Imagine having to fight four legal battles over 10 years for what is yours even according to the Indian Constitution. This is what has happened in the case of the Kashang Integrated Hydro Electric project located in the district of Kinnaur in Himachal Pradesh.
Kinnaur is recognised as Schedule V (with special rights) under the Constitution, because its population is predominantly comprised of forest-dwelling communities.
“We are frustrated with this project,” said Bhagat Singh Kinnar, a resident of Rarang, an affected village in the district. Kinnar is also the sole petitioner in one of the legal battles.
“People have been shouting and screaming, running to the courts and holding protests but this has had no impact… it seems like the Himachal Pradesh Power Corporation [HPPCL] has the full support of the [state] government and the bureaucracy,” he added.
HPPCL is a state-owned company that is executing the Kashang project.
It was envisaged over a decade ago as a run-of-the-river project on the Kashang and Kerang tributaries of the Sutlej river. It aims to generate 243 megawatts (MW) of hydropower, of which only Stage 1 (65 MW) has been commissioned. Stage II and III (130 MW in total) and Stage IV (48 MW) are yet to be constructed.
The Kashang project is one of four HPPCL projects funded by a USD 800 million loan from the Asian Development Bank.
The problem, Kinnar pointed out, is “once work starts, it is very difficult to stop it because they [HPPCL] tell courts that they have already invested crores of rupees.”
People from the district are protesting against the forest clearance granted to Stage II and III.
They are entitled to forest rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (FRA), 2006, but forest land has been diverted in violation of the FRA law to build the hydropower project.
The communities are also concerned about the project’s downstream impacts such as landslides and flooding, and the springs they depend on for irrigation drying up.
They are more worried now, after a meeting of the Expert Appraisal Committee (EAC) in June 2020. The EAC met to deliberate a proposal by HPPCL to extend the environmental clearance (EC) granted to the Kashang project in 2010.
The EC expired in April 2020 and HPPCL sought an eight-year extension, claiming “work on other stages [apart from State I] could not be taken up due to pending litigation by the local inhabitants in the NGT [National Green Tribunal].”
Ritwick Dutta, an environmental lawyer and founder of the NGO Legal Initiative for Forest and Environment (LIFE), told The Third Pole this argument is false because “the NGT never issued stay orders in this case”. “HPPCL misled the EAC by claiming that the delay [in construction] was because of litigation,” Dutta added.
Nevertheless, the EAC ruled that the clearance granted a decade ago is “perpetual”. It based this on the fact that since all the four stages are integrated, “the project is treated as a single project” wherein Stage 1 was completed and commissioned in 2016.
But others say this interpretation is absurd.
“All the stages [of the project] are not interdependent,” said Manshi Asher, a researcher at Himdhara, a Himachal Pradesh-based environmental research and action collective. “Stage II and III are on a different river [Kerang], the land that they need now, the river that they are disrupting and the villages that will ultimately be affected are different,” she noted, adding that with the construction of Stage II and III, “a whole new valley will be affected.”
“We have seen the impacts of Stage I,” Asher said referring to landslides and flooding. “These same issues will come up for Stage II and III and our [signatories to this petition to the EAC] demand is that Stage II and III should not be allowed to be built.”
Forest rights undermined
People from Lippa, another village in Kinnaur, are fighting a legal battle against the forest clearance granted to Stage II and III of the Kashang project by the Ministry of Environment, Forest and Climate Change (MoEFCC) in 2011.
According to guidelines and clarifications issued by the MoEFCC regarding the Forest (Conservation) Act (FCA), 1980, forest rights have to be settled and a No Objection Certificate (NOC) has to be obtained from the village council or gram sabha for forest clearance.
Additionally, given that Kinnaur is a Schedule V area, special provisions like the Panchayats (Extension to Scheduled Areas) Act, 1996 say that the consent of the gram sabha is necessary if local natural resources are to be diverted towards ‘development projects’.
HPPCL, however, did not get an NOC from the gram sabha. This was one of the main grounds on which the clearance was challenged in the NGT in 2011 by Paryavan Sanrakshan Sangarsh Samiti, an organisation formed by the villagers of Lippa. Other grounds include concerns regarding ecological fragility, dam safety and impact on livelihoods and cultural rights.
HPPCL did not respond to queries sent by The Third Pole on why, when multiple laws call for gram sabha consent, it has not been obtained.
In the forest clearance case, the NGT ruled in 2016 that both the individual and community forest rights have to be settled and that all socio-cultural impacts of the project have to be placed before the gram sabha.
After the NGT order, both individual and community forest rights claims were filed. “They rejected all  claims for individual forest rights and the people have challenged the rejection in the Shimla High Court,” said Tashi Chewang, secretary of the forest rights committee for Lippa’s gram sabha.
The community forest rights were approved in August 2018, but “title [deeds] have not been given to the people yet,” Chewang said. While the FRA processes were underway, in October 2018 the Himachal Pradesh government issued orders for the diversion of land for Stage II and III.
“Not granting the title deeds raises questions… if they verified the claims and found them to be adequate, why haven’t they issued deeds yet?” Asher asked.
The Himachal Pradesh government also did not obtain consent from the gram sabha before issuing orders for land diversion, which is mandatory according to the Himachal Pradesh Lease Rules, 2013.
But Gopal Chand, deputy commissioner for Kinnaur, said “we are in full compliance of the NGT order and the [Himachal Pradesh] Lease Rules” and added that he sees “no violation”.
And so, in the fourth legal battle taken on by local communities – the third being the case against the rejection of individual forest rights – the lease granted to the Kashang project was challenged in the Shimla High Court in January, 2019.
Chewang is the sole petitioner in this case. The matter is pending hearing.
Since the forest rights are yet to be settled, the move by the Himachal Pradesh government to issue orders for land diversion violates the NGT ruling, in addition to being a violation of the FRA and FCA.
“There’s no respect for the [FRA] law because there’s no implementation,” Kinnar said. “They make laws just to fool us.”
This story was published with permission from The Third Pole.
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