By Guman Singh, Kulbhushan Upmanyu and RS Negi*
In an alarming development, the Himachal Pradesh Power Corporation Ltd, a body of the Government of Himachal Pradesh with the Chief Secretary of the Government of Himachal Pradesh as the Chairperson of the Board of Directors has preferred an Appeal before the Supreme Court against NGT order of 4th May 2016 in the matter of Kashang HEP. [Civil No 8345 Himachal Pradesh Power Corporation Ltd versus Paryavaran Sanrakshan Samiti, Lippa]. The Appeal was heard on the 5th of September by a Bench headed by the Chief Justice. The Supreme Court did not issue notice or stay the judgment of the NGT, but sought specific response from the Ministry of Environment and Forest.
The Appeal specifically states: “The Gram Sabha is the deciding body/ Authority to comply with the direction of the Ld Green Tribunal, Delhi but the Gram Sabha consists of the Unskilled local persons/ local residents. Hence, it is not possible for the State of H.P/ HPPCL to comply with the entire directions of the Ld National Green Tribunal.”
The Appeal by the HPPCL emphasizes that the NGT could not have passed the order since the rights of the people have already been settled/ recognized in 1921.
The Counsel for the State of Himachal Pradesh/ HPPCL stated before the Court as follows:
- That the FRA Act does not apply to the area.
- The Petitioners are miscreants.
- The people who have given NOC have changed their minds.
- The Appeal is listed for hearing this Friday i.e 9th of September.
Both these contentions posed in the appeal are against the letter and spirit of the FRA. The very statement Gram Sabha consist of the unskilled local person is insulting, illegal and undemocratic itself. Secondly rights recorded in forest and revenue settlements are concession provided by the states which are not justiciable and are subject to the mercy of state; whereas rights recognized under FRA are legal rights and cannot be denied. These can be only acquired by duly compensating under The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Land Acquisition Act, 2013). Ministry of Tribal Affairs has already issued instructions in this regards to the Himachal government in Dec. 2015.
The counsel of the Himachal state has stated misleading and derogatory statement before the court. No one cannot state, that FRA does not apply in the tribal area of kinaur; where people are depend on farming and belongs to traditional grassier Kinaura community. Their high dependence on forest land is obvious. If they stand for the protection of their livelihood rights and environment how they can be declared miscreants? Lastly no consent has been given by the gram sabhas of the area to this Kashang HEP under FRA and PESA provisions.
In what could come as an embarrassment to the Congress that has been accusing the ruling National Democratic Alliance (NDA) of “diluting” the Forest Rights Act (FRA). At the national level congress is organizing people movement against NDA and fighting for implementation of FRA and conferring righta to ST and OTFD; whereas the Himachal Pradesh government has opposed an order of the National Green Tribunal (NGT), which asked it to place a hydro-electric project proposal before the affected gram sabhas for approval under the tribal rights law. The Himachal government said the NGT order cannot be followed as the Gram Sabhas members are unskilled is against stand against its own people.
There is unease in the corporate sector over this decision by the National Green Tribunal and Himachal government had filled appeal against this NGT decision in Supreme Court.
Environment lawyer Ritwick Dutta, who fought the farmers’ case in court, counters this belief of corporate entities. “We have to move away from our idea of the gram sabha as illiterate people sitting under a banyan tree smoking hookah or plotting to derail development. People are aware of their needs and want development that empowers them, not alienate them from their land or forests,” he says.
In fact, around the world the “free and prior informed consent” (FPIC) of communities is being seen as a necessary tool for businesses. Even the World Bank has made it mandatory before implementing a project. That’s why corporate entities in India should see this verdict by the NGT and the precedent it sets as good for business.
People will of the state will fight it out in court as well as in ground level and will not allow to state government to hitch their forest rights. The state government is trying to ignore Forest Rights Act since 2008 and pleaded time and again that forest rights has been settled since British periods in Himachal which is no correct and legal. MOTA has replied to the state government time and again in this regards and recently issued guidelines and FAQ for the same. In a matter CWP No. 3141 of 2015 in HP High Court state government filled reply that FRA is in the process of implementation then how the counsel of the state government pleaded that FRA does not apply in the area.
Himalaya Niti Abhiyan condemns the stand of government of Himachal Pradesh in Supreme Court and demand immediate withdrawal of the filled appeal in the interest of People of Kinaur and in the light of law.
Background of the Kashang HEP Case
After a seven-year long struggle, a tribal village Kinour in Himachal Pradesh, has won the right to decide whether or not a hydel power project should be set up in its area. The empowerment came when rights of the villagers under the Forest Rights Act (FRA) were recognized following a judgment by the National Green Tribunal on 4 May 2016. Local has been simultaneously sending representations to government, organized demonstrations, public rallies at Akpa and Recong Pio (district headquarter) many times against this HEP.
In fact the project lies in the region of Trance Himalayan desert where any physical disturbance in steep slopes and increase in temperature would cause precipitation resulting in natural calamities like heavy landslides.
This case has highlighted the plight of local farmers of Lipa village of losing irrigation channels, destruction of farm and forest land due to land slid and the submergence of pine nut trees (Chilgoza) due to construction of the hydel project. The place is situated above the altitude of 8000 feet and is geologically highly fragile and come under seismic Zone 5. The project lies on the Chilgoza pine belt, the very existence of the species which is already endangered, will be under threat thereby jeopardizing the livelihood of the community which heavily depends on the tree for their sustenance. Very existence of Lippa village will be in danger due to the diversion of Kerang stream will prevent the huge loads of silt flowing from the Pager stream near the village threatening the safety of the villagers.
Secondly forest clearance had been granted in contravention of Forest Rights Act-2006 (FRA) and Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) under which Gram Sabha consent is prior condition.
The NGT has directed the government to ensure that prior to forest clearance to the Kashang Integrated Hydroelectric Project, the proposal is placed before the affected four gram sabha i.e., Lipa (comprising all adults above 18 years of age) of villages in Kinnaur district.
The Integrated Kashang Project proposed by the Himachal Pradesh Power Corporation Limited, funded by Asian Development Bank (ADB) with installed capacity of 243 MW has four stages that harnesses the Kashang river generating 195 MW from the power house installed for the river and 48 MW from the Kerang stream from the power house installed on its right bank.
The project consisting of four stages with the total installed capacity of 243 MW for which a single Environment Clearance shall had been granted for all the stages, however, the project proponent was applying for forest clearance separately for each of the stages. By adopting such piecemeal approach the project proponent was projecting low area of forest and thus was misleading. In the present case involving Stages II and III of the project, the 5 justification sought to be given was that it was limited only to 17.6857 hectares when actually it was 61.89 hectares that was required to complete all the four stages and 57 hectares just for laying transmission lines. Whereas HP Forest Department accorded sanction for diversion of 17.6857 hectares of forest land on dated 22.03.2013 without compliance of the conditions of FRA and PESA.
Based on the above, the appellant NGT seeks to quash the Forest Clearance granted by order dated 15.01.2013 passed by the Department of Forest, Government of Himachal Pradesh and orders dated 22.03.2011 and 14.06.2011 passed by the Ministry of Environment and Forest granting stage I of Forest Clearance and final approval for diversion of 17.6857 hectares of forest land respectively for construction of 130 MW Integrated Kashang Stages II and III Hydro Electric Project in favour of M/S Himachal Pradesh Power Corporation Limited in Kinnaur District of Himachal Pradesh.
NGT ordered that Forest Clearance in respect of Stages II and III of 130 MW Kashang Integrated Hydro Electric Project is placed before the Gram Sabha of 19 villages Lippa, Rarang, Pangi and Telangi in Kinnaur District of Himachal Pradesh as prescribed under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.; the Gram Sabha shall consider all community and individual claims which would bring within its ambit religious as well as cultural claims which would include impact on places of worship likely to be affected by the construction works and activities cognate thereto; Silt load in Kerang Stream caused by the diversion of water from the Kerang stream to Kashang stream and the livelihood of the villagers caused by loss of forest land, landslides and possible loss of water sources due to the project.
The Gram Sabha shall take up with the project proponent mitigation measures to offset the adverse impact of the project. While conducting the proceedings, the Gram Sabha shall, so far as it is possible, follow the process, guidelines and the procedure prescribed by the Ministry of Environment and Forests in its various letters from time to time. In order to ensure transparency and confidence of the villagers in the proceedings, the presence of a Judicial Officer of the rank of District Judge or such other Judicial Officer of the same rank be requested. It shall be ensured that the entire proceeding is completed in not later than three months from the date of commencement of the proceeding before the Gram Sabha. On completion of the proceedings to the satisfaction of all, shall submit a report before this Tribunal by way an affidavit duly sworn by competent Officers.
This is not the first time that courts have empowered the gram sabha to take decisions. In a landmark judgment in 2013, the Supreme Court directed that the smallest units of local governance use their powers and take a decision on whether the Vedanta Group’s $1.7 billion bauxite mining project in Odisha’s Niyamgiri Hills should go forward.
*Himalaya Niti Abhiyan