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2014 Supreme(Sikk) 28
THE HIGH COURT OF SIKKIM : GANGTOK
NARENDRA KUMAR JAIN, S. P. WANGDI, JJ.
Chewang Pintso Bhutia - Petitioner
versus
State of Sikkim through its Chief Secretary, Tashiling Secretariat, Bhanu Path, Gangtok, Sikkim - Respondents
D.B. WP(C) No.22 of 2012
D.B. WP(C) No.23 of 2012
Decided On: 05-06-2014
For Petitioner:Mr. Zangpo Sherpa, Advocate with Mr. Dewen Sharma Luitel, Mr. Pem Tshering Lepcha and Ms. Doma Lepcha, Advocates.
For Respondent No.1:Mr. J. B. Pradhan, Additional Advocate General with Mr. Santosh K. Chettri, Mrs. Pollin Rai, Assistant Government Advocates, Mrs. Rita Sharma and Ms. Sabina Chettri, Advocates.
For Respondents No.2 & 3:Mr. Karma Thinlay Namgyal, Central Government Advocate with Mr. Thinlay Dorjee Bhutia, Advocate.
For Respondents No.4 & 5:Mr. V. Giri, Mr. V. Sekhar and Mr. A. Moulik, Senior Advocates with Mr. Nalin Talwar, Mr. Vikram Mehta and Mr. Manish Kumar Jain, Advocates.
For Respondent No.7:Mr. Jorgay Namka, Advocate with Ms. Chenga Doma Bhutia, Mr. Jigdal G. Chankapa, Ms. Pema Bhutia and Ms. Mirmit Lepcha, Advocates.
For Respondent No.8:Ms. Indu Malhotra, Senior Advocate with Mr. S. S. Hamal, Advocate.
Environmental and wildlife clearances for infrastructure projects are distinct mandatory legal requirements. Under the public trust doctrine and precautionary principle, project developers must obtain necessary clearances from wildlife authorities independently, and development projects must appropriately account for protected religious and cultural sentiments of local communities.
Headnote:(A) Constitution of India - Articles 21, 25, 26, 29, 48-A, 51-A - Right to religion and environment - Balancing development and environmental protection. Wildlife (Protection) Act, 1972 - Sections 5A, 5B, 5C - Requirement of wildlife clearance for infrastructure projects in sensitive zones - Precautionary principle and public trust doctrine. (Paras 6, 17, 37, 38)
(B) Administrative Law - Environmental clearance process - Requirement for independent wildlife clearance - Failure to adhere to procedures for ecological impact assessment - Validity of public consultation in development projects. (Paras 10, 19, 38)
Facts of the case:
Public interest litigations were filed challenging the implementation of a major hydroelectric project in an ecologically fragile region. The petitioners contended that the project area is of deep religious significance and that its construction violates fundamental rights regarding religious practices. Furthermore, the petitioners alleged that the project commenced without necessary wildlife clearances, despite being located within a vicinity requiring such approvals under environmental regulations and judicial directives.
Findings of Court:
The court held that although a specific notification establishing a buffer zone was pending, it does not absolve the project proponents from mandatory wildlife regulatory scrutiny. The court observed that religious practices, if integral to a community's faith, require protection, and public consultations must be inclusive and transparent. It determined that environmental and wildlife clearances are distinct, independent requirements that must be satisfied before full-scale project activity is permitted.
Issues: The main issues were whether the project violates mandatory clearance requirements from national wildlife authorities and whether it infringes upon the constitutional rights of the local community to practice and propagate their religion and culture.
Ratio Decidendi: The court established that the public trust doctrine renders the state a trustee of natural resources, mandating that development goals do not override ecological and religious sensitivity. The absence of a formal declaration of an eco-sensitive zone does not bypass the requirement to obtain expert clearances, and projects must strictly adhere to the precautionary principle to prevent irreversible ecological damage. Any investment in a project prior to obtaining such clearances is done at the sole risk and peril of the proponent.
Result: Petitions disposed of with a direction to the central regulatory authority to decide on the matters of ecological sensitive status and religious impact within a fixed timeframe.
| Table of Content |
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| 1. procedural background and jurisdictional transfer (Para 1 , 2 , 3 , 4 , 5) |
| 2. parties' contentions and preliminary objections (Para 6 , 8) |
Wangdi, J.
1. Writ Petition (C) Nos.22 and 23 of 2012 were originally filed before the Hon’ble Supreme Court being Writ Petition (C) Nos.101 and 102 of 2012 respectively. Vide order dated 08-05-2012 the Hon’ble Supreme Court was pleased to transfer them to this Court for disposal under Article 226 of the Constitution of India as various issues involved in the cases were of local nature. We may reproduce the said order of the Hon’ble Supreme Court which reads as under:-
“The question raised in these writ petitions under Article 32 of the Constitution should, in our view, be first considered by the Sikkim High Court under Article 226 of the Constitution. There are various issues involved which are local in nature and should be considered at that level.
Accordingly, let the writ petitions filed by Tenzing Bhutia and Another and Sonam Lama, which have been registered as Writ Petition (C) Nos. 101 and 102 of 2012, be transferred to the Sikkim High Court, to be treated as writ petitions under Article 226 of the Constitution.
The Registry is directed to arrange for transferring the records of the writ petitions to the Sikkim High Court, within a week from date.
Liberty is given to the petitioners in these writ petitions to mention the matter before the Sikkim High Court for taking up the matters at an early date.
The writ petitions are disposed of accordingly.”
2. In pursuance of the above, the cases were thus taken up by this Court and are being disposed of by this common judgment as the questions involved are identical.
3. The Petitioners are members of the Bhutia-Lepcha Community who are predominantly Buddhist by religion. They move the Writ Petitions seeking to assail the implementation of the 97 MW Tashiding -Hydro Electric Project (in short the “HEP”) set up by the Respondents on the river Rathong Chu, West Sikkim primarily on two grounds –
(i) Violation of the Petitioners’ fundamental rights under Articles 25 and 26 of the Constitution of India; and
(ii) Violation of the environmental laws.
4. The Respondent No.1 is the State of Sikkim in which the Petitioners reside and the State in which the Project is being implemented under a Memorandums of Understanding (in short the “MoU”) by the Respondent No.4 Company promoted by the Respondent No.5. Respondent No.2, is the Ministry of Environment and Forests, which gives clearances and ‘No Objection Certificates’ (in short the “NOCs”) to various power Projects after scrutiny under the relevant environment rules and regulations. Respondent No.3, is the National Board for Wild Life (in short the “NBWL”) constituted under Section 5A of the Wild Life (Protection) Act, 1972. Respondent No.4, Shiga Energy Private Limited is the Hydro Power Company set up as a Special Purpose Vehicles (SPV) to implement the Project in question. Respondent No.5, T. Nagendra Rao, is the Managing Director of Company called ‘Rangit Valley Hydro Private Limited’ and is the promoter of Respondent No.4 Company. Respondents No.7 and 8 are public financial institutions, which provide funding to power Projects and have been approached by the Respondents No.4 and 5.
5. It is relevant to note that out of the two Petitioners who had originally filed Writ Petition No.22 of 2012, the Petitioner No.1, Tenzing Bhutia, died during the pendency of the case and accordingly his name was struck off on being mentioned leaving the Petitioner No.2, Chewang Pintso Bhutia, as the sole Petitioner. The Respondents No.6, 9 and 10 being Rural Electrification Corporation India Limited, Power Trading Corporation of India and Punjab National Bank, respectively were deleted from the array of Respondents by order of this Court dated 23-09-2013 passed in CM Appl Nos.152 of 2012, 62 of 2012 and 153 of 2012 respectively.
6(i). The first ground taken in the Writ Petitions is that the reli
