Clearance for KASANG HEP under FRA is mandatory : NGT

Clearance for KASANG HEP under FRA is mandatory

Himalaya Niti Abhiyan opposes the stand of Himachal government and wrote to Rahul Gandhi on 6^th of September 2016. In response to our letter the Central leader ship of Congress promptly took this pro people positive stand.   Himalaya Niti Abhiyan welcomes and appreciates the stance of Mr. Rahul Gandhi Vice president of AICC and Bhagat Charan Dass Gen Secratary AICC for their quick response and hope that Congress Party will implement Forest Rights Act-2006 in the state in letter and spirit immediately.

Himachal Pradesh Power Corporation Ltd, a body of the Government of Himachal Pradesh has preferred an Appeal before the Supreme Court against NGT order of 4^th 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 HP government in this Appeal specifically stated: "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 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 that the FRA Act does not apply to the area, petitioners are miscreants and the people who have given NOC have changed their minds. The Appeal was listed for next hearing on 9th of September 2016.

HNA feel that the very statement “Gram Sabha consists of the unskilled local person” is deeply insulting to people at the grass roots, illegal and undemocratic.  Secondly rights recorded in forest and revenue settlements are concession provided by the states which are not justisable and are subject to the mercy of state; whereas rights recognized under FRA are legal rights and cannot be legally 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 supreme court. No one can 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 and visible. The environment and natural landscape has been protected for generations by these communities and their knowledge of the ecosystem; instead of recognizing their contribution to deprive them of their rights and then call them ignorant is adding insult to injury. 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.

Kashang Hydro Electric Project is project of HPPCL which has been funded by Asian Development Bank (ADB).  On 4th of May, 2016, the National Green Tribunal in the Appeal titled Paryavaran Sanrakshan Samithi Lippa versus Union of India [Appeal No 28 of 2013], allowed the Appeal, filed against the grant of Forest Clearance for the diversion of 17. 68 Hectares of Forest land for the 130 MW Kashang Integrated Hydro Electric Project in Kinnaur District of Himachal Pradesh. The NGT concluded that the MOEF granted final Forest Clearance without following the procedure stipulated in the Order dated 3-8-2009 issued by the MOEF which required strict compliance with the Forest Rights Act, 2006. Specifically, the Stage I forest Clearance required compliance with the order dated 3-8-2009 which required consent from the Gram Sabha. This was not done. The NGT therefore directed that:

“The entire proposal pertaining to Forest Clearance in respect to the 130 MW Kashang Hydro-electric project be placed before theGram Sabha of 19 villages of Gram panchayat Lippa, Rarang, Pangi and Telangi as prescribed under the Forest Rights Act, 2006.” The Gram Sabha shall consider all community and individual claims for the forest rights first in the light of FRA. The claims would include impact on places of worship, silt load in Kerang and Kashang stream and livelihood of the villagers. There should be a judicial officer present during the proceeding to ensure transparency. In conclusion, NGT order to submit report before the Tribunal after completion of the process.

 Judgment of the NGT:  

 http://www.greentribunal.gov.in/Writereaddata/Downloads/28-2013(PB-I-Judg)APL4-5-2016.pdf

This decision has been hailed as a landmark decision, since it is the first time that the NGT has relied on the FRA. In addition, the judgment is on the same lines as the Vedanta case Judgment dated 18-4-2013 of the Supreme Court in WRIT PETITION (CIVIL) NO. 180 OF 2011, Orissa Mining Corporation Versus Ministry of Environment & Forest & Others

It is important to point out that the in Schedule V Area where the forest is to be diverted, FRA and PESA is applicable and Gram Sabha has power to reject or accept the diversion proposal. In case of Kashang hydro electric project, Gram Sabhas had already passed resolutions of rejection and opposes the installation of the project.

Himalaya Niti Abhiyan opposes state government’s stand in SC, in which state had tried to refute forest rights of tribal people of Kinaur. The contentions posed in the appeal were against the letter and also spirit of the FRA.

 We wrote a letter with all above mentioned responses to Mr. Rahul Gandhi, Vice president of AlCC on 6^th September, 2016 and demanded to withdraw the said appeal immediately. Mr. Rahul Gandhi responded promptly and persuaded state government to withdraw the appeal filed against NGT orders which mandated FRA conditionality’s before any clearance to the project.  Finally new counsel appeared in Supreme Court on 7^th September and prayed that our contention is not to oppose FRA, hence Government of HP withdrew the appeal form SC.

-Himalaya Niti Abhiyan