JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER)

1. Heard the learned Counsel for the parties and perused the documents on record.

2. This Original Application has been filed with the allegation that the laying of railway line and construction of station in the Sevok-Rangpo rail line is passing through the villages, viz., Melli, Tarkhola, Kirney Bahlukhop forest villages and the User Agency has commenced the project without obtaining consent from the Gram Sabha as required under the provisions of the Forest Rights Act, 2006 & Forest Conservation Act, 1980.

3. It is also alleged that the Sevok-Rangpo Railway Project has been commenced only with Stage-1 clearance and the entire project has been split into multiple parts and that the railway line for a stretch of 5 (Five) kilometers passes through Tarkhola Forest Village where construction of Tunnel and rail line is proposed for a stretch of 1(one) kilometer and the Kirney Bhalukhop Forest Village will be used for construction of the tunnel and rail line beneath the forest village for a stretch of 6(six) kilometers.

4. Notices were issued and counter-affidavits have been filed by the Respondents.

5. When the case was taken up for hearing, on 7th July, 2022, no one was present for the Applicant either in physical or in virtual mode. Mr. Sibojyoti Chakraborty, learned Counsel for the State Respondents informed that he has been requested by Ms. Sayanti Sengupta to seek an adjournment on her behalf that she may also be granted two weeks further time for filing rejoinder affidavit. We find that the Applicant was granted time to file counter-affidavit vide our order dated 14th March, 2022 till the next date of listing.

6. Thereafter again on 10.05.2022, the learned counsel for the Applicant prayed for and was granted two weeks time for filing rejoinder affidavit. We regret to say that though almost four months have passed but till date the rejoinder affidavit has not been filed and instead an adjournment is being sought and further time is being sought for filing rejoinder affidavit. Since the case was listed for hearing we declined either to grant any adjournment or grant any further time to the Applicant for filing rejoinder affidavit.

7. We have heard the learned Counsel for the respondents and perused the counter-affidavits which have been filed.

8. The Applicant is seeking quashing of Stage-1 clearance granted vide Letter dated 28.08.2017, 31.07.2020 and 07.09.2020 as also notification dated 5th February 2013, 5th July 2013 and 13th July 2021.

9. The case of the Applicant is that the Sevok-Rangpo Railway Project has been illegally split into Five segments, namely:-

(a) That Stage-I clearance has been accorded for the proposal dated 28.11.2017 for diversion of 86.6255 hectares of forest land for construction of Main tunnels, Bridges, Access Road to Tunnel portals and dumping of muck excavated from Tunnels and other ancillary purposes related to the Project Work.

(b) It is alleged that Stage-I clearance has been accorded to the proposal dated 02.07.2016 for diversion of 0.9294 hectares of forest land for ancillary work T4 Adit.

(c) It is alleged that the proposal dated 17.06.2019 has been submitted for diversion of 12.3786 hectares for construction of Adits/Escape Tunnels from the main tunnels. It is alleged that this Part of the proposal falls within Mahananda Wildlife Sanctuary measuring 1.5278 hectares for which wildlife clearance is required.

(d) The Proposal dated 09.05.2020 has been submitted for diversion of 0.5089 hectares from the Kurseong Forest Division for an alternate access road from NH10-T3P1.

(e) It is alleged that Proposal dated 18.07.2020 is for diversion of 10.8186 hectares of forest land (10.2086 hectares in Kalimpong Forest Division and 0.610 hectares of forest land).

10. It is also alleged that the Nodal Officer returned the proposal on 27.07.2020 with the comment to amalgamate the proposal dated 09.05.2020 with the proposal dated 18th July, 2020 and in compliance thereof the Project Proponent submitted a fresh combined proposal with the break up (0.5089 Hectares+ 10.8186 Hectares+ 2.8145 hectares for new additional area). Thus the new proposal contained a proposal for total of 13.512 hectares of forest land (0.5089 in Kurseong Division, 2.7945 hectares in Darjeeling Forest division and 10.2086 hectares in Kalimpong Forest Division.

11. It is alleged that fragmentation of the Project into 5 (Five) segments depicts ill-planned intrusion of developmental projects into natural habitats thereby imposing serious threats to long term biodiversity conservation. It is alleged that in the process the User Agency/Respondent No.7 has suppressed the material facts while submitting its project proposal with the intent of acquiring huge forest area for making profit at the cost of forest, environment, wildlife and natural habitat.

a) The 5 (Five) Stage-I clearances with which the Applicant is aggrieved is dated 28th November 2017 for diversion on 86.6255 hectares ( 18.604 hectares in Darjeeling Forest Division + 12.436 hectares hectares in Kurseong Forest Division + 8.849 hectares in Wildlife (I) Division + 46.829 hectares under Kalimpong Forest Division) of forest land in favour of the North Frontier Railway, Jalpaiguri for construction of Sevok-Rangpo New Broad Gauge Railway Line.

b) The State-I clearance dated 31st July 2020 is for diversion of 0.9294 hectares of forest land in favour of North-East Frontier Railway for construction of T-4 Adit portal and access road in connection with Sivok-Rangpo new Broad Gauge Line under Kurseong Forest division.

c) State-I clearance dated 07.09.2020 is for diversion of 12.3786 hectares of forest land in favour of the North Eastern Frontier Railways for construction of Adits in connection with Sivok-Rangpo New Broad Gauge line under under Darjeeling, Darjeeling (wildlife) and Kalimpong forest division.

d) Stage-I clearance dated 13th July 2021 is for diversion of 13.512 hectares (2.7945 hectares under Darjeeling Forest Division + 0.5089 hectares under Kalimpong Forest Division + 10.2086 hectares under Kalimpong Forest Division) of forest land in favour of North East Frontier Railway for construction of approach roads for muck disposal and staff in connection with Sevok-Rangpo Broad Gauge Line.

12. The Respondent No.5, Department of Forest, Government of West Bengal has filed affidavit dated 12.12.2021, denying the allegations made in the Original Application. It is stated that the North Eastern Frontier Railways submitted proposal for diverstion of Forest land for non-forestry purpose viz., for construction of Sevok-Rangpo New Broad Gauge line under the provisions of the Forest Conservation Act, 1980 (hereinafter referred to as (‘the Act, 1980’) in four different phases along with area and various permissions and Stage-I clearances have been granted which is given in a tabulated form filed as “Annexure-R/5-7” to the affidavit which is reproduced herein under:-

13. It is also stated that the learned Counsel for the State Respondents submitted that this project is of immense importance as it has strategic defence importance as it will go up to Nathu-la Pass near Indo-China Border in subsequent phases and will bring the State of Sikkim for the first time on the rail map of India through West Bengal. It is also stated that the Project Proponent submitted the proposals in four phases routed through the MoEF & CC and Government of India as per the provisions of the Forest Conservation Act, 1980 and the relevant guidelines made therein.

14. Reference has also been made to Para-11.2 of Chapter-II of Handbook of Guidelines issued under the Forest Conservation Act, 1980 vide MoEF and CC’s letter dated 28.03.2019, for facilitating speedy execution involving linear diversion and In-principle approval may be deemed as working permission for tree-felling and commencement of work, if required funds for Compensatory Afforestation (CA), Net Present Value (NPA) and all other compensatory levies specified in the In-principle approval are realized from the User Agency. Accordingly, on fulfillment of the above stipulated conditions i.e., realization of compensatory levies, the State Government issued working permission involving Northern Frontier Railway against the above said four project proposals on 11.09.2018 (phase-I; 86.6255 hectares), 24.08.2020 (phase-II; 0.9294 hectares), 02.03.2021 & 30.07.2021 (phase-III; 12.3786 hectares) and 30.07.2021 (phase-IV; 13.512 hectares).

15. It is also stated that comprehensive Wildlife Conservation Plan and Comprehensive Soil & Moisture Conservation Plan, have been prepared by the User Agency in consultation with the West Bengal Forest Department, as integrated documents for all the four said FCA proposals.

16. It is also stated that the User Agency has made payments for implementation of the plan documents as per time schedule mentioned therein and the relevant documents to that effect have been filed as “Annexure-R/5-2”

17. The case of the State Respondents further is that Stage-I/ Inprinciple approval was granted on 28.11.2017 for 86.6255 hectares as this was the main project and the latter three were ancillary projects and the process of obtaining Forest Rights Act [Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006] clearance was initiated on 21.04.2014 while the initial Forest Rights Act (FRA) Certificate was received from the District Magistrate, Darjeeling on 27.11.2014 which, however, was objected to by the Ministry of Tribal Affairs, Government of India on technical grounds and, therefore, later on revised FRA certificates were issued by the District Magistrate, Darjeeling and Kalimpong on 30.01.2020 and 28.01.2020 respectively. It is also stated that this Phase-I (86.6255 hectares) of the project is being processed for Stage-II/Final approval, after submission of the compliance report as regards Stage-I approval conditions by the User Agency.

18. It is also stated that as per Forest Rights Act (FRA) certificate issued by the District Magistrate, Kalimpong, to the 11 Forest villages, namely, Bhalukhop, Kirney, Mangwa Geilkhola, Mangwa Baluwakhani, Mangwa Teen Block, Tarkhola, Mangchu 10th mile, Mangchu 11th mile, Mangchu 12th mile, Rangpo and Mamkhola, through which the railway Line passes does not infringe the rights as conferred under Section 3(i) of Forest Rights Act, 2006 and it is also stated that Stage-I approval of Project Phase-II (0.9294 hectares) and Project Phase-IV (13.512 hectares) was accorded on 31.07.2020 and 13.07.2021. The latter three phases of the project are ancillary to the first and the main proposal for forest land diversion i.e., of 86.6255 hectares which covers the entire stretch of 41.60 kilometres of running length of the proposed rail track.

19. The Respondents have explained that the items of work covered in the latter three ancillary forest land diversion proposals include audits (in rescue operations in case of any eventuality), staff quarters, dumping ground, approach road etc., which are complementary to the items of work executed in the main project of (86.6255 hectares) of North Frontier Railways viz, earth cutting, making of tunnels (13 numbers in West Bengal) and bridges etc., and all these are main components of the main proposal. Accordingly, these four phases of forest diversion proposals submitted by NF Railways, have been dealt with in an integrated manner in terms of the Comprehensive Wildlife Conservation Plan and Comprehensive Soil & Moisture Conservation Plan prepared by the User Agency in consultation with the West Bengal Forest Department for purposes of FCA proposals. It is stated that the User Agency has also made payments for implementation of the plan within the time schedule given thereof.

20. It is also stated that the User Agency has submitted compliance report in respect of Stage-I approval accorded by MoEF & CC on 09.09.2021 which is currently under examination by the Integrated Regional Office of MoEF & CC and only if found suitable, Stage-II clearance/Final FCA clearance will be granted. As regards the National Board for Wildlife (NBWL for short) clearance for 1.5278 hectares of forest land in Mahananda Wildlife Sanctuary is concerned, it is stated that Stage-I In-principle approval for PhaseIII was first accorded by the MoEF & CC, Government of India on 07.09.2020 for the entire 12.3786 hectares of forest land proposed to be diverted subject to clearance from the National Board for Wildlife. So far as 10.8508 hectares of forest land outside Mahananda Wildlife Sanctuary is concerned, Stage-I In-principle approval has been granted by the MoEF and CC on 13.11.2020 subject to realization of corresponding compensatory levies from the User Agencies and accordingly Work Permission was issued on 02.03.2021. So far as the balance 1.5278 hectares of forest land in the Mahananda Wildlife Sanctuary is concerned, the same was decoupled from the rest of the area and made subject to clearance from the National Board of Wildlife. The National Board for Wildlife granted clearance which was communicated on 10.05.2021 whereafter on fulfilling the requisite conditions, the State Government issued working permission in favour of User Agency (North Frontier Railways) over 1.5278 hectares of forest land in the Mahananda Wildlife Sanctuary on 30.07.2021.

21. It is stated that other than the 11 forest villages, namely, Bhalukhop, Kirney, Mangwa Geilkhola, Mangwa Baluwakhani, Mangwa Teen Block, Tarkhola, Mangchu 10th Mile, Mangchu 11th mile, Mangchu 12th mile, Rangpo and Mamkhola through which the railway line passes does not infringe the rights conferred under Section 3 (i) of Forest Rights Act, 2006. It is further stated that only 30(Thirty) households are likely to be affected under the Project, of which 26(Twenty-six) affected households are in Melli. No documentary evidence has been produced through the said Gram Sabha of these Forest Villages to show that the claimants or their forefathers have been residing at these Forest Villages for more than three generations or more than 75 years as on 13th December, 2005 for consideration of claims as Forest Rights Act, 2006. The present status indicates that the Railways has paid- (i) compensation for Land and Houses amounting to Rs.2.22 crores deposited with the State Government in October, 2014. (ii) 7(seven) families have received 100% compensation amount and vacated the Forest land. (iii) 50% compensation amount has been taken by 15 families but not yet vacated the land. (iv) 4 (four) families have not yet accepted the compensation amount nor vacated the land. The District Magistrate Kalimpong has also filed his affidavit dated 11.12.2021 stating therein that the Sivok-Rangpo Railway Project only directly affects Melli Forest Village and the Gram Sabha Melli Forest Village has resolved on 21.01.2020 that it does not have objection against any developmental work including that of railway project whereas the other forest villages namely Tarkhola, Kirney, Bhalukhop through which the railway line passes does not infringe the rights conferred under Section 3(i) of the Forest Rights Act, 2006.

22. It is also stated that all 64 forest villages in Kalimpong District including Melli, Tarkhola, Kirney, and Bhalukhip, forest villages which fall along the stretch of Vivok Rangpo railway project have been converted into revenue village vide gazette notification dated 18.09.2020, of the Land and Land Reforms Refugee Relief & Rehabilitation Department, Government of West Bengal.

23. It is also stated that NOC dated 28.01.2020 has been issued for diversion of 46.82 hectares of forest land under Kalimpong forest division for the Sivok-Rangpo Rail Project in favour of the North East Frontier Railway, New Jalpaiguri for construction of Broad Gauge Railway line. It is also stated the whole settlement of Tarkhola forest village is situated at a distance of two kilometers and that of the Kirney, Bhalukhop forest village at a distance of 500 metres from the proposed Sivok-Rangpo alignment.

24. In this view of the matter the question of the surface (Top Soil) of these villages being affected would not arise and as already stated herein earlier only 30 households are likely to be affected under the project of which 26 affected households are in Melli for which the Gram Sabha has already given NOC through their resolution dated 21.01.2020.

25. The MoEF & CC in its affidavit dated 28.02.2020 apart from reiterating the facts which have already been narrated in the affidavit of the Department of Forest, State of West Bengal has further stated that regarding some of the areas of proposed Project which fell under the Mahananda Wildlife Sanctuary the Project was submitted to the National Board of Wildlife and the proposal was considered in the 34th Meeting of the Standing Committee of National Board for Wildlife held on 2nd June, 2015 and the Project was recommended by the Committee as per the “Annexure-R-1/3” dated 30.06.2015.

26. The Ministry of Tribal Affairs, Government of India, has also filed its affidavit dated 10th March, 2022.

27. The North Frontier Railway, Respondent No.3 and 7, have filed their affidavit; raising technical objection that the reliefs claimed in the O.A. are not maintainable and the orders can only be challenged through an appeal filed under Section 16, in addition to certain factual aspects which have already been dealt with in the previous affidavits of the State Government.

28. The Respondent No.9, IRCON International Limited has also filed an affidavit raising a preliminary objection that the Original Application is not maintainable, in addition to certain factual aspects which have been already been dealt with in the earlier affidavits of the State Government.

29. Having gone through the documents on record, we find that there is no illegality in the proposal for Sivok-Rangpo Rail Line, Broad Gauge Rail Line being submitted in different project phases; the main project Phase-I being (86.6255 hectares) but as stated by the Respondents, the later three ancillary forest land diversion proposals which include audits for rescue operations in case of any eventuality, staff quarters, dumping ground, approach road, etc., which are complementary to the items of work executed in the main project of 86.6655 hectares of North Frontier Railway , making of tunnels and project etc., are all part of the main components of the first and main proposal and all these proposals for forest land diversion have been dealt with under the Comprehensive Wildlife Conservation Plan, Comprehensive Soil and Moisture Conservation Plan, which have been prepared by the User Agency in consultation with the West Bengal Forest Department in an integrated manner. We further find that not only forest clearance has been granted but also so far as the length of railway line passing through the Mahananda Wildlife Sanctuary to the extent of 1.5278 hectares is concerned, the same has been granted clearance by the National Board of Wildlife (NBWL) communicated on 10.05.2021 and working permission over this land in favour of North Frontier Railway has been accorded by the State Government on 30.07.2021. We also do not find any illegality with regard to alleged violation of Forest Rights Act, 2006, in as much as in respect of the 11(eleven) forest villages through which Railway Line passes, it has been categorically stated that the said railway line does not infringe any of the rights of these villagers.

30. So far as the Melli Yard through which the Railway line passes, it has been already explained that compensation for land and houses has been paid by the Railways, 7 (Seven) families have received 100 per cent compensation and vacated the forest land; 50 per cent compensation has been taken by the 15 (fifteen) families who have not yet vacated the land and 4 (four) families have not yet accepted the compensation amount nor vacated the land, total 26(Twenty-Six) houses in all in the proposed Melli Yard.

31. For reasons aforesaid, we find no merit in the present Original Application and the same is accordingly dismissed.

32. There shall be no order as to costs.