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India: Appeal from Himalaya Niti Abhiyan regarding FRA and PESA for KASANG HEP Funded by ADB

14 September 2016

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Himalaya Niti Abhiyan

Village Khundan, PO Banjar, Distt. Kullu, HP

Email:gumanhna[at]gmail.com, Ph: 9418277220

Date:6th September, 2016

To

Mr. Rahul Gandhi,

Vice president AICC, New Delhi.

Subject: HP govt. opposes FRA and PESA for KASANG HEP Funded by ADB.

Respected sir,

In an alarming development, the Himachal Pradesh Power Corporation Ltd (a body of the Government of Himachal Pradesh) fore 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 has been heard on the 5th of September by a Bench headed by the Chief Justice. The Supreme Court had not any issue notice or stay the judgment of the NGT, but sought specific response from the Ministry of Environment and Forest.

  1. 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"
  2. 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.
  3. 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 on Friday on 9th of September 2016.

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 had 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, that FRA does not apply in the tribal area of Kinnour; whereas people are dependent on farming and belongs to traditional grassier Kinnoura 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 but they have shown high resistance against it.

In what could come as an embarrassment to the Congress Party 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 rights to ST and OTFD; whereas the Himachal Pradesh government has opposed the 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 forest rights act. 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 above said NGT decision in Supreme Court. 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. People of the state will be compelled to fight it out in court as well as in ground level and will not allow state government to hitch their forest rights.

The state government is trying to ignore Forest Rights Act since 2008 and pleaded time to time and again that forest rights has been settled since British periods in Himachal which is not correct and illegal. Former Chief Minister Mr. P K Dhumal wrote D.O. letter to MOEF in the year 2008 claiming the same that FRA do not apply in HP, because forest rights has been recorded during British period here. Former Minister of MoTA Mr. K.C Deo has written personal letter to Sh. Virbhader Singh in this regard and insisted to implement FRA. MOTA has replied to the state government time to time and again for the same and recently issued guidelines and FAQ too, whereas 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 Supreme Court.

This stand of HP Government will damage its image itself and dilute the pro FRA stand of the Congress Party at large.

We request you to intervene into the matter soon.

Guman Singh

Coordinator

Kulbhushan Upmanyu

Chairperson

R S Negi

Co-Chairperson

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