GANGTOK, 05 June: The division bench of the Sikkim High Court today referred the Tashiding Hydroelectric Project case to the Ministry of Environment & Forests for a final decision on the challenges posed against its implementation in a writ petition filed by Chewang Pintso Bhutia and Sonam Lama. Delivering its judgment today, the Division Bench recorded: “Considering the entire facts and peculiar circumstances of the case, we are of the considered opinion that in the interest of justice it will be appropriate and expedient if both the issues are referred to the MoEF, Respondent No.2, for a decision in order to take care of the anxiety which finds expression in paragraph 62 of the judgment in Orissa Mining Corporation Ltd. case (supra) reproduced above.”
The case was originally filed in the Supreme Court, which had marked it down to the High Court since it involved “various issues of local nature”. That was in 2012. The petitioners have demanded that the Tashiding HEP be assailed.
The petition demanded that the 97MW Tashiding HEP being developed on the Rathong Chu in West Sikkim be scrapped because, as per the petitioners, it was being implemented in “violation” of their fundamental rights under Articles 25 and 26 of the Constitution of India [covering freedom of religion]; and because it was also in violation of the environmental laws.
Even as the MoEF has been given a fixed deadline to decide on some specifics related to the case the Court has “withheld” itself from passing any order suspending the project in question. It does however make it clear that the implementation of the Project shall be at the “risk and peril” of the project developers and “shall be subject to the decision of the MoEF which it may take after issuance of the final notification”.
In the meanwhile, the Court has also left the door open for the State Government “to take such decision as may be advised unhindered by the proceedings before the MoEF being held by virtue of this order”.
The Ministry of Environment & Forests has been given six months to decide on the proposal of Eco-Sensitive Zone made by the State Government.
The judgment order records that the Court has given “anxious consideration” to the rival contentions made in the case.
The Court directed that “…the MoEF shall, in due compliance of the MoEF letter dated 27-05-2005, order of Supreme Court dated 04-12-2006 in Goa Foundation case (supra) so far as it is relevant to that letter, and MoEF Office Memorandum dated 02-12-2009 and other related letters, decide on the question of eco-sensitive zone in accordance with law and the procedure prescribed in that behalf within a period of six months from the date of this judgment after affording the parties opportunity of hearing on all aspects including the religious aspect raised by the Petitioners.”
The Division Bench headed by Chief Justice Narendra Kumar Jain and Justice SP Wangdi observed that “…There is no doubt of the fact that the Rathong Chu river is still in its pristine condition flowing through verdant green valley rich in biodiversity,” adding that not notifying a place as sacred by a State Government cannot be considered as a determining factor in deciding as to whether a place is sacred or not.
“It is the belief and faith of the people and the practice which is considered essential to the faith that would be relevant as a factor for such consideration. It has been accepted that religion, customs and tradition of the people form integral units of the entire biosphere, ecology and environment and, that man and nature make up an indivisible whole,” the judgment reads.
On violation of the religious and customary rights under Articles 25, 26 and 29 of the Constitution of India, the Division Bench observed that “weighty materials” have been placed on behalf of the Petitioners in proof of the sacredness of the Rathong Chu and the valley below Mount Khangchendzonga through which it flows. However, the bench withhold themelves from entering into except to issue appropriate directions to the extent and said that the issues raised in the Writ Petitions require serious consideration and cannot be ignored or brushed aside.
On the locus standii of the Petitioners and the argument that the Court should not interfere in economic and policy matters, the Court rejected both contentions of the state government and the hydel developers. The court said that the first objection of locus standi, the grievance expressed in the writ petitions pertains to an area considered sacred by the entire Buddhist Community of the state to which the petitioners belong and, therefore, place of residence would be of no relevance.
The second objection of impermissibility of this Court to interfere in economic and policy matters, the bench said the facts and circumstances of the case discussed would reveal that these objections also would be of no consequence as the questions involved in the case primarily are the violation of the requirement of obtaining NBWL clearance for the Project and defilement of the Rathong Chu river and the surrounding areas held sacred by the Buddhists due to the Project in question.
“We do not intend to interfere with any of the policies of the State Government notwithstanding the trite position that in the event of there being arbitrariness, unreasonableness, illegality and unconstitutionality in a policy decision of the Government, the Court have the necessary jurisdiction to interfere,” the Order highlights.
The case was originally filed in the Supreme Court, which had marked it down to the High Court since it involved “various issues of local nature”. That was in 2012. The petitioners have demanded that the Tashiding HEP be assailed.
The petition demanded that the 97MW Tashiding HEP being developed on the Rathong Chu in West Sikkim be scrapped because, as per the petitioners, it was being implemented in “violation” of their fundamental rights under Articles 25 and 26 of the Constitution of India [covering freedom of religion]; and because it was also in violation of the environmental laws.
Even as the MoEF has been given a fixed deadline to decide on some specifics related to the case the Court has “withheld” itself from passing any order suspending the project in question. It does however make it clear that the implementation of the Project shall be at the “risk and peril” of the project developers and “shall be subject to the decision of the MoEF which it may take after issuance of the final notification”.
In the meanwhile, the Court has also left the door open for the State Government “to take such decision as may be advised unhindered by the proceedings before the MoEF being held by virtue of this order”.
The Ministry of Environment & Forests has been given six months to decide on the proposal of Eco-Sensitive Zone made by the State Government.
The judgment order records that the Court has given “anxious consideration” to the rival contentions made in the case.
The Court directed that “…the MoEF shall, in due compliance of the MoEF letter dated 27-05-2005, order of Supreme Court dated 04-12-2006 in Goa Foundation case (supra) so far as it is relevant to that letter, and MoEF Office Memorandum dated 02-12-2009 and other related letters, decide on the question of eco-sensitive zone in accordance with law and the procedure prescribed in that behalf within a period of six months from the date of this judgment after affording the parties opportunity of hearing on all aspects including the religious aspect raised by the Petitioners.”
The Division Bench headed by Chief Justice Narendra Kumar Jain and Justice SP Wangdi observed that “…There is no doubt of the fact that the Rathong Chu river is still in its pristine condition flowing through verdant green valley rich in biodiversity,” adding that not notifying a place as sacred by a State Government cannot be considered as a determining factor in deciding as to whether a place is sacred or not.
“It is the belief and faith of the people and the practice which is considered essential to the faith that would be relevant as a factor for such consideration. It has been accepted that religion, customs and tradition of the people form integral units of the entire biosphere, ecology and environment and, that man and nature make up an indivisible whole,” the judgment reads.
On violation of the religious and customary rights under Articles 25, 26 and 29 of the Constitution of India, the Division Bench observed that “weighty materials” have been placed on behalf of the Petitioners in proof of the sacredness of the Rathong Chu and the valley below Mount Khangchendzonga through which it flows. However, the bench withhold themelves from entering into except to issue appropriate directions to the extent and said that the issues raised in the Writ Petitions require serious consideration and cannot be ignored or brushed aside.
On the locus standii of the Petitioners and the argument that the Court should not interfere in economic and policy matters, the Court rejected both contentions of the state government and the hydel developers. The court said that the first objection of locus standi, the grievance expressed in the writ petitions pertains to an area considered sacred by the entire Buddhist Community of the state to which the petitioners belong and, therefore, place of residence would be of no relevance.
The second objection of impermissibility of this Court to interfere in economic and policy matters, the bench said the facts and circumstances of the case discussed would reveal that these objections also would be of no consequence as the questions involved in the case primarily are the violation of the requirement of obtaining NBWL clearance for the Project and defilement of the Rathong Chu river and the surrounding areas held sacred by the Buddhists due to the Project in question.
“We do not intend to interfere with any of the policies of the State Government notwithstanding the trite position that in the event of there being arbitrariness, unreasonableness, illegality and unconstitutionality in a policy decision of the Government, the Court have the necessary jurisdiction to interfere,” the Order highlights.
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