the inability of asenior counsel from Delhi engaged to conduct the case inappearing on that day. Accordingly, the case wasadjourned to 15-09-2010 on which day the matter wasfinally heard.

]2. Before us, Dr. Doma T. Bhutia, Advocate,appearing on behalf of the petitioner, sought permission topress as preliminary submission on the question relating torestrictions imposed on entering into the North District ofSikkim. It was submitted that notification no.665/PS dated27-09-1954 (Annexure 13 to the writ petition) entry oftraders/agents into Dzongu area were strictly banned andby the Proclamation dated 30-08-1956 (Annexure 11) nooutsider was permitted to enter into the North Districtwithout a valid permit issued by the Government. Theselaws being pre-merger laws are protected under clause (f)of Article 371F of the Constitution of India continues to be laws in enforce. Therefore, permitting the Project withinthe restricted area specified in those laws was illegal.

]3. That the respondent no.9 is a companyregistered under the Companies Act, 1956, and as per therecent amendment brought to the Registration ofCompanies, Act, Sikkim, 1961, it was essential for it tohave 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 therespondent no.9 company in carrying on with the Project isillegal. The learned counsel drew the attention of thisCourt to the following portion of the Registration ofCompanies (Amendment) Act Sikkim, 2007:- "2. In the Registration of Companies Act Sikkim,1961, after clause (d) of sub Section (ii) of Section2, the following shall be inserted, namely:- "(e) Notwithstanding anything contained herein,any company registered under Companies Act,1956, shall apply for enlistment/identification underthe Registration of Companies Act Sikkim, 1961 forthe purpose of registration/ entry as a companyunder the Registration of Companies Act Sikkim,1961."

]4, By making reference to Annexures 6 and 6Abeing the notice under Section 4(1) and declaration underSection 6 of the LA Act respectively, it was submitted thatfrom the very preamble appended thereto it would be quite fit/

evident that the land is being acquired for TUL, a privatecompany, by the SPDC, the respondent no.7, entirelyfunded by the said company. Secondly, from thedeclaration under Section 6 of the IA Act (Annexure 6A tothe writ petition), it also becomes quite clear that amongstthe land that are being acquired, are also large tracts ofForest Land. It has been stated that as Forest Land cannotbe acquired under the LA Act and any user of such land fornon-forest purpose being not permitted under Section 2(2)of the Forest (Conservation) Act, 1980, the acquisition wasillegal and that, even otherwise, acquisition of land for aprivate company was impermissible under Part VII of the LAAct. As per the learned counsel, the Agreement enteredinto between the State-respondent and the respondent no.9company having not been published in the Official Gazette,it was invalid and that any action taken thereunder wouldbe a nullity and non esf.

]5. It was next contended that the acquisition of atotal area of 64.147 hectares of Forest Land situated inShipgyer, Ramam, Chungthang and Theng blocks under theChungthang Sub-Division and Shinghik Sentam, Kazor andSalim-Pakyel blocks under the Mangan Sub-Division, for thecompany and its consequent dereservation were in gross violation of the Forest (Conservation) Act, 1980, the WildLife (Protection) Act, 1972, and the Environment(Protection) Act, 1986, having been done without the priorapproval of the MOEF as required under those laws. Thefact that the clearance from the MOEF .had not beenobtained is revealed by the letter dated 04-08-2006(Annexure 19) issued by the MOEF, Government of India,respondent no.6, granting Environmental Clearance whichwas subject to the strict terms and conditions to becomplied with. It is submitted that those terms andconditions had not been complied with and thatrespondents have carried on with the Project illegallydespite such infraction of the mandatory conditions.

]6. It was further submitted that from the letterdated 02-11-2007, Annexure R3, approval granted by theMOEF, respondent no.6, was an approval only in principlepermitting diversion of 83.0405 hectares of Forest Landsub].ect to fulfillment of mandatory condition and that it wasonly on those conditions being fulfilled was the finalapproval to be accorded by the MOEF. However, as per thepetitioner, the respondents proceeded to commence withthe Project works without waiting for the final approval ingross violation of the Forest (Conservation.) Act, 1980, and

is an affront to the authorities thereunder. The learnedcounsel referred to Clauses 4.2, 4.3 and 4.4 of the Forest(Conservation) Act, 1980, Rules and Guidelines, wihich arereproduced below for convenience:- ``4.2 Two Stage Clearance of Proposals Forestry clearance will be given in twostages. In lst stage, the proposal shall beagreed to in principle, and after receipt ofcompliance report from the StateGovernment in respect of compliance of thestipulated conditions regarding transfer andmutation of non-forest area identified forcompensatory afforestation, if any, andtransfer of funds in favour of ForestDepartment, etc., formal approval under theAct shall be issued.

4:3 Anticipatory Action by the State/UTGovernments Cases have come to the notice of the CentralGovernment in which permission fordiversion of forest land was accorded by theconcerned State Government in anticipationof approval of the Central Government underthe Act and/or where work has been carriedout in forest area without proper authority.Such anticipatory action is neither proper norpermissible under the Act which clearlyprovides for prior approval of the CentralGovernment in all cases. Proposals seekingex-post-facto approval of the CentralGovernment under the Act are normally notentertained. The Central Government will notaccord approval under the Act unlessexceptional circu instances justifycondonation. However, penal compensatoryafforestation would be insisted upon by theMOEF on all such cases of condonation.

4.4 Projects Involving Forest as well as Non-forest lands Some projects involve use of forest land aswell as non-forest land. StateGovernments/project authorities sometimesstart work on non-forest lands in anticipation cay of the approval of the Central Governmentfor release of the forest lands required forthe projects. Though the provisions of theAct may not have technically been violatedby starting of work on non-forest lands,expenditure incurred on works on non-forestlands may prove to be infructuous ifdiversion of forest land involved is notapproved. It has, therefore, been decidedthat if a project involves forest as well asnon-forest land, work should not be startedon non-forest land till the approval of theCentral Government for release of forestland under the Act has been given."

Referring to Clause 4.2, it was submitted that therespondents had proceeded with the Project without waitingfor the second stage clearance in gross infraction of theterms of the Central Government and Clauses 4.3 and 4.4of the guidelines referred to above.

]7. It may be noted that the learned counsel for thepetitioner before opening her arguments submitted awritten argument which was taken on record. However,during the course of the hearing before us, her submissionswere restricted only to what have been set out above. It isalso of relevance to note that in paragraph 2.2(iv) of hisrejoinder to the counter affidavit of the respondents no.8and 9, the petitioner has specifically pleaded that ``the issueof environment clearance has not been challenged in thepresent petition which only argues for properimplementation of the terms and conditions laid down by 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 completejustice, we have deemed it appropriate also to consider allhis contentions including those set out in the writtenargument that were not placed before us. For t:he sake ofconvenience, the written arguments are reproduced belowin verbatim:- "WRITTEN ARGUMENT ON BEHALF OF ThE PETITIONER.

The humble submission of the above named petitioner MOSTRESPECTFU LLY SH EWETll : -

I. ISSUES

1.1. This case arises from the impugned Notification challenge onfollowing accounts. (Anx-6 to 9-8, pp-101-123)following accounts. (Anx-6 to 9-8, pp-101-123)

A. PRELIMINARY

8. Kancheniuhaa National Park (Protected Area).

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) 16/12/1998SPD company registered.

ii) 16/06/2010Ref No. 16(341) LD/2007/950 (Anx-P-VIII, PP- :VIII, PP- :

State has not yet issued enlistment toTUL Company as required underRegistration of Companies Act, Sikkim1961.TUL Company as required underRegistration of Companies Act, Sikkim1961.

D. Land Acquisition

E2ats

a) 19th oct, 2005(Anx-2, pp-95) : TUL companyletter t:o Secretary, E&P Deptt, Govt.of Sikkim for the requirement of forestand pvt. Land 161 hec for Teesta-Stage-III at Chungthang.letter t:o Secretary, E&P Deptt, Govt.of Sikkim for the requirement of forestand pvt. Land 161 hec for Teesta-Stage-III at Chungthang.

b) 14th Nov, 2005 (Anx-4 pp-98) Chief Engineer(T)P&Ewrote to D.C. to initiate jointinspection to acquire both Forest andprivate lands for TUL Company.wrote to D.C. to initiate jointinspection to acquire both Forest andprivate lands for TUL Company.

c) 8th of April, 2007(Anx-14, pp-130 w.p.) publicob].ection against landacquisition for the said ProjectStage-III HEP at Chungthang.ob].ection against landacquisition for the said ProjectStage-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.Ipp-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.Ipp-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.]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.]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.IA, pp-104-107 w.p.I

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]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 areasboth of forest and pvt lands 72.569 hec Mangan Sub-Division & 95.5296 ha at Chungthang sub-division andentire compensation shall be borne by TUL Company(Respondent No.9).acquisition of land by TUL Company as proposed areasboth of forest and pvt lands 72.569 hec Mangan Sub-Division & 95.5296 ha at Chungthang sub-division andentire compensation shall be borne by TUL Company(Respondent No.9).

ii) 31St May, 2008 : state entire cost of compensation paidby TUL [Anx-15, pp-131 -135 w.p.]by TUL [Anx-15, pp-131 -135 w.p.]

iii) 1st of July, 2008 [Anx-16, pp-136-137] states entireCompensation paid by TUL Company.Compensation paid by TUL Company.

iv) 3rd July, 2009 (Anx-17, pp-138-139] compensationpaid by TUL Company.paid by TUL Company.

v) 30th January, 2010 (Anx-18, pp-140 w.p.) compensationamount paid by TUL Company.amount paid by TUL Company.

11. SuBMISSION ON FACTS:

2.1. As reported by the State Respondent No. 3 in their owndocuments viz 2009 News letters [Anx-26,DD- .200 to204] that the State of Sikkim is tiny Himalayan State isecologically sensitive & fragile. Further states that richwetlands has been the attraction for several hydro powerProject and at the rate of diminishing water resources, indecades to come, Sikkim may no longer hold any of thesehydro Project at all.

The report further states that "change in the water flowsin rivers originating in the Himalayan region would adverselyaffect the ongoing hydel power station".

2.2. 30th August, 1956 "Droclamatioh" of the then Chogyalprotected under Article-371F (k) Of the Constitution thatthe North Sikkim in particular Chungthang, Lachen, Lachung& Dzongu are restricted areas due to strategically sensitiveas it is boarder areas shares it boundary with China andinhabited by the primitive tribes Lepcha and Bhutia tribesothers are restricted from entering to the above said areas.protected under Article-371F (k) Of the Constitution thatthe North Sikkim in particular Chungthang, Lachen, Lachung& Dzongu are restricted areas due to strategically sensitiveas it is boarder areas shares it boundary with China andinhabited by the primitive tribes Lepcha and Bhutia tribesothers are restricted from entering to the above said areas.

the North Sikkim in particular Chungthang, Lachen, Lachung 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 forpayment of compensation has to be paid wholly or partlyout of 'Public Revenue' or some fund controlled ormanaged by a local authority as held in the case of caseof Jhandu Lal \rs State Of Punjab, reported in AIR1961 SC 343. Viljibhai \rs State of Bombay reportedin AIR 1963 SC 1890, "entire compensation was paidout of the fund of the company; the acquisition would bebad in law." Public purpose could not have beendeclared under section-6,"PuBLIC PURPOSE", the costs of acquisition forpayment of compensation has to be paid wholly or partlyout of 'Public Revenue' or some fund controlled ormanaged by a local authority as held in the case of caseof Jhandu Lal \rs State Of Punjab, reported in AIR1961 SC 343. Viljibhai \rs State of Bombay reportedin AIR 1963 SC 1890, "entire compensation was paidout of the fund of the company; the acquisition would bebad in law." Public purpose could not have beendeclared under section-6,

(ii) Form "A" Appendix .1' Rule-3 (Aiix-3, pp-97)acquisition of land by TUL Company as proposed areasboth of forest and pvt lands 72.569 hec Mangan Sub-Division & 95.5296 ha at Chungthang sub-division andentire compensation shall be borne by TUL Company(Respondent No.9).acquisition of land by TUL Company as proposed areasboth of forest and pvt lands 72.569 hec Mangan Sub-Division & 95.5296 ha at Chungthang sub-division andentire 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 TULstates entire cost of compensation paid by TUL

iv) 1st of July, 2008 [Anx-16, pp-136-137] statesentire Compensation paid by TUL Company.entire Compensation paid by TUL Company.

(v) 3rd July, 2009 (Anx-17, PP-138-139]compensation paid by TUL Company.compensation paid by TUL Company.

(vi) 30th JanLlary, 2010 (Anx-18, pp-140 w.p.)compensation amountpaid by TUL Company.

(v) Rule-4 of company Rules, 1963 prohibit the StateGovernment from making declaration u/s-6 in the caseland is acquire for private company.Government from making declaration u/s-6 in the caseland is acquire for private company.

(vii) PUBLIC PURPOSE link with the Environment, right toprotest as phrase person interested mean all personsrightsprotest as phrase person interested mean all personsrights

(viii) The Counter Affidavit (pr. 4 and 5 pp. 14 -18) doesnot speak of any contribution other than 26% equity inthe Company. This is not a contribution to the Pro].ectfor which the lands both the pvt and forest are acquired.not speak of any contribution other than 26% equity inthe Company. This is not a contribution to the Pro].ectfor which the lands both the pvt and forest are acquired.

(ix) u/s-17( 1) &(4)onthepleaof" URGENCY"todeprivedthe fundamental statutory rights u/s-5-A to fileobjection. It is apparent that urgency clause is invokedto evade sec-5-Athe fundamental statutory rights u/s-5-A to fileobjection. It is apparent that urgency clause is invokedto 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 inorder to acquired illegally the forest land admeasuring64.147 ha for company TUL invoked in colourableexercise of power.and no justification to evade sec. 5 `A' it was done inorder to acquired illegally the forest land admeasuring64.147 ha for company TUL invoked in colourableexercise 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) bywhich inquiry u/s-5-A was waived off.This by itself negates the exercise of power u/s-17(4) bywhich 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 ofChunathana & ShiDaver of North Sikkim are not denied by theState Respondents and the Respondent Compenies.6.[Aiix-6-A, pp-104-107 w.p] acquired forest land ofChunathana & ShiDaver of North Sikkim are not denied by theState 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 theBlocks of Sinahik. Sentam, Kazor, & Salim Pakvel at NorthSikkim are also not denied both the State Respondents andthe Respondents companies.[Anx-7-A, pp-112-113 w.p.I acquired forest lands from theBlocks of Sinahik. Sentam, Kazor, & Salim Pakvel at NorthSikkim are also not denied both the State Respondents andthe Respondents companies.

[Kindly note: para-38, pp-31 of w.p. admitted bycompanies at their para-38, pp437 of their counter affidavitwith regards for forest lands of 64.147 ha acquired underL.A.Act, ].

Note: Forest lands of 64.147 ha acquired in violation ofsec-2 of FCA, 1980 without prior approval from MOEF of Gol

c) dt.3rd June, 2009-[Anx-20,pg-146 w.p.I clearly showsthat no approval was ever sought from the Ministry withregard to the 64.147 ha of the forest land of which have beenacquired vide thus this acquisition is completely illegal,that no approval was ever sought from the Ministry withregard to the 64.147 ha of the forest land of which have beenacquired vide thus this acquisition is completely illegal,

d) dt. 4th August, 2006 [Anx-19, pp-141 w.p.I clearlystates FOREST CLEARANCE is yet to be obtained.states FOREST CLEARANCE is yet to be obtained.

Kindly Note= -Statements showing the payment of compensation ofKhasmal 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 ofsame re].oinder.]

Kindly Note:-Khasmal /Khasland is a forest land u/s-2 (i) of TheSikkim Forests, Water Courses and Road Reserve ( Preservationand Protection) Act, 1988.

e) 2nd /11/2007 (Anx-30, pp-235 w.p.) 83.0405 of forestlands is in principal approval but not the final forestclearance.lands is in principal approval but not the final forestclearance.

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 fromMOEF.made application to Forest Department (Respondent No,3)for the permission of diversion of 83.0405 forest land fromMOEF.

ii) dt. 13-12-2006 Forest Deptt. submitted an application forproposal for the diversion of forest land of 83.0405 of forestland to non forest purpose u/s-2 FCA, 1980.proposal for the diversion of forest land of 83.0405 of forestland to non forest purpose u/s-2 FCA, 1980.

iii) 2nd Nov, 2007 is only the in principle approval from MOEF.(Respondent No.6).(Respondent No.6).

Hence in principal approval or clearance is not finalclearance and therefore pre-emptive that the final clearance will begiven is malafide action on the part of the State Respondents andthe 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 proposalsFirst proposal shall be agreed in principle and aftercompliance of the stipulated terms and conditions forcompensatory afforestation if any, transfer of funds, infavour of forest dept etc formal approval under the Act shallbe given issued.First proposal shall be agreed in principle and aftercompliance of the stipulated terms and conditions forcompensatory afforestation if any, transfer of funds, infavour of forest dept etc formal approval under the Act shallbe given issued.

11) 4.3. of the guidelines= Anticipatory action is neitherproper nor permissible under the said Act.proper nor permissible under the said Act.

Ill) 4.4. of the guidelines; Project involving Forest aswell as Non-forest lands work should not be started onnon-forest land till the approval central Govt.well as Non-forest lands work should not be started onnon-forest land till the approval central Govt.

®

2.5. Wildlife As far as the National Park is concerned, thefollowing should be noted;following should be noted;

(i) The Kanchenjunga National park was declared on 19 May2007 [see Writ Petition pp.197}.2007 [see Writ Petition pp.197}.

(ii) The periphery and biosphere reserved were declared on7 February 2007 [see Writ Petition pp.182]7 February 2007 [see Writ Petition pp.182]

(iii) It has been laid down that environmentally inimicalactivity should maintain a distance from the NationalPark.activity should maintain a distance from the NationalPark.

(iv) And that the Project areas fall within the Biospherereserved forest areas i/c buffer zone which is admitted bythe answering company respondent in para4 at pg 444of their counter affidavit.reserved forest areas i/c buffer zone which is admitted bythe answering company respondent in para4 at pg 444of their counter affidavit.

(v) 28th June, 2006 summary report of 44th meeting ofExpert Committee admitted the facts at Anx-R-17. Ditr£9Z of c.f. company "Project site is witliin the bulfferzone Of biosphere reserved" and further report"regarding the impact on wild life during theconstruction to be submitted".Expert Committee admitted the facts at Anx-R-17. Ditr£9Z of c.f. company "Project site is witliin the bulfferzone Of biosphere reserved" and further report"regarding the impact on wild life during theconstruction to be submitted".

(vi) dt. 2/06/2006 [Anx-20,pp-713 c.f. company] alsoreflects that "Project site is located near KNP so sufficientprotection measures in terms of strengthening theexisting man power" and further more states that "bothlachen & Lachung rivers are the main habitat of the manyfishes.„reflects that "Project site is located near KNP so sufficientprotection measures in terms of strengthening theexisting man power" and further more states that "bothlachen & Lachung rivers are the main habitat of the manyfishes.„

(vii) Also state in the same letter dt.2/06/2006 at pp-715 at point-3 "due to the submergence, the floraand fauna Of the area is likely to be depletedforever.715 at point-3 "due to the submergence, the floraand fauna Of the area is likely to be depletedforever.

(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 NBWLTUL 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 tocompany] MOEF suggest to obtain clearance from theSteering committee of National Board for Wildlife.company] MOEF suggest to obtain clearance from theSteering 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 ofBiodiversity and it has been exhibited that numbers ofmedical plant & Herbs are found in the forest lands whichis acquired for the Project. (Report on Hot spotdiversity are marl(ed and annexed as Anx-P-I, pp98711025 Of rejoinder to company).Biodiversity and it has been exhibited that numbers ofmedical plant & Herbs are found in the forest lands whichis acquired for the Project. (Report on Hot spotdiversity are marl(ed and annexed as Anx-P-I, pp98711025 Of rejoinder to company).

t7#..

b) As far as the biodiversity is concerned it is not denied thatbiodiversity is affected.

Kindly Note: The following exhibits have not beenchallenged 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 mentionedthat Sikkim may longer hold any of these Hydro-Project".

c) Due to mindless blasting and other activities without priorapproval or clearance viz, Forest clearance, Environmentclearance, wild life clearance etc.

Kindly note: Anx-28 colly, pp-213 -221 w.p.)Page-1021 Sikkim Express report (re].oinder toCompany) of death of endangered species Kindly Note; Anx-P-III, pp-1028 report ofDepartment of^Mines, Minerals & Geology, govt. ofSikkim reported damages caused by Stage-III HEPunder construction of TUL Company.

Local News paper report-[Anx-P-IV pp-1040]damage caused by Stage-Ill HEP at Chungthangunder TUL Company.

GAG report- Anx-P-V, pp-1062 clearly states theCompensatory Afforestation, CAT Plan, Wild lifepreservation need to implemented simultaneously.

dt. 21st of April, 2009 summary report of 25thmeeting of Expert Appraisal Committee (EAC) (Anx-P-VI pp-1152 Sociocultural impact on indigenoustribal community.

2.7. Spending of large amount of money cannot be a defense forviolation of all the mandatory statutory provisions, violation ofrights of poor farmers and environmental degradation. Thesecannot be compensated in terms of money. It is not only thepeople but also the environment, wildlife and biodiversity whichhave been adversely affected by the Project.violation of all the mandatory statutory provisions, violation ofrights of poor farmers and environmental degradation. Thesecannot be compensated in terms of money. It is not only thepeople but also the environment, wildlife and biodiversity whichhave been adversely affected by the Project.

SUBMISSION ON LAW=

I. On the Environment

1.1. The parameters under which environment decisions have to bemade are indicated in various decisions of the Hon'ble SupremeCourt.made are indicated in various decisions of the Hon'ble SupremeCourt.

i.) The precautionary principle an polluter pay principle with lexicalpriority to the former. -priority to the former. - t`

Vellore (1996) 5 SCC 647 at pr-10-20.Jagannathan (1997) 2 SCC 87 at pr.49

ii) The principle of non-toleration of infringement and creating apositive power coupled with a duty to implement environmentenhancing law and policy.positive power coupled with a duty to implement environmentenhancing law and policy.

Indian Enviro ( 1996) 5 SCC 231 pr.26

Jagannathan ( 1997) 2 SCC 87 at pr.52 p-148 (duty toimplement precautionary and polluter pay principle.)implement precautionary and polluter pay principle.)

iii) The principle of public trust in the environment.Kamal Nath (1997) 1 SCC 388 at pr. 22-38.Kamal Nath (1997) 1 SCC 388 at pr. 22-38.

iv) The principle of inter-generational equity.Ganesh Wood (1995) 6 SCC 363 at pr.36-42 esp. 42.A.P. Pollution Board (1999) 2 SCC 718 at pr.53Ganesh Wood (1995) 6 SCC 363 at pr.36-42 esp. 42.A.P. Pollution Board (1999) 2 SCC 718 at pr.53

v) The principle of primacy to protect bio-diversity.Godavarman (1997) 2 SCC 267 at pr.5 (2)Godavarman (1997) 2 SCC 267 at pr.5 (2)

vi) The priority of precautionary principle and burden of proof.A. P. Pollution Board (1999) 2 SCC 713 at pr.27-50.A. P. Pollution Board (1999) 2 SCC 713 at pr.27-50.

vii) The Principle necessitating the replacement of the assimilativecapacity approach by the precautionary principle.A.P. Pollution Board (1999) 2 SCC 713 at pr.33-5.capacity approach by the precautionary principle.A.P. Pollution Board (1999) 2 SCC 713 at pr.33-5.

viii) The power and duty of the court to refer matters to theappellate authority and experts in the face of technological andtechnical uncertainty.appellate authority and experts in the face of technological andtechnical uncertainty.A.P. Pollution Board (1999) 2 SCC 718 pr-55-7 & pr.27-3

ix) The importance of international conventions on the environmentand converting them to form part of every person's right to lifeand liberty.and converting them to form part of every person's right to lifeand liberty.

PuCL (1997) 3 SCC 433Visaka (1997) 6 SCC 241 read with Vellore (1996) 5SCC 647 at pr.10-20 and Article 253 of the Constitution

x) The principle of sustainable development which was to be readwith the precaiitionary principle and all other principles whichgave lexical priority to protecting the environment and bio-diversity.with the precaiitionary principle and all other principles whichgave lexical priority to protecting the environment and bio-diversity.

ro

cV

xi) The principle that large Projects must be sub].ect to strictcompliance of the terms of environmental effect, an effectiverehabilitation policy and post monitoring mechanism. It followsthat non-compliance Pro].ect may have to be stopped either fullyor interlocutorially until compliance.

Narmada Bachao Andolan (2000) 10 SCC 664.

Such a duty flows from both the Constitution and sec-3 o theEPA, 1986

For examples of effective action by this Court.

See KamalNath(1997) 1SCC388.Jaganathan (1997) 2 SCC 87,TN Godavarman ( 1997) 2 SCC 267India Envrio ( 1996) 5 SCC 231.

In these cases effective action was taken irrespective of theenormity of the effects of the decision.

xii) Any powerunderthe EPAorin respectofenvironmentisapower coupled with a duty.power coupled with a duty.

a) on power cdmplied with a duty: See commissionerofBombay v Gordhandas (1952) SCR 135 at 147(quoting Julius v Bishop of Oxford).Bombay v Gordhandas (1952) SCR 135 at 147(quoting Julius v Bishop of Oxford).

b) On powers coupled with a duty necessitated by theConstitution see Comptroller & Auditor General v K.S.Jaganathan (1986) 2 SCC 679 at pr. 21.Constitution see Comptroller & Auditor General v K.S.Jaganathan (1986) 2 SCC 679 at pr. 21.

xiii) It issubmitted that :-

The pari passu requirements are mandatory. Where conditionsare mandatory, they are compulsory. Even otherwise substantialcompliance is required.

State of UP v Manbodhan Lal Srivastava (1958) SCR 533at 545.

Babu Ram Upadhaya (1961)2 SCR 679 at 709

xiv) It has not become the practice of the Government to permitconstruction without compliance in virtually all Projects. As suchthe continuation of the dam is both unreasonable in the narrowsense of wednesbury reasonabless as well as under article -21of the constitution.construction without compliance in virtually all Projects. As suchthe continuation of the dam is both unreasonable in the narrowsense of wednesbury reasonabless as well as under article -21of the constitution.

1I. F.C.Act, 1980

2.1. As far as forest areas are concerned, we must proceed on thebasis that the meaning of `forest' has to be understood in theordinary sense [see I.rv. Godavarrr}an (1997) 2 SCC 267]irrespective of whether the forest is shown as such in the forestor revenue records.basis that the meaning of `forest' has to be understood in theordinary sense [see I.rv. Godavarrr}an (1997) 2 SCC 267]irrespective of whether the forest is shown as such in the forestor revenue records.

Thus the scheme of the Act and the Rules make clear thatthe Central Government's prior approval is mandatory. /V/.shnuKumar Khattar v. State of Bihar, A\1F` 1995 Pat 168)

2.2. In-principle approval is distinct from prior approval: i/.feInsurance Corporation of India v. Escorts Ltd (1986) i SCC 264 atpr.63Insurance Corporation of India v. Escorts Ltd (1986) i SCC 264 atpr.63

2.3 Prior Approval for Use of Forest land must precede anyother statutory approval to a Project.other statutory approval to a Project.

2.4. Only Prior Approval can make a Forest LandTransferable /Available for a `non forest' activity:Forest land can be diverted for non forest use only onceformal S.2 FCA approval is granted by the CentralGovernment.Transferable /Available for a `non forest' activity:Forest land can be diverted for non forest use only onceformal S.2 FCA approval is granted by the CentralGovernment.

2.5. (X) Penal Provisions:

(a) The punishment for contravention of the provisionsof sec.2 FCA is simple imprisonment which mayextend to a period of fifteen days [s,3A of theFCA].of sec.2 FCA is simple imprisonment which mayextend to a period of fifteen days [s,3A of theFCA].

(b) Sec.3B of the FCA provides punishment even forgovernment authorities for offences under FCA.government authorities for offences under FCA.

2.6 It should be noted that Sikkjm is prime environmentally virginarea. In this context it is necessary to draw pointed attentionto the Forest Department's own newsletter of 2009 which hasbeen reproduced in the Writ Petition [Annexure 26, pp.200-204; see also Annexure 27, pp.205-212].area. In this context it is necessary to draw pointed attentionto the Forest Department's own newsletter of 2009 which hasbeen reproduced in the Writ Petition [Annexure 26, pp.200-204; see also Annexure 27, pp.205-212].

Ill. Wild Life Protection Act, 1972.

3.1. Most significantly, section 35 read as a whole isdistinguished from a sanctuary in that no human activitycan take place in a national park [note especially section35(3)I. Sec-35 (3) absolutely prohibits of any activities inNational Park and its periphery viz buffer zone andbiosphere reserved.distinguished from a sanctuary in that no human activitycan take place in a national park [note especially section35(3)I. Sec-35 (3) absolutely prohibits of any activities inNational Park and its periphery viz buffer zone andbiosphere reserved.

K.N. Chinnappa -AIR 2003 SC 724, Pr.

In the instant case justice Pasayat rightly observedthat .'by destroying nature, environment, man iscommitting matricide, having in a way killed Mother Earth.Technological excellence, growth of industries, economicalgains has laid to depletion of natural resources irreversibly.Indifference to the great consequences, lacks of concernand foresight have contributed in large measures to thealarming position. In the case at hand, the alleged victim isthe flora & fauna in an around .... "

3.2. L.A.Act.1894

a) Public purpose has to be in dispensable irrespective ofsee-5A being important.see-5A being important.

b) If clearance on various statutory laws are not obtainedthe land acquisition is not for public purpose.the land acquisition is not for public purpose.

c) That it js impermissible to apply the emengencyprovisions u/s- 17 (1) and to waive enquiry u/s-5A ofthe Act for construction of Project. Section 17(4), beingan exception to the normal mode of acquisition, mereurgenay or emengeney is not sufficient for acquisitionu/s-17(4). Section 5A confers a positive right. Itcannot be taken away deeming it to be an emptyformality. No relevant or valid consideration enteredthe minds of the authorities while proposing orapproving the application u/s-17(4) of the Act. Theapplicability of sections 17 (1) & (4) is also bad onaccount of the malafide intention.provisions u/s- 17 (1) and to waive enquiry u/s-5A ofthe Act for construction of Project. Section 17(4), beingan exception to the normal mode of acquisition, mereurgenay or emengeney is not sufficient for acquisitionu/s-17(4). Section 5A confers a positive right. Itcannot be taken away deeming it to be an emptyformality. No relevant or valid consideration enteredthe minds of the authorities while proposing orapproving the application u/s-17(4) of the Act. Theapplicability of sections 17 (1) & (4) is also bad onaccount of the malafide intention.

d) Section 5A is an important provision which cannot beeasily dispensed with [on the importance of section 5Asee Hindustan Petroleum v. Darius Shapur Chenai (2005) 7SCC 627 at pr.9., Union of India v. Mukesh Hans (2004) 8SCC 14 at prs.35, 36., Union of India v, Krishnan Lal Arneja(2004) 8 SCC 453. State of Punjab v Gurdial Singh AIR1980 SC 319 at prs: 323. This purported reason hasbeen held by the Hon'ble Supreme Court to beimpermissible. The following judgment is relied upon asOm Prakash Pr & Another v State of UP & Others(1998) 6 SCC 1 ( sec-6 notification issued 8 monthsafter sec-4 notification and notice-u/s-9 called aftermore than 1 year) held to be illegal.easily dispensed with [on the importance of section 5Asee Hindustan Petroleum v. Darius Shapur Chenai (2005) 7SCC 627 at pr.9., Union of India v. Mukesh Hans (2004) 8SCC 14 at prs.35, 36., Union of India v, Krishnan Lal Arneja(2004) 8 SCC 453. State of Punjab v Gurdial Singh AIR1980 SC 319 at prs: 323. This purported reason hasbeen held by the Hon'ble Supreme Court to beimpermissible. The following judgment is relied upon asOm Prakash Pr & Another v State of UP & Others(1998) 6 SCC 1 ( sec-6 notification issued 8 monthsafter sec-4 notification and notice-u/s-9 called aftermore than 1 year) held to be illegal.

SCC 14 at prs.35, 36., Union of India v, Krishnan Lal Arneja

e) An acquisition purely for company does not constitute avalid public purpose. To do so is a fraud on the Act is acolourable exercise of power. Some contribution isrequired.valid public purpose. To do so is a fraud on the Act is acolourable exercise of power. Some contribution isrequired.

f) The respondent's understanding of the Pradrbha Mma'scase [(2003) 10 SCC 626] is incorrect (see counterpr.5, at pp.16).case [(2003) 10 SCC 626] is incorrect (see counterpr.5, at pp.16).

LOcus

3.3 The most significant point to note in regard to Public InterestLitigation is that it discards the traditional concept of Locusstandi which means that only the person whose legal rights arebeing violated can approach the Hon'ble Court for redress.Further the Hon'ble Court has enunciated the need to relax thelocus standi rule in the following words in the cases referredbelow : -Litigation is that it discards the traditional concept of Locusstandi which means that only the person whose legal rights arebeing violated can approach the Hon'ble Court for redress.Further the Hon'ble Court has enunciated the need to relax thelocus standi rule in the following words in the cases referredbelow : -

(i) Indian council for Enviro-Legal, Action v uol,(1996) 5 SCC 281 (pr.41).(1996) 5 SCC 281 (pr.41).

(ii) In Labourersworking on salal Hydro projectvState of Jammu & Kashmir, AIR 1984 SC 177.State of Jammu & Kashmir, AIR 1984 SC 177.

(iii) Sanjit Roy v state of Ra].asthan, AIR 1983 SC 328

(iv) Bandhua Mukti Morcha v Uol, AIR 1984 SC 802(v) S.P.Guptavuol,AIR1984SC811.(v) S.P.Guptavuol,AIR1984SC811.

(vi) Janata Dal v H.S. ChowdharyAIR 1993 SC 892.

(vii) Lakshmi Kant pandeyv uol, AIR 1985 SC 652.

(viii) R.L. &E. Kendra, Dehradum v state ofu.P.AIR, 1985 SC 652.AIR, 1985 SC 652.

(ix) Chaitanya Kumar v state of Karnataka, AIR 1986SC 825'SC 825'

(x) Vishwanath chaturvedi v uol ( 2007) 4 SCC 380

(xi) Indian Banks Association v Devkala consultancyservice (2004) 11 SCC 1.service (2004) 11 SCC 1.

(xii) Commoncausevuol (2008) 5SCC511

(xiii) Shivajirao Nilangekar patil v Mashesh MadhavGosavi, (1987) 1 SCC 227. (pr.36).Gosavi, (1987) 1 SCC 227. (pr.36).

(xiv) Ashok Lanka v Rishi Dixit ( 2005) 5 SCC 598

(xv) Guruvayoor Devaswom managing committee vC.K. Rajan (2003) 7 SCC 546. (pr. 50)C.K. Rajan (2003) 7 SCC 546. (pr. 50)

3.4 Therefore, the whole proceeding initiated by the Respondents No. 1to 9 without application of mind under in violation of LandAcquisitions Act, 1894, of Forest (Conservation) Act, 1980 &Environment Protection of Act, 1986 Biological Diversity Act, 2002,Wild Life Protection Act, 1972 and Constitution of India, werefundamentally bad and challenge impugned notifications uponwhich the proceedings started was invalid and void liable to bequashed as prayed in the writ petition by the petitioner.to 9 without application of mind under in violation of LandAcquisitions Act, 1894, of Forest (Conservation) Act, 1980 &Environment Protection of Act, 1986 Biological Diversity Act, 2002,Wild Life Protection Act, 1972 and Constitution of India, werefundamentally bad and challenge impugned notifications uponwhich the proceedings started was invalid and void liable to bequashed as prayed in the writ petition by the petitioner.

Acquisitions Act, 1894, of Forest (Conservation) Act, 1980 &

Submitted written argument through the counsel on behalf of thepetitioner."petitioner."

In the above premises, it was submitted that the writpetition be allowed.

a

]8. Mr. A. Mariarputham, learned Senior Advocateand Advocate General, appearing on behalf of the State-respondents at the outset preferred to press the preliminaryobjections as to the maintainability of the writ petitionwhich we may set out as under:-

(i) The petitioner who claims to file the present writpetition as a PIL ought to come with clean hands ifindeed the remedies that are being sought for are inpublic interest. In the present case, he is not, havingheld back the Order dated 05-07-2007 passed by theNEAA in Appeal no.8/2006 filed by the ACT through itsGeneral Secretary, Shri Dawa Lepcha of Lingdongvillage, Dzongu, North Sjkkim, assailing theEnvironmental Clearance granted by the MOEF dated04-08-2006. In that appeal, the very issue raised inthe present proceeding with regard to the violation ofthe Environment (Protection) Act, 1986, and theForest (Conservation) Act, 1980, had been raised andthe NEAA on examination of the affidavit, counter-affidavits and re].oinder to the counter-affidavit filedby the parties, arrived at its conclusion that allnecessary safeguards and requirements prescribedunder the law had been duly taken care of in the EMP

so as to conserve and protect the local environment ofthe area and, therefore, the sufficient steps to protectand conserve the environment of the Pro].ect area hadbeen taken.

(ii) The petitioner is a member of the ACT and is,therefore, was privy to the above facts and yet he haschosen not to disclose them in the present petition.Although, in paragraphs 2.1(iv) and 2.4(iv) of therejoinder to the counter-affidavit of the State-respondents and in paragraph 2.2(vi) of the rejoinderto the counter-affidavit of the respondents no.8 and 9,the petitioner has stated that the petitioner in thepresent petition is Shri Athup Lepcha of Passingdangvillage, Dzongu, North Sikkim, while the appeal beforeNEAA, New Delhi, the appellant was one "Shri DawaLepcha" of Lingdong village, Dzongu, North Sikkimwho are two different persons, it can be seen from therepresentation dated 29-06-2009 and representationdated 14-07-2009, constituting parts of Annexure 13collectively, addressed to the respondent no.1, ChiefSecretary, Government of Sikkim, with regard to thematter in //.s in the present proceeding, it gets starklyrevealed from the signatures appearing in those applications that the petitioner, Shri Athup Lepcha, isthe President of the ACT and Shri Dawa Lepcha(appellant before NEAA) is its General Secretary.Therefore, there can be no manner of doubt that thepresent petition has been filed by the same group,namely, ACT. The petitioner, however, has chosen tosuppress this fact and further has misrepresentedfacts in the various pleadings indicated herein.

(iii) The averments on behalf of the respondents no.8 and9 in their counter affidavit that the petitioner is an Ex-MIA hailing from the Pro].ect area who seeks to attainpolitical motive by instituting this writ petition underthe garb of PIL have not been denied and, therefore,in law it is to be presumed that the petitioner being anEx-MLA from the Pro].ect area is trying to attainpolitical mileage in instituting the writ petition in garbof a PIL.9 in their counter affidavit that the petitioner is an Ex-MIA hailing from the Pro].ect area who seeks to attainpolitical motive by instituting this writ petition underthe garb of PIL have not been denied and, therefore,in law it is to be presumed that the petitioner being anEx-MLA from the Pro].ect area is trying to attainpolitical mileage in instituting the writ petition in garbof a PIL.

(iv) The Order of the NEAA dismissing the appeal wasneither challenged earlier nor is it a subject ofchallenge in the present writ petition also. Under suchcircumstances, the Order of the NEAA assumesfinality-neither challenged earlier nor is it a subject ofchallenge in the present writ petition also. Under suchcircumstances, the Order of the NEAA assumesfinality- Cly

(v) As appears from paragraph 2.2(vi) of the rejoinder tothe counter-affidavit filed by the respondents no,8 and9 it has been stated in categorical terms that in thewrit petition the petitioner has not challenged theEnvironmental clearance but only seeks for ``properimplementation of the terms & conditions laid down bythe MOEF in Environmental Clearance Report dated04-08-2006," i.e., Annexure 19 to the writ petition.This as per the learned Advocate General reduces thescope of the writ petition to limit only to the questionas to whether the conditions stipulated in theEnvironmental Clearance of the MOEF dated 04-08-2006 have been complied with or not and the forumfor redressal of such grievance would be elsewhere,but not before this Court and that the other questionsraised in the writ petition would no longer survive forconsideration.

(vi) On the merits of the case, the learned AdvocateGeneral submitted that the basis upon which the landacquisition proceedings have been challenged cannotbe sustained in law and in facts. The plea of thepetitioner that the acquisition of land being for and onbehalf of TUL, a private company funded by that company would be violative of and impermissibleunder Part VII of the IA Act is grossly misconstrued.It is submitted that firstly the company is not aprivate company being in the joint sector with theState Government with the latter having 26% equityshare in it as would be evident from clause 4.9.1 ofthe Agreement dated 18-07-2005 entered intobetween the Government of Sikkim and TUL.

(vii) Secondly, the preamble to the notice under Section4(1) of the LA Act dated 30-03-2007 (Annexure 6)clearly reveals that the land was being acquired by theSPDC in the areas stated therein for public purpose atpublic expense and, therefore, it cannot be said thatthe land was acquired for a private company. As perthe learned Advocate General, the land so acquiredhas been let out on lease to the TUL on a premiumand on payment of annual lease with specified termsand conditions and does not involve transfer of itsownership which would remain with the SPDC.Alternatively, it has been argued under the Agreementdated 18-07-2005 the State Government is obliged toprovide land on lease in association with the SPDC atthe expense of the company in accordance with the

provisions of LA Act that may be required by thecompany for the Project. Reference was made in thisbehalf to clauses 3.3(a) and 3.4 of the Agreement. Itis in keeping with such obligation that the land wasacquired by the SPDC and by application of Section 43LA Act, Part VII thereof containing Sections 39 to 42would not be applicable even assuming that TUL is aprivate company. It was emphasised that theownership of the land remained with the StateGovernment and that the Project being on the basis ofBuild, Own, Operate and Transfer (in short ``BOOT''),the lease hold land would be reverted back to theState Government after 35 years. Reference in thisregard was made to clauses 2.2.1 and 2.2.3 of theAgreement dated 18-07-2005.

(viii) The embargo on the acquisition of land urged onbehalf of the petitioner would apply to a situationwhere the acquisition is for a company. In support ofhis contention the Learned Advocate General referredto the recent decision of the Hon'ble Apex Court inNand Kishore Gupta alnd Ors. vs. State of u.P.and Ors. .. MANu/SC/0681/2010.

(ix) It was submitted that the land acquisition proceedingsbeing complete with the compensations fully paid tothe land owners, possession thereof taken over by theSPDC and leased out to TUL, and the TUL in turnhaving commenced with the Project has now reachedat an advanced stage, the challenge to the acquisitionwas inordinately delayed. Moreover, none of the landowners have come forward to challenge theacquisition who rather had agreed to the acquisitionand accepted the payment of compensation. Thepetitioner is not one of land owners and, therefore,has no /ocus stand/. to prefer the present writ petition.As per the learned Advocate General, the acquisitionhas been made for a public purpose, i.e., generationof Hydroelectric Power, which is so crucial for theeconomic development of the State and the Nation,The entire land acquisition proceedings and thePro].ect works are being carried out in accordance withlaw ensuring minimum impact on the environment bystrictly complying with conditions prescribed by theMOEF having due regard to the sensitivity of thepeople and the State.

(x) With regard to laws that either ban or restrict entry ofnon-indigenous people into the North District ofSikkim, the learned Advocate General submitted thatthe Proclamation dated 30-08-1956 (Annexure 11)and notification no.3069/OS dated 24-03-1958(Annexure 12) prohibits only such entries that arewithout a permit issued by the Government, which isnot the case here. Notification no.665/PS dated 27-09-1954 (Annexure 13) only bans the entry oftraders/agents into Dzongu area from outside. Sincethe activities of TUL is not that of traders/agents butdevelopment of the power Pro].ect and, that it is ajoint sector company with the State Government,those notifications would be inapplicable.

(xi) While dealing with the plea that the Forest Landinvolved in the acquisition was not permissible underthe Forest (Conservation) Act, 1980, it was submittedthat while it is true that the State on its own cannotpermit use of Forest Land for non-forest purposes, itcould do so with the prior approval of the CentralGovernment under Section 2(2) of the Forest(Conservation) Act, 1980, In the present case,necessary approval of the Central Government hadinvolved in the acquisition was not permissible underthe Forest (Conservation) Act, 1980, it was submittedthat while it is true that the State on its own cannotpermit use of Forest Land for non-forest purposes, itcould do so with the prior approval of the CentralGovernment under Section 2(2) of the Forest(Conservation) Act, 1980, In the present case,necessary approval of the Central Government had been obtained prior to the State Governmentproceeding to assign them on lease to the TUL. It wasfurther submitted that the Forest Land in question wasnot acquired but was dereserved for non-forestpurposes. Forest Land being a property of theGovernment, the question of acquiring it did not andcould not arise, the plea was, therefore, grosslymisconstrued and liable to be re].ected.

(xii) The learned Advocate General drew our attention toletter dated 02-11-2007 issued by the MOEF to thePrincipal Secretary (Forests), respondent no.3(annexure R3) which is Annexure 30 to the writpetition, by which diversion of 83.0405 hectares ofForest Land was approved under Section 2 of theForest (Conservation) Act, 1980, under certain termsand conditions. It was submitted that the grant of thesaid Clearance was preceded by the followingsequence of events:- (a) During the proceedings wp(C) no.202 of 1995 inthe matter of T. N. GodavarmanThirumulkpad vs. union of India & Ors.before the Hon'ble Supreme Court, the CentralEmpowered Committee, a body constitutedthe matter of T. N. GodavarmanThirumulkpad vs. union of India & Ors.before the Hon'ble Supreme Court, the CentralEmpowered Committee, a body constituted Cy under its Orders, submitted its second reportwith regard to the proposals submitted by theMOEF in respect of a number of Pro].ects, serialno.6 of which pertains to the Pro].ect in thepresent case. The Central EmpoweredCommittee in its report recommended forclearance of all those Projects by the MOEF. Thelearned Advocate General referred to thefollowing portions of the recommendation of theCentral Empowered Committee (Annexure R9):- "CENTRAL EMPOWERED COMMITTEE

REPORT (SECOND) IN IA NO.1413, 1414, 1426 ANDOTHER RELATED IA§ REGARDING THE CONSTITUTIONAND COMPOSITION OF THE FOREST ADVISORYCOMMITTEE (FAC) -PROPOSALS EXAMINED BY THE FAC

In the CEC's first report dated 16.8.2007 it hasbeen recommended that 12 proposals pertaining togrant/renewal of coal mining leases in favour of PublicSector Undertakings, 4 proposals pertaining toregularization of encroachment in Orissa, two proposalspertaining to renewal of mining leases in favour of OrissaMining Corporation, one proposal pertaining to HydroElectric Pro].ect of NTPC in Chamoli District in Uttrakhandand one proposal pertaining to Tista Dam (Stage IV) ofthe NHPC in Darjeeling (West Bengal) may be permittedto be approved by the MOEF as per the recommendationsmade by the FAC. The details of these proposals aregiven below:

This Hon'ble Court may please consider the aboverecommendations and may please pass appropriateorders in the matter."

(b) That the recommendations were considered bythe Hon'ble Supreme Court on 28-09-2007passed, /.nter a/;.a, the following Order (AnnexureR10):- \\

I.A,1717-18 and I.A.No.2067 AND

I.A. Nos. 1413, 1414, 1426 and otherrelated IAs regarding the constitution andcomposition of the Forest AdvisoryCommittee /FAC`.

I.A. No.2067 is taken on board.

These applications involve 55 projectsssponsored by the various government agencies.Some of them are power projects and some relatesto other activities. The CEC has examined thematters and has given approval to all theseprojects. MOEF may examine if there are anyviolations and thereafter pass appropriate ordersregarding clearance at the earliest.

q,.:..?

(c) Following the above directions of the Hon'bleSupreme Court, the Clearance dated 02-11-2007(Annexure 30) was issued by the MOEF.Supreme Court, the Clearance dated 02-11-2007(Annexure 30) was issued by the MOEF.

(xiii) It was submitted most emphatically that the land hadbeen utilised only after obtaining the Clearancesrequired under the law. The Environmental Clearancedated 04-08-2006 (Annexure R2) accorded by theMOEF was based upon the EMP submitted by TULwhich was the very letter under challenge in theappeal before the NEAA. It will be evident fromparagraph 6.1 and sub-paragraphs and paragraphs6.3 and 8 of the Order dated 05-08-2007 that all theobjections which form the foundational grievance ofthe petitioner in the present writ petition were dulyconsidered by the NEAA while disposing of the appeal.been utilised only after obtaining the Clearancesrequired under the law. The Environmental Clearancedated 04-08-2006 (Annexure R2) accorded by theMOEF was based upon the EMP submitted by TULwhich was the very letter under challenge in theappeal before the NEAA. It will be evident fromparagraph 6.1 and sub-paragraphs and paragraphs6.3 and 8 of the Order dated 05-08-2007 that all theobjections which form the foundational grievance ofthe petitioner in the present writ petition were dulyconsidered by the NEAA while disposing of the appeal.

Conclusion

(xiv) The learned Advocate General submitted that as thepetitioner had not come with the clean hands havingsuppressed material facts, lacked necessary /ocusstand;. and even on the merits having found to beclearly misconstrued both on facts as well as the law,the writ petition deserved to be dismissed.petitioner had not come with the clean hands havingsuppressed material facts, lacked necessary /ocusstand;. and even on the merits having found to beclearly misconstrued both on facts as well as the law,the writ petition deserved to be dismissed.

]9. Mr. Jayanta Mitra, learned senior counsel,appearing on behalf of the respondents no.8 and 9, whilesupporting the submissions made on behalf of State-respondents preferred only to re-emphasises some of thepoints which in his view were vital for disposal of the writpetition. They were as follows:-

(i) That notice under Section 4(1), declaration underSection 6 of the LA Act and the entire proceedingsthereunder having culminated in the possession of theland being taken over by the SPDC and leased out tothe respondent no.9, there was nothing that was leftto assail the action. It was submitted that there wasan inordinate delay on the part of the petitioner toraise those issues and in land acquisition cases suchdelay was fatal. There should not be any reopeningof a land acquisition matter even in cases of voidableacquisition proceedings.

(ii) That respondent no.9 had incurred an expenditure ofabout Rs.3083 crores out of the envisaged cost ofRs.5705.055 crores. Our attention was drawn toAnnexure I to Annexure R6 filed on behalf of therespondent no.9 which is statement of expenditureincurred on various heads by the respondent no.9.about Rs.3083 crores out of the envisaged cost ofRs.5705.055 crores. Our attention was drawn toAnnexure I to Annexure R6 filed on behalf of therespondent no.9 which is statement of expenditureincurred on various heads by the respondent no.9.

Having thus invested such huge sums of money thecircumstance had become irretrievable and that therespondent no.9 was now at a disadvantageousposition.

(iii) Next, Mr. Mitra reiterated the submission made onbehalf of the State that the petitioner does notdeserve any consideration as he has not approachedthe Court honestly having withheld the fact that theissues raised in the present writ petition have sincebeen decided by the NEAA in an appeal filed by theACT of which the petitioner is the President. Thepetitioner having not come with clean hands,particularly in a PIL, the writ petition deserved to bedismissed on this ground alone.behalf of the State that the petitioner does notdeserve any consideration as he has not approachedthe Court honestly having withheld the fact that theissues raised in the present writ petition have sincebeen decided by the NEAA in an appeal filed by theACT of which the petitioner is the President. Thepetitioner having not come with clean hands,particularly in a PIL, the writ petition deserved to bedismissed on this ground alone.

(iv) It has further been submitted that the proposal forEnvironmental clearance was duly appraised by theExpert Appraisal Committee (in short ``EAC'') of theRiver Valley and Hydroelectric Projects andrecommended for according Environmental Clearancebased on the report of State Chief Wildlife Wardenregarding impact on wild life construction work andthe MOEF letter dated 04-08-2006. While granting theForest clearance the proximity of KhanchendzongaEnvironmental clearance was duly appraised by theExpert Appraisal Committee (in short ``EAC'') of theRiver Valley and Hydroelectric Projects andrecommended for according Environmental Clearancebased on the report of State Chief Wildlife Wardenregarding impact on wild life construction work andthe MOEF letter dated 04-08-2006. While granting theForest clearance the proximity of Khanchendzonga National Park was also duly considered by the ForestAdvisory Committee. Recommendation for suchclearance was made on the finding that none of theProject components fall in the Core Zone ofKhanchendzonga Biosphere Reserve, i.e.,Khanchendzonga National Park (although a smallfraction of underground Head Race Tunnel (HRT)passed through the outer ridge of the Buffer Zone ofthe Khanchendzonga Biosphere Reserve). It wassubmitted that based on the above recommendationsand on its examination in detail by the CentralEmpowered Committee, the Hon'ble Supreme Courtwas pleased to clear the proposal in pursuance ofwhich MOEF granted the Forest Clearance vide letterdated 02-11-2007, as discussed above, and theProject construction works commenced onlythereafter. It is further the submission of Mr. Mitrathat the Pro].ect work is being closely monitored by theMDMC requiring Six Monthly Progress Report as to thecompliance of the prescribed terms and conditions ofthe clearances. It was further submitted that theMDMC consisting of Members who are experts in theirown field, in their report dated 09-03-2010, expressedtheir satisfaction of the various activities being q..., implemented under EMP dated 08/09-03-2010(Annexure R15). Such being the case the allegationsof non-compliance of the conditions of the Clearancesas alleged by the petitioner are clearly belied.

(v) Notice under Section 4(1) dated 24-12-2008(Annexure 9) upon which the petitioner relies wouldnot be of any help to him as it pertains to only 3.8170hectares and not the entire area. Even out of the3.8170 hectares, possession over 1.3190 hectares hasalready been taken by the respondents and theprocess for the balance 2.4980 hectares is due to becompleted shortly.

(vi) Since petitioner in his rejoinder has clearly narroweddown the scope of the writ petition from questioningthe merits of the Environmental Clearances only to theimplementation of the terms and conditions stipulatedin the Clearances, it was only to be seen as towhether those were being strictly observed, the restbeing rendered redundant. Referring to the case ofIndian Council for Enviro-Legal Action vs` unionof India & Ors. .. (1996) 5 SCC 281 it wassubmitted that the primary effort of the Court whiledealing with the environmental related issues, is to

see that the environment agencies, whether it be theState or any other authority, take effective steps forenvironmental laws. In the present case, as has beenclearly illustrated and confirmed by the MDMC, everyaspect of the conditions of the EMP are being compliedwith and in the event of any non-compliance beingfound, the respondent no.9 would certainly ensure itscompliance.

It was, therefore, submitted that writ petitiondeserved to be dismissed both on the question ofbona fr.des and in its merits.

20. Mr. Karma Thinlay Namgyal, learned CentralGovernment Counsel, appearing on behalf of therespondent no.6, MOEF, made the following submissions:-

(i) That the writ petition ought to be dismissed thepetitioner having not disclosed of the appeal filed bythe ACT of which the petitioner is the President, onthe very issues that are in /t.s in the present writpetition and of the fact that the said appeal had beendismissed, upholding the Environmental Clearancedated 04-08-2006 vide the Order of the NEAA dated05-07-2007.

(ii) On the merits of the case pertaining to the mattersrelevant to respondent no.6, it was submitted thatnecessary Environment Clearance and ForestClearance under the Environment (Protection) Act,1986 and the Forest (Conservation) Act, 1980, inrespect of the Pro].ect in question had been accordedby letters dated 04-08-2006 and 02-11-2007 beingAnnexure R2 and R3 respectively. It was submittedthat prior approval of the use of 83.0405 hectares ofForest Land for non-forest purposes was accordedafter following the laid down procedure. It wassubmitted that the Forest Land involved in the Projectmeasures 83.0405 hectares (68.3130 hectares surfaceforest area and 14.72775 hectares underground forestarea) and private land measuring about 112.84444hectares (106.336 hectares surface land and 6.5108hectares for underground structure). It was furthersubmitted that respondents no.8 or 9 has not acquiredany Forest Land but has only got the permission todivert 83.0405 hectares Forest Land (Khasmal) in theNorth District of Sikkim for the Pro].ect in terms of theproposal received from the Secretary, Forest,respondent no.3.

C)

C)

(iii) The controversy of the sentence ``out of which 80.288ha, is a forest land, Forest Clearance is yet to beobtained" appearing in paragraph 3 of the letterAnnexure 19 of the MOEF granting EnvironmentalClearance has been clarified by Mr. Karma Thinlay, Asper him the Forest (Conservation) Act, 1980, providefor conversation of forest and for matters connectedtherewith or ancillary or incidental thereto while theEnvironment (Protection) Act, 1986, provides forprotection and improvement of environment. Thatthere is a procedural difference in processingclearances under the two statutes, i.e., ForestClearance under the Forest (Conservation) Act, 1980,and Environmental Clearance under the Environment(Protection)Act,1986. The two are to beconsidered distinctly although they fall under thejurisdiction of the respondent no.6 and requireseparate clearances. It has, therefore, beensubmitted that the sentence does not indicate that noForest Clearance has been obtained by therespondents. It was clarified that the mandatoryenvironment and Forest Clearances under the relatedlaws for the Pro].ect were accorded by letters dated 04-08-2006 and 02-11-2007 respectively. It wasfurther submitted that as per the proposal received bythe respondent no.6 none of the Project componentsfall in the Core Zone of Khanchendzonga BiosphereReserve which includes within it the KhanchendzongaNational Park, except for a small part of itsunderground HRT passing through the outer ridge ofthe Buffer Zone of Khanchendzonga BiosphereReserve at a distance of 1 kin. from theKhanchendzonga National Park. That no part of theKhanchendzonga National Park or the Core Zone ofKhanchendzonga Biosphere Reserve has beenreported to have been diverted. The learned CentralGovernment Counsel submits that all requirementsand conditions under the clearances and the EMP arebeing complied with by the respondent no.6. This facthas been confirmed by the MDMC in its report alreadyreferred to above. The MOEF has been intermittentlymonitoring the Project to ensure and to assesscompliance of the conditions of the clearancesaccorded by it. In the above circumstances, it wassubmitted that there being no case made out in thewrit petition, it deserved to be dismissed.

2]. Upon hearing the parties, we find that theprinciple issues emerging there from that require to beaddressed are - ffJ whether the petitioner has been guilty of suppressionof material facts and if so, whether the petitioner isentitled to the reliefs sought for in the writ petition;of material facts and if so, whether the petitioner isentitled to the reliefs sought for in the writ petition; f;/-J whether land acquisition proceedings have been heldin accordance with the law and whether the petitioneris guilty of delay and laches in questioning the validityof such proceedings at this stage and also as towhether the petitioner has the necessary /ocus sfandt.to question the acquisition proceedings; andin accordance with the law and whether the petitioneris guilty of delay and laches in questioning the validityof such proceedings at this stage and also as towhether the petitioner has the necessary /ocus sfandt.to question the acquisition proceedings; and

f/-;/.) whether the respondents, more particularly therespondent no.9, have commenced with and iscarrying on with the Project in violation of the Forest(Conservation) Act, 1980, and Environment(Protection) Act, 1986, and whether the conditionsprescribed under those clearances are being compliedwith or not.respondent no.9, have commenced with and iscarrying on with the Project in violation of the Forest(Conservation) Act, 1980, and Environment(Protection) Act, 1986, and whether the conditionsprescribed under those clearances are being compliedwith or not.

22. We may deal with the above points in ser/.afi.in as under:- q--.i (/-J Whether the petitioner Ilas been guilty ofsuppression of material facts and if so, whether thepetitioner is entitled to the reliefs sought for in thewrit petition.

a) On consideration of the averments contained inthe writ petition, the counter-affidavits, the re].oinderand the oral submissions placed by the parties, wefind that an organisation called the ``ACT" had filed anappeal before the NEAA under Section 11(1) of theNational Environmental Appellate Authority Act, 1997,against the grant of Environmental clearance to theProject by MOEF through its letter dated 04-08-2010(Annexure 19 to the writ petition) in which the entireissues raised in the present writ petition other thanthe issue on the land acquisition, had been raised andthe NEAA by a detailed Order dated 05-07-2007dismissed the appeal. We may reproduce below therelevant portions of the Order:- ``6.1 The Learned Counsels, Shri Ritwick Duttaand Shri Rahul Chaudhary, for the Appellant !]a±!eargued that the EIA Report prepared by ProjectProponent (Respondent No.4) is inadeciuate andfaulty and it is against the provisions of the EIANotification,1994 for the following reasons:

(i) No proper geological investigation was takenup for one-year period prior to finalization ofEIA Report. The Site Clearance permissionwas granted on 03.08.2005 by MOEF. TheWinter and Summer samplings of geologicalsurvey were taken in February 2005 and Mayup for one-year period prior to finalization ofEIA Report. The Site Clearance permissionwas granted on 03.08.2005 by MOEF. TheWinter and Summer samplings of geologicalsurvey were taken in February 2005 and May 2005 respectively based on which the EIAReport was prepared and forwarded to MOEFalong with the application forr EnvironmentClearance on 19.06.2006 well beforecompletion of one year

(ii) NO Environmental Risk Assessment such asDam Break Analvsis, ImDact of Seismicitv,Impact Study of Reduced Flow etc, wasincluded in the EIA ReDortDam Break Analvsis, ImDact of Seismicitv,Impact Study of Reduced Flow etc, wasincluded in the EIA ReDort

(iii) Six Proiects includina the Present Droiecthave been envisioned on Teesta River inSikkim but no cumulative studv of theimpact of all these Projects has been carriedQ±±i The EIA ReDort of this Droiect has beendone in isolation. The real environmentalimDact of the Droiect is not reflected in theReporthave been envisioned on Teesta River inSikkim but no cumulative studv of theimpact of all these Projects has been carriedQ±±i The EIA ReDort of this Droiect has beendone in isolation. The real environmentalimDact of the Droiect is not reflected in theReport

(iv) The issue of Muck disDosal has not beendealt with DroDeriv in the ReDort.dealt with DroDeriv in the ReDort.

(v) It has not addressed the auestion of aquaticecology.ecology.

(vi) The imDact of the Droiect on villaaes such asThena lvina in the Buffer Zone of BiosphereReserve and location of proposed dam site inthe Buffer Zone-II of KancheniunaaBiosphere Reserve have not been dealt with.Nor has the reDort dealt: with the imDact ofthe project on Wildlife in the main corridorfrom Thena and Toona to Pakal and Rahi chuof the Proiect area.Thena lvina in the Buffer Zone of BiosphereReserve and location of proposed dam site inthe Buffer Zone-II of KancheniunaaBiosphere Reserve have not been dealt with.Nor has the reDort dealt: with the imDact ofthe project on Wildlife in the main corridorfrom Thena and Toona to Pakal and Rahi chuof the Proiect area.

(vii) The EIA ReDort has not assessed the imDactof the Droiect on the indiaenous tribalDODulation, their disDlacement from theirnatural habitat and consequential political,social, cultural and ethnic repercussions;of the Droiect on the indiaenous tribalDODulation, their disDlacement from theirnatural habitat and consequential political,social, cultural and ethnic repercussions;

(viii) The EIA ReDort has not only exaaaerated thePositive imDact of the Drciiect but alsoinadequately highlighted the potentialneaative impact of the Droiect on the Healthof the local population such as increasedincidence of new diseases etc.Positive imDact of the Drciiect but alsoinadequately highlighted the potentialneaative impact of the Droiect on the Healthof the local population such as increasedincidence of new diseases etc.

6.3 An examination of affidavit, counter affidavitand rejoinder to the counter affidavit filed by theconcerned parties point out that the EIA Report hasmade a detailed examination of the geologicalconditions of the Project area and the relatedaspects, A perusal of EIA Report and EMP revealsthat EIA ReDort+ throws evidence to DroDer

assessment of Environmental Impact of theProject. The various Environment Programmessuch as Muck Management Plan, Forest and WildLife Conservation Plans, Fish Management Planetc., prove the point of view, of the Respondentthat comprehensive analysis of the impact of theproject on the local environment has been done inEIA ReDort. Necessary attention has been paid topreservation of acluatic ecology of the River Systemby assuring minimum flow of water in the system.This Authority notes that the Expert Committee onRiver Valley Projects of MOEF has examined thereport on Carrying Capacity Studv on Teesta RiverSystem and recommended the Project for approvalof ResDondent - 1. All these analyses andDrecautionarv Droara in mes confirm thecomprehensive coverage of EIA Report andDrotective nature of EMP. This Authoritv does not,therefore, find any force in the arguments of theAppellant that EIA Report prepared by Respondent-4 is faultv and inadeauate. The Draver of theAppellant that a revised EIA Report be ordered tobe DreDared is not acceDtable. The first auestion istherefore answered in neaative.

7. The other issue taken up for consideration iswhether the Public Hearing conducted by theRespondent No.3 is faulty and in contravention ofthe Provisions of relevant notification.

7.3

(v) The claims and counter claims of both thesides on the nature of the proceedings of thePublic Hearing have been examined by thisAuthority with reference to the relevantrecords made available to this Authority.The Authority also viewed the DVDs of thePublic Hearing proceedings but did not findany evidence in the proceedings, whichthreatened, hindered or obstructed orprevented the participating public fromexDressinci their views on the Droiect. IbeAppellant has not placed any material toprove that the Public Hearing conducted bythe Respondent-3 was a controlled one,denying opportunities to the people of thearea for free and fearless participation in thePublic Hearina.sides on the nature of the proceedings of thePublic Hearing have been examined by thisAuthority with reference to the relevantrecords made available to this Authority.The Authority also viewed the DVDs of thePublic Hearing proceedings but did not findany evidence in the proceedings, whichthreatened, hindered or obstructed orprevented the participating public fromexDressinci their views on the Droiect. IbeAppellant has not placed any material toprove that the Public Hearing conducted bythe Respondent-3 was a controlled one,denying opportunities to the people of thearea for free and fearless participation in thePublic Hearina.

7.4 The above discussion with reference tovarious provisions of the EIA Notification 1994, onconduct of Public I-learing would clearly show thatnone of the points raised by the Appellant issupported by the statutorv provisions. The only

point where the Appellant has successfullyhighlighted is delay and difficufty faced by ShriTseten Lepcha is getting certain documents. ThisAuthority does not therefore uphold the contentionof the Appellant that the Public Hearing conductedby Respondent -3 is faulty and in contravention ofprovisions of the relevant Notification, The secondquestion is also answered in negative.

8. In addition to the issues discussed above,the Authority would like to examine whether theProject Proponent has drawn up a comprehensiveEnvironment Management Programme forneutralizing negative aspects of the impact createclby the project on the local environment. |beHEifitE:HE[Eif t]HEifEE¥HflEEBE=itPlmEfiifiif =iEE EEEE± fflT[E#Effl±]Ecreated in land use, environment, water resourcesand its ciuality, terrestrial flora and fauna, aquaticecology, noise and air pollution on environment, acomprehensive health delivery system etc. Ibadetails of these management measures have beencited by Respondent- 4 in para 5 dealing with thescope of the EIA Report. The Proiect ProDonenthas prepared a detailed EMP in order to neutralizethe possible negative effects of the Project on theenvironment of the affected area, The Authoritvalso finds that the Respondent - 4 has drawn up aspecific Environmental Monitoring Programme on#:_ia=pec=n£Li:Fo:n#:sTe#tt:,°£°dnJYH#hth=project operation phase. The total cost earmarkedfor implementation of various components ofEnvironment Management Plan is about Rs. 1420million. Thus, the Authority finds that the ProjectProponent has formulated a comprehensive EMP soas to conserve and protect the local environment ofthe area. The Authority is, therefore, satisfied thatthe Project Proponent has taken sufficient steps toprotect and conserve the environment of theproject area.

9, As regards the Rehabilitation ancl Reliefprogrammes for the people affected by. the Project#eectfl:£#teLp5ro6]e=T#'desno::V:fthTmnw#displaced. Even though only small part of the.Public is affected by the project, the Project#p°un:notsehaosfE#d:dhas:,I,trarfab[FonF&wRepdaockp¥any force in the argument of the Appellant that theconstruction of project would unsettle the tribalpopulation from their natural habitat ancl that itwould cause political, social and ethnic problems inthe area,

10. The Authority therefore concludes that thecontentions of the Appellant on EIA Report, PublicHearing etc. cannot be accepted. Further, thecomprehensive EMP and Rehabilitation measuresproposed in the Management Plans and R & RPackage strengthen the arguments of theRespondents. This Authority has therefore decidedto reject the prayers of the Appellant. The Appealis accordingly disallowed." [emphasis supplied]

bJ 0n perusal of the Order of the NEAA (AnnexureR-1 to the counter-affidavit of the respondents no.8and 9), we find that apart from all the environmentalissues, the concern of the petitioner with regard to theKhanchendzonga National Park forming part of theKhanchendzonga Biosphere Reserve was also dealtwith by the NEAA. It had been noted that theEnvironmental Impact Assessment (in short ``EIA'')which deals with the entire gamut of theenvironmental issues, had been considered and theobservations and requirements indicated thereinaddressed completely in the EMP prepared by therespondent no.9, It had also been noted by the NEAAthat an elaborate Public Hearing had been conductedon 08-06-2006 by Sikkim Pollution Control Board, abody comprised of various State Authorities and allstake holders, and found the hearing to have beenconducted in a free and fair manner without anythreat, hindrance or obstruction preventing the participating public from expressing their views on thesubject. It, therefore, can be stated without anydoubt that issues with regard to the environmentconnected with EIA had indeed been heard,considered and disposed of by the NEAA. In thepresent writ petition the petitioner has come up withthe very same issues without disclosing theproceedings before NEAA. We, therefore, find that thepetitioner has withheld this vital information which, inour view, would be sufficient reason for this Court notto exercise its discretion in favour of the petitioner.The well-known adage ``he, who seeks relief in equitymust come with clean hands" applies with greaterforce to a petitioner who approaches the Court in aPIL.

ln the case Of K. R. Srinivas vs, R. M.Premchand & Ors. .. (1994) 6 SCC 620 .it has beenheld that ``a writ petitioner who comes to the Court forrelief in public interest must come not only with cleanhands, like any other writ petitioner, but must furthercome with a clean heart, clean mind and a cleanObJ.ective,,.

cJ There is another aspect of the matter on thisquestion. The petitioner Shri Athup Lepcha hasremained silent of the fact that he is a President ofACT. This becomes quite obvious from the signatureappearing in the representations dated 29-06-2009and 10-07-2009 in which the petitioner has signed asthe President of the ACT. It is no doubt true that inparagraph 1 of the writ petition, the petitioner hasstated that he is a Member of the forum called ACT,but the attempt at denying his association in theappeal that we find in the rejoinders filed to thecounter-affidavit of the State-respondents, respondentno.6 and respondents no.8 & 9, greatly diminishes hisstanding and credibility before this Court. We mayrefer to the following identical averments in all thethree re].oinders:-

``(iv) The parties in the two cases are different vizin the instant case the petitioner is ``ShriAthup Lepcha" of Passingdong village and``Shri Dawa Lepcha" of Lindong village, NorthSikkim was the appellant in the appealbefore the NEAA, New Delhi."in the instant case the petitioner is ``ShriAthup Lepcha" of Passingdong village and``Shri Dawa Lepcha" of Lindong village, NorthSikkim was the appellant in the appealbefore the NEAA, New Delhi."

dJ The statements have been affirmed in theaffidavit as true to the best of knowledge of thepetitioner. In the above facts and circumstances, weare constrained to conclude that the petitioner has not come with clean hands and is guilty of suppression ofmaterial facts falling within the mischief of theexpresstion suppressio veri, expressio falsi.

eJ It was submitted on behalf of the petitionerthat in a PIL the traditional concept of /ocus sfandt.requires to be discarded in order to dispense withjustice to those who are unable to approach the Courtdue to their poverty, illiteracy, helplessness ordisability or are socially or economically in adisadvantaged position and that any public spiritedperson bringing actions pro bono publico should beallowed to agitate their cause. In support of thissubmission reliance having placed, /nter a/t.a, in thecase Of S. P. Gupta & Ors. vs. President of India &Ors. : AIR ]982 SC ]49. We are in agreement tothis proposition placed by the learned counsel.However, it may be noted in that very case the ApexCourt has hastened to caution as follows:- "23. But we must be careful to see that themember of the public, who approaches the Court incases of this kind, is acting bona fide and not. forpersonal gain or private profit or political motivationor other oblique consideration. The Court must notallow its process to be abused by politicians andothers to delay legitimate administrative action orto gain a political objective. Andre Rabie haswarned that ``political pressure groups who couldnot achieve their aims through the administrativeprocess" and we might add, through the political process, ``may try to use the courts to further theiraims." These are some of the dangers in publicinterest litigation which the court has to be carefulto avoid ...... „

fj This warning has been repeatedly stated by theApex Court in a catena of decisions thereafterincluding the case of 7lbe Janata Da/ vs. S. H.Chawdhary & Ors. '. AIR 1993 SC 892 .inparagraphs 91, 96-106, 107, 108 and 109 which weneed not reproduce but would be sufficient to statethat the Hon'ble Supreme Court in this case byreferring to a number of earlier decisions warnedagainst misuse of PIL by persons who masquerade aspro bono litigants. It has been held in RaunaqInternational Ltd. vs, IVR Construction Ltd. &Ore. : flgggJ I SCC 492 that ``when a petition isfiled as a public interest litigation challenging theaward of a contract by the State or any public body toa particular tenderer, the court must satisfy itself thatthe party which has brought the litigation is litigatingbona fide for public good''. Although this decision iswith regard to a dispute in the tender process of acontract work, the principle would equally apply in thepresent case also. The other decisions cited by thelearned counsel lay down the brought contours of a PIL with which we are in full agreement in the contextof facts and circumstances obtaining therein. In so faras the present case is concerned, we have clearly setout the reasons why the standing of the petitionerstands diminished in his preferring the present writpetition.

gJ Before coming to the other aspects, we may alsonote that the Order of the NEAA was neitherchallenged before nor is it a subject matter ofchallenge in the present case. Under thecircumstances, the Order of the NEAA assumes finalityand binding upon the petitioner.

(/-/.J Whether land acquisition proceedings have beenheld in accordance with the law and whether thepetitioner is guilty of delay and laches in questioningthe validity of such proceedings at this stage andalso as to whether the petitioner has the necessary/ocus sfandl/-to question the acquisition proceedings.

aJ The validity of the, land acquisition as we haveseen has been questioned on several aspects. Bydrawing our attention to Annexure 6A being thedeclaration under Section 6 of the LA Act, the learnedcounsel on behalf of the petitioner submitted that

from the schedule of the notification, large tracts ofForest Land has been acquired for the Project, whichin law was not permissible as no Forest Land could beacquired under the LA Act or under the Forest(Conservation) Act, 1980. This submission, in ourview, is quite fallacious from what appears from therecords. We find that the Forest Land had not beenacquired but rather clearance had been sought forunder the Forest (Conservation) Act, 1980, for its usefor non-forest activities. Reference in this regard maybe made to the letter dated 02-11-2007 issued by theMOEF whereby it has been conveyed to the PrincipalSecretary (Forests), Government of Sikkim, therespondent no.3, that ``after consideration of theproposal and compliance of various conditions by theState Government, the Central Government herebyconveys its approval under Section 2 of the Forest(Conserv:tion) Act, 1980 for the diversion of 83.0405ha forest land (68,3130 ha surface forest area and14.7275 ha underground forest area) for constructionof 1200 MW Teesta Stage-III Hydro Electric Pro].ect infavour of M/s. Teesta Urja Limited in North District ofSikkim, subject to the fulfillment of the followingconditions''. This is clearly in compliance with Section 2 of the Forest (Conservation) Act, 1980, whichprohibits the State Government from passing an orderfor use of any Forest Land or any portion thereof forany non-forest purposes only if it is without theapproval of the Central Government. In the presentcase, quite obviously the approval has been accorded,of course under certain terms and conditions. Theargument, therefore, clearly appears to bemisconstrued and is accordingly re].ected.

bJ Secondly, it was submitted that the land was notacquired for a public purpose but for a privatecompany funded such company, namely, TUL,respondent no.9, and that the acquisition was bad fornon-compliance of Part VII of the LA Act. Whileconsidering this point, even assuming that TUL is aprivate company, we find that under the Agreementdated 18-07-2005 (Annexure 1 to the writ petition)entered into between the State Government and TUL,the State Government was obliged to acquire land forTUL in respect of which the learned Advocate Generalhad referred to clauses 3.3. (a) and 3.4 of theAgreement which reads as under:- C4-...- ``3.3 Acquisition and transfer of land.

C4-...-

``3.3 Acquisition and transfer of land.

(a) The Government shall acquire inassociation with SPDC, at the requestand the expense of the Company andin accordance with the provisions ofLand Acquisition Act under the StateGovernment and other applicablelaws, such private lands within theState of Sikkim as may be required bythe Company for construction,operation and maintenance of theProject (Acquired Land) and transfersuch Acquired Land in favour of theCompany for implementing theProject.association with SPDC, at the requestand the expense of the Company andin accordance with the provisions ofLand Acquisition Act under the StateGovernment and other applicablelaws, such private lands within theState of Sikkim as may be required bythe Company for construction,operation and maintenance of theProject (Acquired Land) and transfersuch Acquired Land in favour of theCompany for implementing theProject.

3.4 Lease of Land for permanent works

Upon the request of the Company andsub].ect to the provisions of laws in force, theGovernment/SPDC shall, on such terms andconditions and rates prescribed by theGovernment from time to time provide for,on a long terms lease, the Government landrequired for Permanent Works, as may benecessary for the construction, operationand maintenance of the Project except theForest Land."sub].ect to the provisions of laws in force, theGovernment/SPDC shall, on such terms andconditions and rates prescribed by theGovernment from time to time provide for,on a long terms lease, the Government landrequired for Permanent Works, as may benecessary for the construction, operationand maintenance of the Project except theForest Land."

c) Section 43 of the LA Act provides that Sections 39 to 42, both inclusive, shall not apply to theacquisition of land where under any Agreement withsuch company the Secretary of the State Governmentis bound to provide land. The case being fully coveredby the said provisions in view of the obligation of theState in the Agreement, the point raised on behalf ofthe petitioner cannot be sustained.

dj Apart from the above, the acquired land wasonly leased out to the TUL in consideration of paymentof Rs.10,000/- on annual lease rent and, therefore,naturally the ownership would remain with the SPDC,a Government undertaking. We also find that theAgreement is on the basis of BOOT having a termed of35 years at the end of which period the land would bereverted back to the`State Government. In thisregard, we may refer to Clauses 2.2.1 and 2.2.3 ofthe Agreement dated 18-07-2005 which reads asunder:- ``2.2 Agreement period2.2.1 This Agreement shall remain in force for aperiod of 35 (Thirty Five) years from theCommercial Operation Date of the Projectunless terminated earlier in accordance withthe provisions of the Agreement.2.2.1 This Agreement shall remain in force for aperiod of 35 (Thirty Five) years from theCommercial Operation Date of the Projectunless terminated earlier in accordance withthe provisions of the Agreement.

2,2.3 In the event this Agreement is not extendedin terms of Clause 2.2.2, the PermanentWorks, as defined in clause 1.2.38, alongwith the land on which the Permanent Worksare created, irrespective of the landownership, shall stand transferred to t:heGovernment at the end of the Agreementperiod'"in terms of Clause 2.2.2, the PermanentWorks, as defined in clause 1.2.38, alongwith the land on which the Permanent Worksare created, irrespective of the landownership, shall stand transferred to t:heGovernment at the end of the Agreementperiod'"

ej We may in this regard refer to the decision ofthe Hon'ble Supreme Court in Wand Ki-shore Gupfafsupraj in the following passages:- "31, \^/e must, at this stage, take into account thearaument that the whale comDensation is comina

wholly from the ComDanv and not from theGovernment or from YEIDA. The aDDellants invitedour attention to Clause 4,1(d` of the ConcessionAareement. On that basis, it was araued that theComDanv has Daid the comDensation cost and.therefore. the acquisition is cleariv covered underPart VII of the Act, and there mav be no PublicDurDose if the acauisition is made for the ComDanvand it is the ComDanv who has to shell out thewhole comDensation, Now. this arc]ument is clearivincorrect. Even if we acceDt for the sake ofaraument that all this comDensation is comina fromthe ComDanv. we must firstlv bear it in mind thatthe ComDanv aets no DroDrietarv or ownershiDric]hts over the Project assets. Nowif it isDresumed that the compensation is comina fromthe ComDanv, then it will have to be held that thewhole assets would ao to the ComDanv, At leastthat is envisac]ed in Part VII of the Act. Here. thatis not the case. The assets are to revert back tothe acauirina bodv or, as the case mav be, theGovernment. Even the lands which are utilized forthe construction of the EXDresswav are to ao backto the Government barelv after 36 vears i.e. afterthe ComDanv has utilized its riahts to recover thetoll on the EXDresswav. Secondlv, it must be bornein mind that the Concession Aareement has beenexecuted in Febmuarv. 2003, whereas theacquisition Drocess started somewhere in themonth of SeDtember. 2007. When the ConcessionAgreement was executed, the cost factor was notknown. The acauirina bodv was onlv to makeavailable the land to the concessionaire toimDlement the Proiect. There would be number ofdifficulties arising, as for example, it would becleariy not contemplated that the land would bemade available without any value or that therewould no scheme for the State Government forrecovering the expenses that it would inour inobtaining the land. The leaned Counsel appearingfor the State as also for the Company and YEIDAargued that in order to overcome and iron out suchdifficult:ies, the Agreement provides that the landwould be leased on a premium equivalent to theacquisition cost. This argument proceeds on thebasis of Clause 4.3 C of the Concession Agreement.It is to be noted then that the Dremium of the landwas not aoina to be iust the acquisition cost. butalso the lease rent of Rs. 100/- Der hectare.Therefore. the State Government was to earn Rs.100/-Der hectare for the total acquired land. whichwas about 25 million square meters over andabove the comDensation to be decided. Ibemention of the comDensation amount in addition tothe lease monev of Rs. loo/- Der hectare wouldcleariv Provide that the whole compensation was

not going to be paid by the Company alone. This isapart from the fact that through this agreement,only the extent of the compensation payable by theCcompany to YEIDA was decided. However, once allthe amounts went to the coffers of YEIDA, it wouldlose its independent character as a premium, Whenit goes into the coffers of YEIDA, it is the YEIDAwho would make the payments of the estimatedcompensation and thereby it would be as if thecompensation is paid not by the Company, but byYEIDA. The respondents have relied on the law laiddown in Pratibha Nema's Case [cited supra], morepartioulariy, paragraphs 24 and 25 therein. Therespondents also angued relying upon the decisionin Naihati Municipality and Ors. v. ChinmoyeeMukherjee and Ors. MANU/SC/0102/1997 : 1996(10) SCC 632. The respondents angued that thelaw laid down in Pratibha Nema's Case (citedsupra) emanates from the judgment in NaihatiMunicipality and Ors. v. Chinmoyee Mukherjee andOrs. (cited supra).

36. The respondents then fall back uponnature of the transaction, saying that sincewhole transaction is on the BOT basis,Government has merely chosen a third partyagency to implement the Project instead of takingup itself the task of building, designing, financingor running the Project. It was pointed out that insuch contracts, the assets did not go to the privateenterprise which was chosen by the Government.On the other hand, the assets revert to theGovernment and, therefore, the BOT Project cannever be akin to the acquisition of land for aCompany under Part VII of the Act, where the landand the assets vest and belong to the Company."

[emphas]s supplied]

The facts and circumstances in the case is insubstance part. mat.eri.a to the case before us and,therefore, we find that there is no merit in the pointraised on behalf of the petitioner and accordingly wereject the same.

fj The other aspect of the matter is that thecompany TUL, as we have found, is a joint sector Cky company with the State Government having an equityparticipating of 260/o. Reference in this regard may bemade to Clause 4.9.1 in the Agreement dated 18-06-2005 (Annexure 1 to the writ petition) which isreproduced below:- ``4.9.1 Subscription of Equity by the GovernmentThe Company shall allocate 26°/a (Twenty Sixpercent) of the Company's equity share toGovernment by way of execution of anequity subscription agreement between theCompany and Government, which shall beexecuted within a period 6(six) months fromthe date of signing of the Agreement.

Upon execution of such an equitysubscription agreement, Athena as defined inthe Definitions Clause 1.2.5 shall, on requestfrom the Government without therequirement of sovereign guarantees,arrange the funding for equity participationof Government in the Project at the mutualagreed terms.

The process from such sale of Free Powerand the dividends in respect of Government'sequity in the Project, whether in part or fullat the discretion of the Government, wouldbe utilized for repayment of the fundingarranged by Athena for financing the equityparticipation of the Government, andGovernment shall execute all the necessaryagreements as desired by the providers ofsuch funding.

However, if the Government arranges itsown equity, then Government shall beallowed to do so, provided that sucharrangement shall not be detrimental to theCompany's interest and the equitysubscriptions shall be made pro-rata with theother equity participants."

gj By a letter dated 15-05-2008 (Annexure R2 tothe counter-affidavit of the State-respondents) therespondent no.5, the Principal Chief Engineer-cum- Secretary, Energy and Power Department,Government of Sikkim, informed the ManagingDirector, TUL that the Government of Sikkim shall bearranging its own equity of Rs.296.00 crores inexercise of the option provided in paragraph 3 ofClause 4.9.1, referred to above. Therefore, fundsprovided for payment of compensation of the land andother expenditure incurred by the company fordevelopment of the Project would include theGovernment's participation of 260/o being pro-rata toits equity holding. It cannot, therefore, be said thatthere is no involvement of expenditure from the publicfund towards the acquisition of the land for theProject.

h) ln the case of praltibha Nema & Ors. vs. Stateof M.P. & Ors. .. (2003) 10 SCC 626 the Apex Courttook notice of ``an important and crucial proviso toSection 6 which has a bearing on the questionwhether acquisition is for a public purpose or for acompany. The second proviso lays down that no suchdeclaration shall be made unless the compensation tobe awarded for such property is to be paid by acompany, wholly or partly, out of public revenues or some fund controlled or managed by local authority".In paragraph 9, it has further been held as follows:- "9 ..... „ ......... Explanation 2 then makesit clear that where the compensation to be awardedis to be paid out of the funds of a corporationowned or controlled by the State, suchcompensation shall be deemed to be compensation]REREicompany, it shall not be deemed to be anacquisition for a public purpose unless at least partof the compensation is payable out of publicrevenues which includes the fund of a localauthority or the funds of a corporation owned oriEimi:i±iiiiiui]it[iif[iHizEiREifiabsence of a provision in the budget in respect ofthe cost of acquisition, whole or part, cannot affectthe validity of the declaration. Ike majorit¥J±±±gesi§±:'§n:t:ia°;nn:;:°i::bte:;:=n:I:;n£!3:§!S°::o§n::r:ii:tt:s8fi::nhd3a:t±:iuiremetoThecontribution of a smallfraction of the total Probable¥::uREfilTE: lE=ri[mEa'rvaria I(1971) 1 __SC_C_ 6Z±|inal amount from==:-ffff=

"It is not correct to determine thevalidity of acquisition keeping in view the

"It is not correct to determine thevalidity of acquisition keeping in view the amount of contribution but the motivationfor making the contribution would help indetermining the bona fides of acquisition.Further .in Malimabu case [(1978_) 2 SCC373_7 contribution of Re 1 from the Staterevenue was held adeciuate to hold thatacc]uisition was for public purpose with State£!±!]d± Therefore, the contribution of Re 1from public exchequer cannot be dubbed asillusory so as to invalidate the acquisition."

[emphasis §Llpplied]

/-) There are large number of other cases referredin this case dealing with the same question which wemay not advert to. The law laid down in the cases ofPandit Jhandu Lal & Ors. vs. The State of Punjab& Anr. ., 1961 SC 343 ar\d Valjibhai MuljibhaiSoneji & Anr. +s. State of Bombay & Ors. .. AIR]963 SC ]890 cited on behalf of the petitioner arewell-settled but clearly inapplicable in the facts of thepresent case. We find that the case of Pandi.tJhandq La/ (Svpra) rather supports the case ofPratibha Nema (supra).

/-J The land in question has been acquired for thepurpose of developing a Hydroelectric Project of 1200MW which would immensely benefit the State and itspeople by generation of revenue by sale of energy.Therefore, there can be no denying of the fact that thePro].ect is for a public purpose, It is a well-settledposition of law that the question whether setting up a Project is in public purpose or not is essentially aquest:ion that has to be decided by the Governmentbeing a socio-economic question and that, so long asit is not established that the acquisition is beingsought for some collateral purpose, the declaration ofthe Government that it is made for public purpose isnot open to challenge. It is clear from Section 6(3)that the declaration made under Section 6(1) shall beconclusive evidence that the land is needed for apublic purpose, unless it is shown that there was acolourable exercise of power. It is not open to thisCourt to go behind such declaration and find outwhether the purpose for which the land was neededwas a public purpose or not. We may in this regardrefer to the case Of Jage Ram & Ors. vs. State ofHaryana & Ors. .. (1971) 1 SCC 671, moreparticularly paragraph 8 reproduced below:- "8. There is no denying the fact that startingof a new industry is in public interest. It is stated inthe affidavit filed on behalf of the StateGovernment that the new State of Haryana waslacking in industries and consequently it wasbecome difficult to tackle the problem ofunemployment. There is also no denying the factthat the industrialization of an area is in publicinterest. That apart, the Question whether theffi:s,§d§=tt::t,:::t:s::sn:±:::t%::bo:d;jh::sd:::u::a§tt:::::

Sh5h v: State of U.P. [AIR 1967 SC 1081] On thefacts of this case there can be hardly any doubtthat the purpose for which the land was acquired isa public purpose." [emphasis supplied]

In the case of Sm[. Somawauti. & Ors. vs.State of Punjab & Ors. .. AIR 1963 SC 151 aConstitution Bench of the Hon'ble Supreme Court inparagraph 28 has held as follows:-

``(28) The Government has to be satisfiedabout both the elements contained in theexpression ``needed for a public purpose orcompany". Where it is so satisfied, it is entitled tomake a declaration. Once such a declaration ismade sub-Section (3) invests it withconclusiveness...."

In the light of the above position of law and thefacts, the submission that the entire fund for theacquisition of land was provided by a private companyand not for a public purpose cannot be sustained.

kj Another contention raised by the petitioneragainst the land acquisition proceedings is that in the garb of application of Section 17(1) of the LA Act, theGovernment was evading the requirements providedunder Section 5A that permit objections to be raisedagainst the acquisition and, that there was no urgencyfor the State Government to invoke the provision ofSection 17 of the LA Act. In our view, this contentiondoes not appear to be sound both in law and in facts.It is a settled position of law that in exercise of itsright of ``eminent domain" the State can acquire landin public interest and, the finding as to whether theobject of the acquisition of land is for public purposeor not is a matter for the State to decide on the basisof the materials placed before it and, to decide as towhether, having regard to the facts andcircumstances, such acquisition is urgent or not.Section 17 of the Act confers special powers to theGovernment which are exercisable in cases ofemergency. Sub-section (4) of Section 17 providesthat in those cases which fall under sub-Section (1) orsub-Section (2), the appropriate Government maydirect that the provisions of 5A of the Act shall notapply and make a declaration under Section 6 anytime after the publication of the notification undersub-Section (1) of Section 4. In the present case, the object of acquiring the land was for the developmentof 1200 MW Teesta Stage-Ill Power Project. In all thenotifications issued under , Section 4(1) anddeclarations under Section 6 of the LA Act, we find theexpressions ``whereas the Governor is satisfied thatland is needed for a public purpose for thedevelopment of 1200 MW Teesta State-III, HydroElectric Power Pro].ect ............... and whereas there isurgency to acquire the land to take over possessionthe Governor is further pleased to direct invoking ofSection 17(1) of LA Act of 1984". This, in our view, issufficient reason and indicative of the application ofmind by the authorities in invoking the emergencyprovision.

It is well-settled that the question of urgency is amatter for the subjective satisfaction of the properGovernment and it is not open to the Courts toexamine the propriety and the correctness of thesatisfaction on objective appraisal of facts. Theopinion can be challenged in a Court of Law only if itcan be shown that the Government never applied itsmind to the matter or that its action was rna/a f/.de. Itis quite obvious that the State Government intendedto develop the Project early keeping in view the revenue generation required to meet the variouswelfare measures for the people. Therefore, it is seenthat the State Government had considered acquiringthe land for the time bound Project on an urgent basisleading it to invoke the provision of Section 17 of theLA Act. This Court does not find any infirmity in theprocess and we do not intend to sit in judgment overthe decision of the Government and, therefore,withhold ourselves from examining as to the wisdomof it having resorted to such provisions of the LA Act.

/J Next on the question of delay in challenging theland acquisition, it is trite that challenge to a landacquisition is required to be made at the appropriatestage of the proceeding. In the present case, we findthat although urgency clause provided under Section17(1) of the LA Act had been applied notices underSection 4, declaration under Sections 6, 9 and 11have been issued vide various notificationsculminating in the possession being taken over by theUser Agency, i.e., SPDC, respondent no.7, We findthat the land owners who are persons interested asdefined under Section 3(b) of the LA Act, have notobjected to the acquisition of their land. Once possession is taken over, the land stands vested in theGovernment and nothing more survives for itschallenge except to the extent of apportionment of thecompensation amongst various claimants. It is thustoo late in the day for the petitioner now to raise suchobjections. We find substance in the argument of Mr.Jayanta Mitra, learned senior counsel, that inacquisition cases such delay is fatal. The decision ofthe Apex Court in the case of State of Ra/-asthan &Ors. vs. D. R. Laxmi & Ors. .. (1996) 6 SCC 445was referred to and reliance was placed specifically toparagraphs 1, 8, 9 and 10 the relevant portions ofwhich are reproduced below:- ``1. This appeal by special leave arises fromthe Division Bench judgment of the High Court ofRajasthan made on 2-9-1985 in WP No. 602 of::z:;Tsheect:O±=:z±±=Ea==±=±a:±Ea=a::===::a:\\the Act,,shortublished in the State Gazetteon 23-3-1977E::::::i::=iff=::a!=::!:!±:!a±!::=:i:E£:::exerciseof theOwer under Sectionof theublisitedAct and declaration under Section 6 wa_sEREEEEEEEEEEEEsought and made in March 1978 to Civil Court for!EiE#EilEEIifEEFEEEE[E|Hit|EitE!§REi

9. Recently, another Bench of this Court inMunicipal Corpn: of Grater Born_bay .v_.` Ipq¥strialDevelbpment & Investment Co. (P) Itd. re-

examined the entire case law and had held thatonce the land was vested in the State, the Courtwas not justified in interfering with the notificationpublished under appropriate provisions of the Act.Delay in challenging the notification was fatal andwrit petition entails with dismissal on grounds oflaches. It is thus, well-settled law that when thereis inordinate delay in filing the writ petition andwhen all steps taken in the acc]uisition proceedingshave become final, the. Court should be loathe tociuash the notifications. The Hiah Court has, nodoubt, discretionarv powers under Article 226 ofthe constitution to quash the notification underSection 4(1) and declaration under Section 6. B!±!j!should be exercised taking all relevant factors intoDraamatic consideration. When the award waspassed and possession was taken, the Court shouldnot have exercised its power to quash the awardwhich is a material factor to be taken intoconsideration before exercisina the bower underArticle 226.The questionwhether violation of the mandatory provisionsrrenders the result of the action as void or voidablehas been succinctly considered in Adm/n/strat/`/elaw by H.W.R. Wade (7th Edn.) at pp. 34243thus:

"The truth of the matter is that thecouit will invalidate an order only if the rightremedy is sought by the right Derson in theright proceedings and circumstances. Ikeorder may be hypothetically a nullity, but thecourt may refuse to ciuash it because of theplantiffs's lack of standing, because he doesnot deserve a discretionary remedy, becausehe has waived his rights, or for some otherEE+EgE[-EEEEHEEE=uTEffiEEEH[nE[ETFTEEEELeT]EEHiEiEJya!j| It follows that an order may be voidfor one purpose and valid for another; andthat it may be void against one person butvalid against another. A common case wherean order, however void, becomes valid iswhere a statutory time-limit expires afterwhich its validity cannot be questioned. Thestatute does not say that the void order shallbe valid; but by cutting off legal remedies itproduces that result."

10. The order or action, if ultra vires thepower, becomes void and it does not confer any#::1.F# #eeE1. n#,# ##'# .#void, if the part\/ does not approach the Courtwithin reasonable time,_which is alwavs a question

of fact and have the order invalidated oracc]uiesced or waived, the discretion of the Courthas to be exercised in a reasonable manner. Whenthe discretion has been conferred on the Court, theCourt may in appropriate case decline to grant therelief, even if it holds that the order was void. Ikenet result is that extraordinary jurisdiction of theCourt may not be exercised in such circumstances.It is seen that the acquisition has become final andnot only possession had already been taken butreference was also sought for: the award of theCourt under Section 26 enhancing thecompensation was also accepted. The order of theappellate court had also become final. Under thosecircumstances, the acquisition proceedings havingbecome final and the compensation determinedalso having become final, the High Court washighly unjustified in interfering with and inquashing the notification under Section 4(1) anddeclaration under section 6." [emphasis supplled]

mj The principle laid down in the above decision wasalso followed in the case of Swai.ka Properfi-es (PJLtd. & Anr. vs. State of Rajasthan & Ors. -, (2008)4 SCC 695 in which it has been laid down as follows:- "16. This Couit has repeatedly held that awrit petition challenging the notification foracquisition of land, if filed after the possessionhaving been taken, is not maintainable. InMunicipal Corpn. of Greater Bombay v. I.ndustrialDevelopment Investment Co. (P) Ltd. where K.Ramaswamy, J. speaking for a Bench consisting ofHis Lordship and S.B. Majmudar, J. held: (SCC

p.520, para 29)

"29. It is thus well-settled law thatwhen there is inordinate delay in filing thewrit petition and when all steps taken in theacquisition proceedings have become final,the Court should be loath to ciuash thenotifications. The High Court has, no doubt,discretionary powers under Article 226 of theConstitution to quash the notification underSection 4(1) and declaration under Section6. But it should be exercised -taking allrelevant factors into prag maticconsideration. When the award was passecdand possession was taken, the Court shouldnot have exercised its power to quash the award which is a material factor to be takeninto consideration before exercising thepower under Article 226. The fact that nothird-party rights were created in the case ishardly a ground for interference. TheDivision Bench of the High Court was notright in interfering with the discretionexercised by the learned Single Judgedismissing the writ petition on the ground oflaches."

In the concurring judgment, S.B. Majmudar, J. heldas ur\der.. (Industrial Development Investmentcase, SCC pp.522-23, para 35)

``35 ........ Such a belated writ petition,therefore, was rightly rejected by thelearned Single Judge on the ground of grossdelay and laches. TThe respondent-writE[E[if|i[tEE=]REif[H±[ififT]EE[H{E[EFif]ETEg=nEE,EmHg[[ETEE§]E§E]inaction, lethargy and indolent conduct. IkeDivision Bench of the High CoLirt had takenthe view that because of their inaction n_o_#hr#:S]s°fo:hv!jrodus?ya||ecsor::ectcfroerat:hd:-simple reason that because of the indolentconduct of the writ petitioners land gotacquired, award was passed, compensationwas handed over to various claimantsincluding the landlord. Reference applicationscame to be filed for larger compensation byclaima nts including writ petitionersthemselves. The acquired land got vested inthe State Government and the Municipa_l`EEEmEEEEHET]fi+EEifH]ifEEH.EEEm'RE+ifmETT±BmEEEEEAcc]uisition Act. Thus right to get morecompensation got vested in diverseclaimants by passing of the award, as well asvested right was created in favour of theBombay Municipal Corporation by virtue ofthe vesting of the land in the StateGovernment for being handed over to theCorporation. All these events could not bewished away by observing that no third partyrights were created by them.The writEEHEli'IfiHiiiiEE=EiETidITirEiii'EitibflgliiEEEiigEififiifiiilaches'„

17. Similarly, in Stare of Rajasthan v. D. A.[axm/. following the decision of this Court in Municipal Corpn. of Greater Bombay -it was halo ..(D. R. Laxm/ case, SCC p.452, para 9)

"9 ........ When the award was passedand possession was taken, the Court shouldnot have exercised its power to quash theaward which is a material factor to be takeninto consideration before exercising thepower under Article 226.. The fact that no. third-paity rights were created in the case, ishardly a ground for interference. TheDivision Bench of the High Court was notright in interfering with the discretionexercised by the learned Single Judgedismissing the writ petition on the ground oflaches.„

18. To the similar effect is the judgmentOf th.is Court .in Municipal Council, Ahmednagar v.Shah ftyder Be/g wherein this Court, following thedecision of this Court in C, Padma v. D)r. Secy. tothe Govt. of T.N. held.. (Shah Hyder case, SCCp.55, para 17)

"17. In any event, after the award is passed no writpetition can be filed challenging the acquisitionnotice or against any proceeding thereunder, Thishas been the consistent view taken by this Courtand in one of the recent cases (C. Padma v. Dy,Secy. to the Govt. of T.N.) .... „``

[emphasis supplied]

Apart from the above decisions, reference alsomay be made to paragraph 27 of the decision in thec.ace Nand Kishore Gupta's (Supra) roferred toabove.

nj It was further submitted by Mr. Mitra thatconsidering the magnitude of the work and thecolossal expenditure involved in the Project, thequestion of equity would require serious consideration.Notice under Section 4(1) and declaration under Sections 6 and 9 of the LA Act were made on 30-03-2007, 27-08-2007, 13-11-2007, 05-03-2007, 22-05-2007, 20-06-2008, 25-09-2008 and 24-12-2008 andthat except for a small portion comprising of 2.4980hectares, possession of rest of the land has alreadybeen taken over, but the writ petition was filed onlyon 08-03-2010. During the interregnum the progressof the work on the Project has reached an advancedstage and is expected to achieve commercialproduction of power by August, 2011 as envisaged inthe detailed Project report approved by the CentralElectricity Authority. It was stated that therespondent no.9 has spent Rs.3083 crores out of theenvisaged cost of Rs.5705.055 crores with allnecessary statutory clearances having been obtainedfor development of the Project and that the financialclosure was achieved in September, 2007, entailing tieup of Rs.4500 crores as a debt amount towards theProject cost from different financial institutions andbanks. That all topographical surveys, transversesurveys, cross sectional surveys, corridor surveys,geographical surveys mapping, sub-surface drillingetc. for all the Pro].ect components from DiversionDam to Power House Site, approach roads and muck retaining structures, etc. have already been completedand the construction is in full swing and 50% of thetunneling already achieved. It has further been statedthat more than 4000 persons are directly employed inthe construction of the Project and many are gettingbenefited indirectly. That _65°/a of the undergroundexcavation work has been completed, River Diversionfor construction of the Dam has been accomplished on15-01-2007, the Hydro Mechanical Work awarded andthe imported steel plates from Germany have alreadybeen received at the Project site. Apart from this,Rs.27,58,11,301 has been spent for theimplementation of the EMP approved by the MOEF.The work on the construction of roads for the Projectarea have already been completed. Much have beenachieved in complying with the EMP requirement,namely, Green Belt Development, Bio-diversityConservation, Wildlife Management, creation ofAmbient Air Quality, Compensatory Afforestation inCAMPA funds, CAT Plan etc. In addition, it issubmitted that Bhavishya Bharat Foundation, an NGOin the Project area, is monitoring the socialdevelopment activities which includes medical pro filingof public from Project affected villages and nearby

areas, setting up a full-fledged EnvironmentLaboratory at the Dam site. Reference was made tothe Six Monthly Progress Report submitted inDecember 2009, filed as Annexure R6 in which thedetails of the works undertaken thus far and theexpenditure incurred by the respondent no.9 in thedevelopment and execution of the Project is foundreflected, It was submitted that any delay in theexecution or commissioning of the Project would resultin huge financial losses not only to the respondentno.9 but also to the State of Sikkim and its people atlarge and that the respondents no.8 and 9 and theState of Sikkim are now in a disadvantageous positionand irretrievably altered.

o) We find sufficient force in the submission of Mr.Mitra and do not find any reason to disagree with hiscontention. In the case of Ramana Dayaram SAeffyvs. International Airport Authority of India & ors.: (197gJ 3 SCC 489 in which we find that the ApexCourt while deciding on a matter of tender althoughfound that the tender process was violative of Article14 and discriminatory, the successful bidder havingfailed to satisfy the prescribed condition of eligibility, yet the Court refused to set aside the tender processas the petitioner had approached the Court belatedly.We may refer to the relevant portion of paragraph 35

of the decision which reads as under:-

``35. Now, on this view we should haveordinarily set aside the decision of respondent 1accepting the tender of respondents 4 and thecontract resulting from such acceptance but in viewof the peculiar facts and circumstances of thepresent case, we do not think it would be a soundexercise of discretion on our part to upset thatdecision and void the contract.

the appellant had filed the writ petition immediately Constitution+"

In the present case also having regard to thefacts and circumstances, it would be iniquitous tointerfere in the land acquisition proceedings and theProject work, even assuming that it was in violation, ofthe laws, at the instance of the petitioner who appearsto be grossly negligent and quite somnolent inpreferring the present writ petition.

pJ We also find that the petitioner lacks thenecessary /ocus standt. to question the land acquisitionproceedings as he is neither the land owner nor aperson interested in terms of Section 3(b) of the LAAct. This is apart from what we have alreadyobserved in paragraphs 22(i) (a), (b) and (c) aboveon this question in the context of his bona f/.des inraising the other questions relating to the alleged non-compliance of the environment laws.

(/./-/-J Whether the respondents, more particularly therespondent no.9, have commenced with and iscarrying on witli the Project in violation of the Forest(Conservation) Act, 1980, and Environment(Protection) Act, 1986, and whether the conditionsprescribed under those clearances are bringcomplied with or not.

aj While pressing the contention that the work onthe Project was started by the respondent no.9 evenbefore obtaining the necessary Clearance under theForest (Conservation) Act, 1980, and the Environment(Protection) Act, 1986, the learned counsel drew ourattention to the third paragraph of the EnvironmentalClearance issued vide letter dated 04-08-2006 beingAnnexure 19 to the writ petition with specific

reference to the sentence ``out of which 40.288 ha, isa forest land, Forest clearance is yet to be obtained''.As per the learned counsel, this was a clear evidencethat the Forest Clearance had not yet been obtainedand that the mandatory conditions of theEnvironmental Clearance had also not been compliedwith. It was submitted with reference to letter dated02-11-2007, being Annexure R3 to the counter-affidavit of the respondent no.6, that the letter dated12-10-2007 of the MOEF was only a recommendationfor Forest Clearance `in principle' only and, that thefinal approval would be accorded only on fulfillment ofthe terms and conditions prescribed therein. As perthe learned counsel, those conditions had also notbeen fulfilled. We have carefully gone through theletter dated 04-08L2006 (Annexure R2) grantingEnvironmental Clearance and letter dated 02-11-2007(Annexure R3) both issued by the MOEF to thePrinciple Secretary (Forests), the respondent no.3and, we find that the letter dated 04-08-2006 is oneby which the Environmental Clearance was grantedunder the Environment (Protection) Act, 1986, whichbecomes evident from paragraph 4 on the said letterwhich is reproduced below:- ``4. The Environmental Management Plansubmitted by M/s Teesta Ur].a Limited has beenexamined. The Ministry of Environment andForests hereby accords environmental clearance asper the provisions of Environmental ImpactAssessment Notification, 1994, sub_iect to strictcomDliance of the terms and conditions asfollows : -" [empl`asis supplied]

bj On the other hand, letter dated 02-11-2007(Annexure R3) is a Final Forest clearance accordedunder Section 2 of the Forest (Conservation) Act,1980, relevant portion of which reads as under:- TO, The Principal Secretary (Forests)Government of SikkimGangtok, Sikkim Sub: Diversion of 83.0405 ha of forest land (68.3130 hasurface forest area and 14.7275 ha undergroundforest area) for construction of 1200 MW TeestaState-Ill Hydro Electric Project by M/s Teesta UrjaLimited in North District of Sikkim Sir, I am directed to refer to your Letter no.1096(1070)/FCA/FEWMD dated 13.12.2006 on the abovementioned subject, wherein prior approval of the CentralGovernment for the diversion of 83.04005 ha of forestland (68.3130 ha surface forest area and 14,7275 haunderground forest area) for construction of 1200 MWTeesta Stage-Ill Hydro Electric Pro].ect by M/s Teesta UrjaLimited in North District of Sikkim, was sought, inaccordance with Section 2 of the Forest (Conservation)Act, 1980. The said proposal has been examined by theForest Advisory Committee constituted by the CentralGovernment under Section 3 of the aforesaid Act.

2. After careful consideration of the proposal ofthe State Government of Sikkim and on the basis ofthe recommendations of the Forest AdvisoryCommittee, the Central Government granted inprinciple approval to the said proposal vide letter ofeven no dated 12-Oct 2007, subject to certainconditions. The compliance of these conditions was submitted by Nodal Officer cum Chief Conservator ofForests, Sikkim, vide letters No,786(1070) dated18.10.2007 and 801(1070) dated 24.10.2007. Afterconsideration of the proposal and compliance ofvarious conditions by the State Government; theCentral Government hereby conveys its approvalunder Section 2 of the Forest (Conservation) Act,1980 for the diversion of 83.0405 ha forest land(68.3130 ha surface forest area and 14.7275 haunderground forest area) for construction of 1200 MWTeesta Stage-Ill Hydro Electric Project in favour of M/s.Teesta Urja Limited in North District of Sikkim, subject tothe fulfillment of the following conditions.

cJ It appears that the petitioner has failed toappreciate these letters in its proper perspective. Assubmitted by Mr. Karma Thinlay Namgyal, learnedCentral Government Counsel, the letter dated 04-08-2006 being in relation to the Environmental Clearance,it was indicated therein that the Forest Clearance wasyet to be obtained as the procedure for obtaining thetwo Clearances are quite distinct being under twodifferent statutes, i.e., the Forest (Conservation) Act,1980, for Forest Clearance and the Environment(Protection) Act, 1986, for Environmental Clearance.We have already seen that the Forest Clearance wasaccorded by letter dated 02-11-2007 paragraph 2 ofwhich as extracted above will clearly indicate that theterms and conditions stipulated for the ``in principleapproval" for diversion of the specified area of ForestLand having been complied with, the final approval under Section 2 of the Forest (Conservation) Act,1980 was being thereby accorded. We have notedthat the clearances were granted by the MOEF onlyafter those were considered by the CentralEmpowered Committee and the Hon'ble SupremeCourt as revealed from the submission of the learnedAdvocate General set out hereinbefore in paragraph18(xii) and sub-paragraphs thereunder. Theclearances having culminated in the directions of theHon'ble Suprme Court, nothing further remains to beexamined on this aspect by this Court as venturing todo so would tantamount to reviewing the orders of theHon'ble Supreme Court. Thus, the submission thatrequisite clearances under the relevant statutes hadnot been obtained before commencing with the Projectstands belied.

dj The next contention that while carrying on withthe work the terms and conditions prescribed for theclearances have not been complied by TUL, do notappear to be correct. We find that the respondentno.9 had submitted an Environment Management Planwhich was necessary for obtaining EnvironmentalClearance under the Environmental (Protection) Act,

1986. A Multi-Disciplinary Monitoring Committee formonitoring and evaluation of works being carried outby the TUL is also found to have been constituted bythe MOEF. In its report dated 24-06-2009 submittedafter their site visit on 09-03-2010, the Multi-Disciplinary Monitoring Committee has observed thatthe Project Developers had made encouragingattempts to follow up with the terms and conditionslaid down in the Environmental Clearance of theProject and that Committee Members expressed theirsatisfaction with the various activities beingimplemented under EMP. We also find thatrespondent no.9 is required to give Six MonthlyProgress Reports on the status of the EMP to the MOEFthe respondent no.6, which clearly goes to show thatthe Project work is being closely monitored by theauthorities in order to ensure that all the conditionsprescribed in the clearances are being complied with.It has been categorically stated on behalf of the MOEF,respondent no.6, in their affidavit that suchmonitoring is being carried out intermittently by it forassessment of . compliance of the conditions ofEnvironmental Clearance as well as Forest Clearance.

c3

a) ln the case of Indian council for Enviro-LegalAc[i.on (supraj it was observed that the primaryeffort of the Court, while dealing with theenvironmental-related issues, is to see that theenforcement agencies, whether it be the State or anyother authority, take effective steps for theenforcement of the laws and that effective orders bepassed so as to ensure that there can be protection ofenvironment along with development and that itbecomes necessary for the court dealing with suchissues to know about the local conditions which arebetter known to the High Courts and, therefore, theHigh Courts have to shoulder greater responsibilitiesin tackling such issues and assume the responsibilityof seeing to the enforcement of the laws and examinethe complaints made by the local inhabitants aboutthe infringement of the laws and spreading ofpollution or degradation.

fJ From the materials available on the records, wefind that the various conditions of the clearancesunder the Forest (Conservation) Act, 1980, and theEnvironment (Protection) Act,. 1986, are beingimplemented to the satisfaction of the MOEF, respondent no.6, which is the appropriate authorityhaving the requisite expertise to deal with the matter.

gj The leaned counsel for the petitioner referred tothe case Of Narmalda Bachao Andolan vs. union ofIndia & Ors. .. (2000) 10 SCC 664 to press homethe point that the Hon'ble Supreme Court hadintervened in the matter after 25 years of the Projecthaving commenced. This is no doubt true, but theintervention of the Hon'ble Supreme Court was onlywith regard to the compliance of the relief andrehabilitation of the displaced persons which had beenfound to have been violated by the Project developersand, not to consider the merit of the entire Project. Infact in paragraph 61 of the judgment, the majorityview was that there would be a positive impact ofecology as a result of the Project and that the SardarSarovar Project would be making positive contributionin the preservation and control of the ecology inseveral ways. In paragraph 124 of the samejudgment, the majority also held that the Dam isneither a nuclear establishment nor a pollutingindustry and its construction undoubtedly would resultin the change of environment which could not be presumed to be a disaster ecologically. Forconvenience the relevant passages may bereproduced below:- "48. When such Droiects are undertaken andhundreds of crores of Dublic monev is sDent.individual or organisations in the garb of PIL cannotbe permitted to challenge the policy decision takenafter a lapse of time. It is aaainst t:he nationalinterest and contrarv to the established principlesof law that decisions to undertake developmentalprojects are permitted to be challenged after anumber of years during which period public moneyhas been spent in the execution of the project.

49. The petitioner has been agitating againstthe construction of the dam since 1986, beforeenvironmental clearance was given andconstruction started. It has. over the vears.chosen different paths to oppose the dam. At itsinstance a Five-Member Group was constituted, butits report could not result in the stoppage ofconstruction pari passu with relief andrehabilitation measures. Havina failed in itsattempt to stall the project the petitioner hasresolted to court proceedings by filing this writpetition long after the environmental clearance wasgiven and construction started, The Dleas relatinato height of the dam and the extent ofsubmergence, environment studies and clearance,hydrology, seismicit\/ and other issues, exceptimplementation of relief and rehabilitation, cannotbe permitted to be raised at this belated stage.

50. This Couit has entertained this petitionwith a view to satisfy itself that there is properimplementation of the relief and rehabilitationmeasurers at least to the extent they have beenordered by the Tribunal's Award. In short. it wasonly the concern of this Court for the protection ofthe fundamental rights of the oustees under Article21 of the Constitution of India which led to theentertaining of this petition.' It is the relief andrehabilitation measures that this Court is reallyconcerned with and the petition in regard to theother issues raised is highly belated. Though it is,therefore, not necessary to do so, we howeverpresently propose to deal with some of the otherissues raised.

124. In the present case we are not concernedwith the polluting industry which is beingestablished. What is being constructed is a langedam. The dam is neither a nuclear establishmentnor a polluting industry. The construction of a damundoubtedly \^rould result in the change ofenvironment but it will not be correct to presumethat the construction of a large dam like the SardarSarovar will result in an ecological disaster. Indiahas an experience of over 40 years in theconstruction of dams. The exDerience. does notshow that construction of a large dam is not cost-effective or leads to ecological or environmentaldegradation. On the contrary there has beenecological upgradation with the construction oflarge dams. What is the impact on environmentwith the construction of a dam is well known inIndia and, therefore, the decision in A. P. Po//I/tfonGontro/ Board case |{1999) 2 SCC 718] will haveno aDDlication in the Present case."

[emphasis sopplied]

In the case before us, as would be evident fromparagraph 9 of the Order of the NEAA, there are only156 families who have been partially affected andnone of them would be displaced and necessary reliefand rehabilitation package for them are beingimplemented in meticulous detail to their satisfaction.

h) The learned counsel invited our attention to thereport of the Department of Mines, Minerals andGeology, Government of Sikkim filed as Annexure PIIItofthe rejoinder to the counter-affidavit of respondentsno.8 and 9 indicating damages caused by theconstruction of Hydel Project and several newspaperreports to that effect. The learned counsel also

submitted that the diversion of the Protected ForestLand has resulted in environmental pollution adverselyeffecting the growth of Cardamom, the main source ofthe income of the people and that the Project hasresulted in causing dust and pollution of water causingdestruction of the adjoining forest, environment andecology of the area depriving the people of the right tolife guaranteed under Article 21 of the Constitution ofIndia, In the written argument, reference has beenmade to a newsletter published by the respondentno.3, Forest Department, Government of Sikkim,wherein it has been stated, inter alia, that the State ofSikkim is ecologically sensitive and fragile. Ourattention was drawn to Annexures 21, 22, 25 and 26to show that the Project had resulted in considerabledestruction of the environment and ecology of thearea as a result of the Project work. These indeedappear to indicate that there are some adverse effectdue to the ongoing work of the Project, but this is atthe initial stage of the Project. The materials placedbefore us are either newspaper reports or scientificopinions but, as held in the case of A. P. Po//u[;onControl Board vs. Prof. M. V. Nayudu (RETD.) &Ore. : f]g99) 2 SCC 718, the difficulty faced by environmental courts in dealing with highlytechnological or scientific data appears to be a globalphenomenon. This has.been a subject matter ofinternational deliberations leading to great changes inenvironmental concept during the period between theStockholm Conference of 1972 and the Rio Conferenceof 1992 leading to the emergence of the term"precautionary principle" and the concept of "burdenof proof in environmental matters. It was thus held inparagraphs 37, 38 and 39 as under:- "37. It is to be noticed that while theinadeciuacies of science have led to theN]EIT,ErraET][T,[[usEE]§]+,:EEvljE[[EE±E[§Eitd=E§jH[:[E:E[§E.I?urcleli as to the absence of injurious effect of theEEEEEEEEEEEHffiEnEEEEEu±mEH=unEE±ma#j[+EEHEnv/ronmenra/ team/ng, 2 Global Envtl. Change111 (1992) at p. 123]. This is often termed as areversal of the burden of proof, because otherwisein environmental cases, those opposing the changewould be compelled to shoulder the evidentiaryburden, a procedure which is not fair. Therefore. itis necessary that the party attempting to preservetlie status cluo by maintaining a less polluted stateshould not carry the burden of proof and the partywho wants to alter it, must bear this burden. [See]ames M. 0lson-. "Shifting the Burden of Proof", 20Envtl. Law, p.891 at p.898 (1990).] [Quoted in Vol.22 (1998) Harv. Env. Law Review p. 509 at 519,550].

38. The precautionarv principle suggeststhat where there is an identifiable risk of serious orirreversible harm, including, for example, extinction.::::r::a::i::;ft:eeDse::i::t:i§i;::§di:s:t:hi:jcdt§§°:ii::i:§te::;nt:hii±

Rapporteur, International Law Commission, dated34-1998, para 61).

39. It is also explained that if theenvironmental risks being run by regulatoryinaction are in some way "uncerfa/n but non-neg//g/A/e", then regulatory action is justified. Thiswill lead to the question as to what is the "non-negligible risk". In such a situation, the burden ofDroof is to be Dlaced on those attemDtina to alterthe status duo. Thev are to discharae this burdenbv showina the absence of a "reasonable ecoloaicalor medical concern". That is the required standardof proof ........ „." [emphasis supplied]

/.) When we apply the above principle of law in thepresent case, we find that the petitioner has failed todischarge the burden of proof, the onus of which liesupon him. As already observed, the Project is in itsconstruction phase and for the precise reason ofneutralising such ,adverse impact, the conditions forstrict compliance have been stipulated in the statutoryclearances already alluded to above and the EMPapproved by the MOEF. We also have noticed that aMDMC has been constituted under the direction of theMOEF which has been intermittently monitoring thecompliance of the conditions and the EMP requiringthe respondent no.9 to submit Six Monthly ProgressReports to the MOEF.

I) lnthe caseof K. M. Chinnappa vs, union ofIndia & Ors. .. AIR 2003 SC 724 .it has been observed as follows :- "40. It cannot be disputed that nodevelopment is possible without some adverseeffect on the ecology and environment, and theprojects of public utility cannot be abandoned andit is necessary to adjust the interest of the peopleas well as the necessity to maintain theenvironment. The balance has to be struckbetween the two interests. Where the commercialventure or enterprise would bring in results whichare far more useful for the people, difficulty of asmall number of people has to be by-passed. Ikecomparative hardships have to be balanced and theconvenience and benefit to a larger section of thepeople has to get primacy over comparativelylesser hardshiD.

45. Sustainable development is essentially apolicy and strategy for continued economic andsocial development without detriment to theenvironment and natural resources on the Qualityof which continued activity and furtherdevelopment depend. Therefore, while thinking ofthe developmental measures the needs of thepresent and the ability of the future to meet itsown needs and requirements have to bInview. While thinking of the present, thshould not be forgotten. We owe a duty togenerations and for a bright today, bleak tomorrowcannot be countenanced. We must learn from ourexperiences of past to make both the present andthe future brighter. We learn from our experiences,mistakes from the past, so that they can berectified for a better present and the future. Itcannot be lost sight of that while today isyesterday's tomorrow, it is tomorrow's yesterday."[emphasis supplied]

No doubt, the concern and anxiety expressed bythe petitioner is laudable but, in our view, in the factsand circumstances alluded to by us, we find that theconcern is quite unfounded.

k) Having addressed to the primary issues agitatedin the writ petition, we may deal with some otheraspects that have been raised before us on behalf ofthe petitioner. As already noted, the learned counselon behalf of the petitioner sought to raise aspreliminary ob].ection on the question relating torestriction imposed on people entering into the NorthDistrict of Sikkim. While pressing the submission, thelearned counsel drew our attention to notificationno.665/PS dated 27-09-1954 being Annexure 13 tothe writ petition by which entry of traders/agents intoDzongu area was strictly banned. Reference was alsomade to Annexure 11 being P.roclamation of theMaharaja of Sikkim dated 30-08-1956, mostspecifically to the following part thereof:- ``3. AND WHEREAS, thirdly, His Highnessdeems fit that the interests of the indigenous andbackward people in the Nort:h Sikkim area require,as hitherto, to be duly safeguarded.

HIS HIGHNESS is pleased to order that therules relating to the settlement and/or the carryingon of any occupation in such areas (i.e., North ofthe line formed by the Dick Chhu from the Chola,down the Tista to Ranghap Chhu, up the RanghapChhu till it meets the 27.25 minutes latitude andthence along it to the Western border of Sikkim) byoutsiders (non-indigenous) only on a permit issuedby the Sikkim Darbar shall continue to hold force."

q--..-.-.,

/j lt was most passionately argued that theaforesaid laws being pre-merger laws duly protectedunder clause (f) of Article 371F of the Constitution,continues to be laws in enforce and that since thequestioned Project falls within the restricted areaspecified in those laws, permitting it to be taken upwas in clear violation of those laws and, therefore,illegal. We, no doubt, accept that the laws are laws inforce in terms of clause (f) of Article 371F of theConstitution, but we find it difficult to accept thatpermitting the Project to come up in the area are inviolation of those laws. Notification no.665/PS dated27-09-1954 only restricts the traders/agents intoDzongu area which appears to have been issued forprotection of the inhabitants of that area from beingexploited by the traders/agents. The respondent no.9which is a joint venture company with the StateGovernment of Sikkim cannot be termed astraders/agents from the very nature of their workbeing development of a Hydroelectric Project.Secondly, the Proclamation dated 30-08-1956 doesnot create an absolute embargo in entering the NorthDistrict of Sikkim but does so only to the extent thatoutsiders would not be allowed to enter the District »

without permits issued by the State Government. Inthe present case, such permission can be reasonablyinferred in view of the status of the respondent no.9as a joint venture company with the StateGovernment and the nature and magnitude of thePro].ect. We, therefore, re].ect the contentions asbeing untenable.

mj It w`as next contended that by the Registration ofCompanies (Amendment) Act Sikkim, 2007, whichcame to into effect on 25-09-2009, Section 2 of theRegistration of Companies Act Sikkim, 1961, has beenamended by insertion of sub-Section (e) theretowhereby it has become mandatory for any companyregistered under the Companies Act, 1956, to enlistunder the Registration of Companies Act Sikkim,1961, for the purpose of registration/entry as acompany under that Act. It was submitted that therespondent no.9, a company registered underCompanies Act, 1956, had not been enlisted asrequired under the aforesaid provision making itsoperation in the State of Sikkim illegal. Thissubmission, in our view, has no substance in as muchas the Act only requires enlisting under the fry Registration of Companies Act Sikkim, 1961, in orderto be identified as a company under it. No time limithas been prescribed therein and no consequenceprovided in the event of a company not enlisting.From the Agreement dated 18-05-2005 (Annexure 1),it can be seen that the respondent no.9 company wasincorporated much before the enactment of theRegistration of Companies (Amendment) Act Sikkim,2007.

Notwithstanding such fact, we find from letterdated 16-06-2010 (Annexure P-VIII to the rejoinder tothe counter-affidavit of respondents no.8 and 9) thatthe respondent no.9 has applied for enlistment underthe Registration of Companies Act Sikkim, 1961, andis under process. This being in due compliance of thelaw, the contention stands hereby rejected.

23. The parameters of powers of the Courts inmatters relating to issues of environment and ecology arequite complex and sometimes perplexing. This has foundexpress.ion .ir\ the case oF A. P. Pollution Control Boardfsupra) wherein the Hon'ble Supreme Court has observedthat ``while environmental aspects concern `Iife', humanrights aspects' concern `liberty'. In the context of emerging

jurisprudence relating to environmental matters, - as is thecase in matters relating to human rights, - it is the duty ofthe Supreme Court to render justice by taking all aspectsinto consideration. However, in such cases sometimes theSupreme Court has been finding sufficient difficulty inproviding adequate solutions to meet the requirements of \public interest environmental protection, culmination ofpollution and sustained development." No doubt, right toclean environment and preservation of ecology has sincebeen traced to right to life provided under Article 21 of theConstitution, but while exercising the powers under Article32 or 226 of the Constitution, the Courts have interferedonly when cases of violation of the laws and the guidelinesprescribed thereunder were clearly made out. Whether toset up a Project or not is a question that lies within thedomain of the Government and would be justiciable only ifthere are glaring instances of violation of the rightsconferred upon the citizens under the Constitution and thevarious laws giving effect to such rights and, as to whetheror not relevant aspects have been taken into considerationwhile arriving at such decision without being influenced byextraneous considerations or rna/a fr.des.

24. Ir\ the case Of Shri Sachidanand Pandey &Anr. vs. The State of West Bengal & Ors. .. AIR 1987SC ]]09, it has been held as under:- "4 ....... Obviously, if the Government isai;i;e.'i:;:""i:rfe. i:li6tlf-'tonsiatfatiths requiring.thought and dellberatlon and has arTlved at aconscious decision after taking them into account,relevant considerations are not borne in mind andE-8r,ki-irrelevant considerations influence the decision, theEEEEHEEEHE=EifTHmEEnnEE],EEEEffThillEHEfiecology is brought before the Court, the Court isbound to bear in mind Article 48-A of theConstitution, Directive Principle which enjoins that"The State shall endeavour to protect and improvethe environment and to safeguard the forests andwild life of the country," and Art. 51A(g) whichproclaims it to be the fundamental duty of everycitizen of India" to protect and improve the naturalenvironment including forests, lakes, rivers andwild life, and to have compassion for livingcreatures." When the Court is called upon to giveeffect to the Directive Principle and thefundamental duty, the Court is not to shrug itsshoulders and say that priorities are a matter of#.,atyn.dfi_examine whether appropriate consideration areborne in mind and irrelevancies excluded. Inappropriate cases, the Court may go further, buthow much further must depend on thecircumstances of the case, The Court may alwaysBEnitE ,HFjgH EE§REE,=ELHEHEEEEconsiclerations. When the ciuestion involves the+nice balancing of relevant considerations, the Courtmay feel justified i.n resigning itself to acceptanceof the clecision of the concerned authority." [emphasis supplied]

25. In the case oF Dahuna Taluka Environment

25. In the case oF Dahuna Taluka Environment Protection Group & Anr. vs. Bombay Suburban Electricity Supply Company Ltd. & Ors. .. (1991) 2 SCC539, it has been held that:- "2. The limitations, or more aDDroDriatelv. the serf-imposed restrictions of a court in considering suchan issue as this have been set out bv the Court inRural Litjciation & Entitlement Kel]d_r_a_v_._S_t_a_te_o_fU.P. I(1987) 1 SCR 6371 and Sachid_a_nana__P_a_I]d_ew_v. State of W.B. _/fJ987_) 2 SCC 295_7. |!]eobservations in those decisions need not bereiterated here. It is sufficient to observe that it isDrimarilv for the governments concernedconsider the importance of Public Droiects forbetterment of the conditions of lMna of theon the one hand and the necessitv for Dreservationof social and ecoloaical balances, avoidance ofdeforestation and maintenance of Duritv of theatmosphere and water free from Pollution on theother in the liaht of various factual, technical andother aspects that mav be brouaht to its notice bvvarious bodies of lavmen, experts and Publicworkers and strike a iust balance between thesetwo conflictina obiectives. The court's role isrestricted to examine whether the Government hastaken into account all relevant asDects and hasneither ignored or overlooked any materialconsiderations nor been influenced bv extraneousor immaterial considerations in arrivina at its finaldecision. " [emphasis supplied]

26. In the case Of Rural Litigation and

Entitlement Kendra & Ors. vs. State of u.P. & Ors. ..AIR ]987 SC 359, while deciding on a dispute relating tomining operation being carried out in the Mussoorie Hillrange in the then State of U.P. (now Uttarakhand), it hasbeen held as follows:- "17. The limestone quarries in this area areestimated to satisfy roughly three per cent of theover the operation and strike a balance betweenDreservation and utilisation that would indeed be amatter for an exDert body to examine and on thebasis of appropriate advice, Government should take a policy decision and firmly implement theSa me. " [emphasis supplied]

2J.We are conscious of the fact that as observedearlier, the Courts in many such cases have stepped in andhave interfered with the Projects, but those were ca.seswhere there were either glaring instances of violation of thelaws or the conditions under which those were permitted or,where the Governments were found to have not consideredthe relevant aspects and that the decisions were taken onextraneous considerations or where rna/a f/.des were foundwrit large.

28. Under the facts and circumstances discussedabove, we shall deal with the issues set out in paragraph 21as under:- f/.J whether the petitioner has been guilty ofsuppression of material facts and if so, whether thepetitioner is entitled to the reliefs sought for in thewrit petition;suppression of material facts and if so, whether thepetitioner is entitled to the reliefs sought for in thewrit petition;

(a) The Environmental Clearance dated 02-11-2007(Annenxure 19 to the writ petition) had beenchallenged on the very grounds, as in thepresent case before the NEAA by the ACT, aforum of which the petitioner is the President,and the NEAA considering all aspects of thematter, had dismissed the appeal thereby(Annenxure 19 to the writ petition) had beenchallenged on the very grounds, as in thepresent case before the NEAA by the ACT, aforum of which the petitioner is the President,and the NEAA considering all aspects of thematter, had dismissed the appeal thereby upholding the Environmental Clearance. In thewrit petition, the petitioner has neither disclosedof the appeal having filed before the NEAA and ofit having been dismissed nor of the fact that heis the President of ACT and, therefore, guilty ofsuppressio veri, expressio falsi clearlydisentitling him of the discretionary andequitable reliefs being sought for by him.

f;/-J whether land acquisition proceedings have been heldin accordance witli the law and whether thepetitioner is guilty of delay and laches in questioningthe validity of such proceedings at this stage andalso as to whether the petitioner has the necessary/ocus sfandi. to question the acquisition proceedings;and (a)The private land required for the Project appearsto have been acquired validly in due complianceof the provisions of the Land Acquisition Act,1894 and that the Forest Land have been put touse only after obtaining the necessary clearancesunder the Forest (Conservation) Act, 1980 andthe Forest (Protection) Act, 1986.to have been acquired validly in due complianceof the provisions of the Land Acquisition Act,1894 and that the Forest Land have been put touse only after obtaining the necessary clearancesunder the Forest (Conservation) Act, 1980 andthe Forest (Protection) Act, 1986.

(b) That the petitioner is guilty of delay and lachesin challenging the land acquisition of the entireprocess of the acquisition had been completed inthe year 2007-08 and possession of the landin challenging the land acquisition of the entireprocess of the acquisition had been completed inthe year 2007-08 and possession of the land taken over leaving no further scope for assailingthe acquisition. We also find that the work onthe Project has progressed to an advanced stageat an expenditure of thousands of crores ofrupees to meet the deadline of commissioningthe Pro].ect for commercial production by 2011-12 thereby rendering the position of therespondent no.9 and the State-respondentsirretrievably altered. At such a juncture, it willbe iniquitous for this Court to intervene in thematter.

(c) The petitioner neither being one of the landowners whose land was acquired for the Projectnor a ``person interested" as defined underSection 3(b) of the Land Acquisition Act, 1894,lacks the necessary /ocus srandt. to prefer thewrit petition. The inadequacy in his /ocus stand/.is also compounded by his bona fi.des beinggravely suspect for the reason of our conclusionat (i) (a) above.

f/-/-/.J whether the respondents, more particularly therespondent no.9, have commenced with and iscarrying on witli the Project in violation of the Forest (Conservation) Act, 1980, and Environment(Protection) Act, 1986, and whether the conditionsprescribed under those clearances are beingcomplied with or not.

(a) While deciding to start the Project in questionthe Government appears to have taken intoaccount all relevant aspects and do not appearto have ignored nor overlooked any materialconsideration nor influenced by extraneous orirrelevant considerations in arriving at its finaldecision.

(b) Records clearly reveal that all requisite actions,namely, the Environment Impact Assessment(EIA), Environmental clearance under theEnvironment (Protection) Act, 1986, ForestClearance under the Forest (Conservation) Act,1980, drawing up a detailed EnvironmentManagement Plan (EMP), etc., have been takenwhich, we find are being strictly implementedunder the close supervision and monitoring ofthe MOEF through the Multi-DisciplinaryMonitoring Committee.

ds/

(c) The merit of the clearances recommended by theMOEF have been examined by the CentralEmpowered Committee (CEC), a bodyconstituted under the Orders of the Hon'bleSupreme Court which, had finally been acceptedand cleared by the Hon'ble Supreme Court and,therefore, binding on all including this Court.

29. In the result, the writ petition hereby standsdismissed.

30. No order as to costs.

( P. D. Dinakaran )Chief Justice14-10`2010

Judge14.10-2010

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