Think about having to battle 4 authorized battles over 10 years for what’s yours even in keeping with the Indian Constitution. That is what has occurred within the case of the Kashang Integrated Hydro Electric project positioned within the district of Kinnaur in Himachal Pradesh.
Kinnaur is recognised as Schedule V (with particular rights) underneath the Structure, as a result of its inhabitants is predominantly comprised of forest-dwelling communities.
“We’re pissed off with this undertaking,” mentioned Bhagat Singh Kinnar, a resident of Rarang, an affected village within the district. Kinnar can also be the only petitioner in one of many authorized battles.
“Individuals have been shouting and screaming, operating to the courts and holding protests however this has had no influence… it looks as if the Himachal Pradesh Power Corporation [HPPCL] has the complete help of the [state] authorities and the paperwork,” he added.
HPPCL is a state-owned firm that’s executing the Kashang undertaking.
It was envisaged over a decade in the past as a run-of-the-river undertaking on the Kashang and Kerang tributaries of the Sutlej river. It goals to generate 243 megawatts (MW) of hydropower, of which solely Stage 1 (65 MW) has been commissioned. Stage II and III (130 MW in whole) and Stage IV (48 MW) are but to be constructed.
The Kashang undertaking is considered one of 4 HPPCL initiatives funded by a USD 800 million mortgage from the Asian Growth Financial institution.
The issue, Kinnar identified, is “as soon as work begins, it is extremely troublesome to cease it as a result of they [HPPCL] inform courts that they’ve already invested crores of rupees.”
Individuals from the district are protesting in opposition to the forest clearance granted to Stage II and III.
They’re entitled to forest rights underneath the Scheduled Tribes and Different Conventional Forest Dwellers (Recognition of Forest Rights) Act (FRA), 2006, however forest land has been diverted in violation of the FRA regulation to construct the hydropower undertaking.
The communities are additionally involved concerning the undertaking’s downstream impacts comparable to landslides and flooding, and the springs they rely upon for irrigation drying up.
Authorized debate
They’re extra anxious now, after a gathering of the Knowledgeable Appraisal Committee (EAC) in June 2020. The EAC met to deliberate a proposal by HPPCL to increase the environmental clearance (EC) granted to the Kashang undertaking in 2010.
The EC expired in April 2020 and HPPCL sought an eight-year extension, claiming “work on different levels [apart from State I] couldn’t be taken up on account of pending litigation by the native inhabitants within the NGT [National Green Tribunal].”
Ritwick Dutta, an environmental lawyer and founding father of the NGO Authorized Initiative for Forest and Setting (LIFE), instructed The Third Pole this argument is fake as a result of “the NGT by no means issued keep orders on this case”. “HPPCL misled the EAC by claiming that the delay [in construction] was due to litigation,” Dutta added.
However, the EAC dominated that the clearance granted a decade in the past is “perpetual”. It based mostly this on the truth that since all of the 4 levels are built-in, “the undertaking is handled as a single undertaking” whereby Stage 1 was accomplished and commissioned in 2016.
However others say this interpretation is absurd.
“All of the levels [of the project] will not be interdependent,” mentioned Manshi Asher, a researcher at Himdhara, a Himachal Pradesh-based environmental analysis and motion collective. “Stage II and III are on a special river [Kerang], the land that they want now, the river that they’re disrupting and the villages that may in the end be affected are totally different,” she famous, including that with the development of Stage II and III, “an entire new valley might be affected.”
“We have now seen the impacts of Stage I,” Asher mentioned referring to landslides and flooding. “These similar points will come up for Stage II and III and our [signatories to this petition to the EAC] demand is that Stage II and III shouldn’t be allowed to be constructed.”
Forest rights undermined
Individuals from Lippa, one other village in Kinnaur, are preventing a authorized battle in opposition to the forest clearance granted to Stage II and III of the Kashang undertaking by the Ministry of Setting, Forest and Local weather Change (MoEFCC) in 2011.
In keeping with guidelines and clarifications issued by the MoEFCC relating to the Forest (Conservation) Act (FCA), 1980, forest rights must be settled and a No Objection Certificates (NOC) must be obtained from the village council or gram sabha for forest clearance.
Moreover, on condition that Kinnaur is a Schedule V space, particular provisions just like the Panchayats (Extension to Scheduled Areas) Act, 1996 say that the consent of the gram sabha is important if native pure sources are to be diverted in the direction of ‘growth initiatives’.
HPPCL, nonetheless, didn’t get an NOC from the gram sabha. This was one of many predominant grounds on which the clearance was challenged within the NGT in 2011 by Paryavan Sanrakshan Sangarsh Samiti, an organisation fashioned by the villagers of Lippa. Different grounds embody issues relating to ecological fragility, dam security and influence on livelihoods and cultural rights.
HPPCL didn’t reply to queries despatched by The Third Pole on why, when a number of legal guidelines name for gram sabha consent, it has not been obtained.
Within the forest clearance case, the NGT dominated in 2016 that each the person and neighborhood forest rights must be settled and that each one socio-cultural impacts of the undertaking must be positioned earlier than the gram sabha.
After the NGT order, each particular person and neighborhood forest rights claims had been filed. “They rejected all [47] claims for particular person forest rights and the individuals have challenged the rejection within the Shimla Excessive Court docket,” mentioned Tashi Chewang, secretary of the forest rights committee for Lippa’s gram sabha.
The neighborhood forest rights had been accepted in August 2018, however “title [deeds] haven’t been given to the individuals but,” Chewang mentioned. Whereas the FRA processes had been underway, in October 2018 the Himachal Pradesh authorities issued orders for the diversion of land for Stage II and III.
“Not granting the title deeds raises questions… in the event that they verified the claims and located them to be satisfactory, why haven’t they issued deeds but?” Asher requested.
The Himachal Pradesh authorities additionally didn’t acquire consent from the gram sabha earlier than issuing orders for land diversion, which is obligatory in keeping with the Himachal Pradesh Lease Rules, 2013.
However Gopal Chand, deputy commissioner for Kinnaur, mentioned “we’re in full compliance of the NGT order and the [Himachal Pradesh] Lease Guidelines” and added that he sees “no violation”.
And so, within the fourth authorized battle taken on by native communities – the third being the case in opposition to the rejection of particular person forest rights – the lease granted to the Kashang undertaking was challenged within the Shimla Excessive Court docket in January, 2019.
Chewang is the only petitioner on this case. The matter is pending listening to.
Because the forest rights are but to be settled, the transfer by the Himachal Pradesh authorities to challenge orders for land diversion violates the NGT ruling, along with being a violation of the FRA and FCA.
“There’s no respect for the [FRA] regulation as a result of there’s no implementation,” Kinnar mentioned. “They make legal guidelines simply to idiot us.”
This story was printed with permission from The Third Pole.
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