Khushal Singh and Ors vs State of H.P.

Khushal Singh and other residents of village Surah, Tehsil Thunag, District Mandi, Himachal Pradesh have sent the present letter petition, which has been treated and registered as Original Application, complaining about unauthorized conversion and allotment of 0.5655 hectare of Forest land for installation of 1.5 MW Micro Hydro-electric power project in village Surah Tehsil Thunag District Mandi in Himachal Pradesh. The company is alleged to have obtained FRA certificate illegally and deceitfully by putting forged signatures of the villagers. It is further alleged that complaint was made to the concerned authorities in this regard but no action has been taken. The company has applied for additional forest land to Sub-Divisional Magistrate, Thunag, Mandi who has without jurisdiction ordered for identification of forest land. The Company is putting the life of the villagers in danger as well as polluting the environment by carrying explosive woks without permission and necessary infrastructure.

Vide order dated 15.07.2022, this Tribunal constituted a Joint Committee comprising of the State PCB, Principal Chief Conservator of Forests, State of Himachal Pradesh and Deputy Commissioner, Mandi and directed the same to submit factual and action taken report within two months.

The report of the Joint Committee has been filed by Mr. Apoorv Devgan, IAS, Member Secretary, HSPCB vide letter dated 07.10.2022 through email dated 07.10.2022. The relevant part of the report of the Joint Committee is reproduce below:-

“JOINT INSPECTION CUM ACTION TAKEN REPORT OF THE COMMITTEE CONSTITUTED VIDE HON’BLE NGT ORDERS DATED 15.07.2022 IN O.A. NO. 428/2022 TITLED AS KHUSHAL SINGH & OTHERS VS STATE OF H.P & OTHERS.

BACK GROUND

A complaint was admitted in the Hon’ble NGT as O.A. No. 428/2022 titled as Khushal Singh & Others vs State of HP &Others w.r.t to a small hydro electric power project inVillage Surah, Tehsil Thunag, District Mandi, Himachal Pradesh-

“1. Khushal Singh and other residents of Village Surah, Tehsil Thunag, District Mandi, Himachal Pradesh have sent the present letter petition, which has been treated and registered as Original Application, complaining about unauthorized conversion and allotment of 0.5655 hectare of Forest land for installation of 1.5 MW Micro Hydro-electric power project in village Surah Tehsil Thunag District Mandi in Himachal Pradesh. The company is alleged to have obtained FRA certificate illegally and deceitfully by putting forged signatures of the villagers. It is further alleged that complaint was made to the concerned authorities in this regard but no action has been taken. The company has applied for additional forest land to Sub-Divisional Magistrate, Thunag, Mandi who has without jurisdiction ordered for identification of forest land. The Company is putting the life of the villagers in danger as well as polluting the environment by carrying explosive woks without permission and necessary infrastructure”

As per the directions passed by the Hon’ble National Green Tribunal in the said orders -

“ 2. In view of the averments made in the application, it would be appropriate to have a factual and action taken report from a Joint Committee comprising of State PCB, Principal Chief Conservator of Forests, State of Himachal Pradesh and Deputy Commissioner, Mandi. Joint Committee shall meet within four weeks, undertake site visits, look into the grievances of the applicant, verify the factual position and take requisite remedial action by following due process of law. State PCB will be the Nodal agency for coordination and compliance.”

In compliance to the orders of the Hon’ble National Green Tribunal, the said committee carried out site visit in order to look into the grievances of the applicant and verify the factual position on ground.The details of the same are as below –

JOINT INSPECTION OF THE COMMITTEE

The Joint inspection of the Small Hydro Electric Project Site and the surrounding area was carried out by the Committee on 12.08.2022 at 11:00 AM. The following Committee members and the Co-opted officials of various departments were present during the visit of the Committee:

The Deputy Commissioner Mandi, Distt. Mandi H.P.

The Additional District Magistrate, Mandi, Distt. Mandi H.P.

The Sub-Divisional Officer (C) Thunag, Tehsil Thunag, Distt. Mandi

The Executive Engineer, HPPWD Seraj at Janjehli, Distt. Mandi

The Executive Engineer, Jal Shakti Vibhag, Thunag, Distt. Mandi

The Assistant Engineer, HPPWD Sub-Division Bagsiad, Distt. Mandi.

The Assistant Engineer, Jal Shakti Vibhag Kelodhar, Distt. Mandi.

Pradhan, Gram Panchayat Surah, Distt. Mandi H.P.

DeputyRanger, B.O. Bagsiad,Forest Division Nachan, Distt. Mandi.

The Environmental Engineer, HP State Pollution Control Board Mandi, Distt. Mandi H.P.

The applicant was also contacted and requested to associate the Joint inspection committee but he could not attended the same due to some medical emergency.

GEOGRAPHICAL LOCATION OF THE HEP (HYDRO ELECTRIC PROJECT)

The HEP is located at Village Surah, Tehsil Thunag, Distt. Mandi. (Latitude: 31°35'56.4"N, Longitude: 77°07'27.8"E). The area does not have any other commercial activity or industrial activity.

NATURE OF ACTIVITIES IN THE PROJECT

The Hydro Electric Power Project is establishing in the name and style of M/s Micro Hydro Electric Power Generation Pvt. Ltd. for production of electricity with capacity 1.5 MW.The main components of the project are weir site over the Jawal Khad, power house and transmission lines to the grid.

SITING CRITERIA FOR SUCH HEP PROJECTS

There are no sitting / distance criteria notified by any competent authority for setting up of Hydro Electric Projects.

ENVIRONMENT CLEARANCE APPLICABILITY

Small Hydro Electric Power Projects (SHEPs) with capacity less than 25 MW are exempted from the applicability of Environment Clearance as per the provisions of EIA Notification 2006.

SOURCE OF WATER

The project is SHEP and water is to be used for electricity generation, the source of water for the projectis Jawal Khad which is a tributary of River Beas. The project is also proposed to be located in the catchment of River Beas.

NOCs / LICENCES / APPROVALS OF VARIOUS DEPARTMENTS/ AGENCIES

7.1 HIMURJA - The allotment of Hydro Electric Project has been approved by Director, HIMURJA, Shimla vide his office letter no. HIMURJA/SHP-III/MHE(160)-2K-10810, dated 14.11.2000. (Copy enclosed as Annexure-I)

7.2 MOU - The Memorandum of Understanding between Govt. of Himachal Pradesh and M/s Micro Hydro Electric Power Generation (P) Ltd. New Road, Hamirpur for preparation of Detailed Project Report has been executed on 14.05.2011 (Copy enclosed as Annexure-II)

7.3 Gram Panchayat NOC - The Gram Panchayat Surah has issued NOC in favour of the Small Hydro Electric Project (SHEP) vide Resolution No, 03, dated 13.11.2008. (Copy enclosed as Annexure-III)

7.4 Jal Shakti Vibhaag - The Superintending Engineer, Jal Shakti Vibhaag, Circle Sundernagar has issued NOC in favour of unit for setting up of 1.5 MW SHEP at Surah Khad vide letter no. IPH-SE-SNR-WA-Misc-NOC/2008-16160-64, dated 18.12.2008. (Copy enclosed asAnnexure-IV)

7.5 HP Public Works Deptt. The Superintending Engineer, 1st Circle, HPPWD Mandi has issued NOC in favour of the HEP vide his office letter no. PWD-25-NOC/2009-34087-88, dated 17.03.2009. (Copy enclosed as Annexure-V)

7.6 Supplementary Implementation Agreement for the SHEP has been executed between Govt. of Himachal Pradesh and M/s Micro Hydro Electric Power Generation (P) Ltd. New Road, Hamirpur on 23.12.2020. (Copy enclosed as Annexure-VI)

7.7 HP State Electricity Board–(Techno Economic Clearance): The same has been accorded in favour of SHEP vide Office Orders issued by The Chief Engineer, Projects, HPSEB Ltd. Shimla vide Order no. HPSEB/CE (P)/CC -Surah/2008-5123-32, dated 26.06.2008. (Copy enclosed as Annexure-VII)

7.8 Fisheries Deptt - The Director-cum-Warden of Fisheries, Directorate of Fisheries has issued NOC in favour of SHEP vide his letter No. FSH-F(2)39/2010-ARC-II-2641 dated 26.03.2011. (Copy enclosed as Annexure-VIII

7.9 Forest Clearance - The District Collector Mandi has issued a letter in favour of unit certified that 0.5655 hectare of forest land proposed to be diverted in favour of SHEP vide his letter No. MND/SR/LRC/2015-dated 13.10.2016. (Copy enclosed as Annexure-IX)

7.10 State Pollution Control Board –

Small Hydro Electric Power Projects (SHEPs) with capacity less than 25 MW are exempted from Consent mechanism of the State Board. However, as per the notification of Department of Environment, Govt. of Himachal Pradesh vide notification no. PC-F(2)-I/2005, dated 09.09.2005 that “threshold value of not less than 15 % of the minimum inflow observed in the lean season; to the main river water body whose water is being harnessed by these projects, the copy of notification is enclosed as Annexure-X.

PHYSICAL PROGRESS AT PROJECT SITE

As per the inspection carried out, the unit is carrying out land development works in the location where power house is to be established. (pic 01 below). The works of the diversion weir is also under progress (pic 02 below).

OBSERVATIONS MADE DURING THE JOINT INSPECTION

During the joint inspection, a public hearing was organized under the Chairmanship of the Deputy Commissioner Mandi. During the hearing about 42 local residents were present. The Project Proponents Sh. Ashish Gupta and Sh. Banit Gupta were also present in the hearing. The Deputy Commissioner Mandi requested all the residents to submit their grievances related to proposed HEP.

The residents reported their concerns, the same were noted by the concerned departments, the residents also submitted a letter to the Deputy Commissioner regarding grievances related to HEP, the copy of same is enclosed as Annexure-XI.

The Deputy Commissioner Mandi directed all the concerned officials of the departments to furnish the status report w.r.t the points raised in the complaint as well as mentioned submitted during hearing pertaining to their respective departments and submit the report to the nodal officer i.e. Environmental Engineer, HP State Pollution Control Board Regional Office Mandi within two weeks. The videography of the hearing was also carried out and the entire proceedings are in the official record.

SPECIFIC FINDINGS / OBSERVATIONS REPORTED BY VARIOUS DEPARTMENTS / AGENCIES

10.1. Diversion of forest land under FCA, 1980 and FRA Certification as per the provisions of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006:-

As per the report given by Divisional Forest Officer, Nachan vide letter No. 5636 dated 30.09.2022, diversion of 0.5655 hectare Forest land has been granted under FCA, 1980 in favour of M/S Micro Hydro Power Gen. Pvt. Ltd. for the construction of Surah Small Hydro Electric Power Project (1.5 MW) after observance of all the codal formalities and approval of the same has been accorded by MoEF and CC (Govt. of India) vide letter No. I-HPB 675/2020 CHA/1441 dated 18.12.2016.

With reference to the compliance of FRA, 2006 it is submitted that as per the record muhal sabha’s proclamation was issued on dated 23.02.2014 (“Annexure-XIIA”) for calling the claims under FRA, 2006. The Forest Right Committee (FRC) meeting was conducted on dated 29.05.2014 (“Annexure-XIIB”) and (“Annexure-XIIC”) was issued. The case was forwarded to muhal sabha and muhalsabha meeting was conducted on dated 02.08.2016 (“Annexure-XIID”). During this period no forest rights claims were received from any resident of muhal sabha Surah. Therefore, Forest Right Committee Surah issued Annexure II (“Annexure-XIIE”) as per the provisions of FRA, 2006. Annexure V/NOC of land area measuring 0.5655 ha. situated in muhal Surah, Tehsil Thunag, District Mandi H.P was issued by the muhal sabha on dated 02.08.2016 (“Annexure-XIIF”) in favour of M/S Micro Hydro Power Gen. Pvt. Ltd. for the purpose of construction of Micro Hydro Electric Power Project Surah 1.5 MW. The case was forwarded to the Sub Divisional Level Committee (SDLC), Gohar and meeting of SDLC was conducted on dated 20.09.2016 and Annexure-III (“Annexure-XIIG”) was issued accordingly. Thereafter the case was sent to District Level Committee (DLC). The meeting of District Level Committee (DLC) was conducted on dated 07.10.2016 (“Annexure-XIIH”). After detailed discussion and scrutiny of the case and documents placed on record the District Level Committee issued FRA certificate on dated 13.10.2016 (“Annexure-XII “I”) in favour of Micro Hydro Electric Power Generation Pvt. Ltd. for the purpose of construction of Micro Hydro Electric Power Project Surah 1.5 MW.

Therefore, it is reiterated that all the codal formalities have been completed as laid down under the provisions of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and rules framed there under. The FRA certificate has been issued in favour of Micro Hydro Electric Power Generation Pvt. Ltd. on the basis of recommendations of muhal sabha Surah and SDLC Gohar.

The allegations regarding forged signatures in the proceedings of muhal sabha has been enquired into through Addl. District Magistrate, Mandi H.P who has submitted his enquiry report (“Annexure- XIIJ”) with inconclusive findings. As per the enquiry report submitted by ADM Mandi out of 99 person’s appeared during the enquiry the signatures of 3 person’s are matched, 79 person’s are not matched and minor difference has been observed in the signatures of 17 person’s. In addition to it, the enquiry report has revealed that 60 persons have stated that they were not present in the muhal sabha meeting and 39 persons have stated that they were present in the meeting of muhal sabha held on dated 02.08.2016. Further he has recommended the analysis of signatures through some expert agencies in order to get accurate results. This matter is presently sub judice with Hon’ble High Court of Himachal Pradesh as CWP No. 2142/2022 titled as Puran Chand Vs State of Himachal Pradesh in which detailed reply has already been filed by the state in this regard.

As per the revenue record, the total Forest area in the two no. revenue Mohals in Patwar circle Shikawri is 2423-12-09 bighas, the details of the same is as under:

Out of total 2423-12-09 bighas forest land, only 06-19-13 (0.5655 hectare) bigha land has been acquired for the construction of Small Hydro Electric Project. Therefore, forest rights of the local residents are not violated as alleged by the applicant and they are still enjoying their traditional rights in the forest land as mentioned in the revenue record.

10.2. Environmental Pollution and safety of the villagers

During the inspection no Environmental violation was observed. However as mentioned above, the project proponent are bound to comply with the Notification of Department of Environment, Govt. of Himachal Pradesh vide notification no. PC-F(2)-I/2005, dated 09.09.2005 that “threshold value of not less than 15 % of the minimum inflow observed in the lean season; to the main river water body whose water is being harnessed by these projects”.

Also, the unit is required to submit Muck management Plan approved by the competent authority and the muck dumping details on the prescribed format are required to be submitted in the HPPCB on monthly basis.

10.3. Irrigation Water Sources and impact on Agriculture and Horticulture:

The Executive Engineer Jal Shakti Vibhaag Thunag has submitted that the proposed Surah HEP (1.5 MW) is to be constructed on Jwal Khad near Village Surah and there aretwo no. existing Lift water supply schemes and two no. schemes are proposed in the area. Source of all schemes is located upstream of trench weir of proposed Surah HEP As per the directions of the Deputy Commissioner Mandi, the Executive Engineer, Jal Shakti Vibhag has made a submission as under:

10.3.1 Sources of Irrigation Water:

Two no. irrigation schemes (one no. existing and one no. proposed) The existing scheme LWSS Parwara is presently running to meet water requirement of 9.44 LPS, whereas the proposed water supply scheme mentioned at Lift water supply scheme to renovate old water supply schemes of GP Kandha Bagsaid, Saran and Murhag under ADB has been designed for water requirement of 3.85 LPS. from Jawal Khad.

10.3.2 Sources of Drinking Water:

There are two nos. of water supply schemes (1 no. existing and one no. proposed) are based on jwal khad. The existing scheme KIS Sunas having water requirement of 5.80 LPS to irrigate 20.21 Hectare area. One no. irrigation scheme FIS to Surah has been proposed for water requirement of 2.10 LPS which will irrigate the CCA 8.80 Hect.

10.3.3 Details of water supply schemes likely to be affected due to the project:

As mentioned above the sources of proposed and existing water supply schemes tapped are located upstream of trench weir of proposed Surah HEP., However One no. spring source of the scheme (31°35'39.2"N 77°08'50.8"E) WSS Surah Salveen which provides water to habitant of village Khamrada is likely to be affected during construction of the tunnel, as inlet side of the tunnel (Portal) (31 35'39"N 77 08'49"E ) of this project is approx. 20 mtrs. range of the source. The copy of the letter is Annexed as Annexure-XIII.

10.4 The Deputy Director, Department of Agriculture, Mandi

As per the report received from The Deputy Director, Agriculture, Mandi:

· Total No of Farmers 60 no.:

· Surah -40, Khamrara-12 and Sakran-08

· Total cultivated land – 183.53 Ha (Cultivated=46.38 Ha & Uncultivated land=137.15Ha)

· Types of Crops grown – Wheat, Maize, Potato, Cabbage, Beans, Peas

· Cropping Pattern – maize-Wheat-Vegetables.

The copy of letter is enclosed as Annexure-XIV.

10.4.1 Requirements of irrigation water during different seasons / months. Irrigation water is required three times a month during Kharif and two times a on the during Rabi season till the maturity of the crop.

Source of irrigation water – Jaggar Nallah, Suketi Nallah, Tiker Nallah

10.5 The Deputy Director, Department of Horticulture, Mandi As per the report received from The Deputy Director Department of Horticulture:

1

Total

no. of

93670

farmers/orchardi

st assessed

2

Total cultivated

38432 hectare

area

3

Type

of

cropsThe reported

provided is

enclosed as Annexure-XV,

and

growingregarding growing pattern

new techniques are being

pattern

developed by the department like small spacing, high

density for development of orchards in

small space

land

for

high

breeding

varieties giving maximum production of fruits.

4

Requirement of

Hard need of irrigation water during different

Irrigation

waterseasons/months for the crops.

during different

season/months.

Limited no. of water sources provided by the department

like tanks in RKVY and tube wells in very limited no. and

now recently work in progress under water users

association under project HPHDP

10.6. Traditional Water Mills:

SDO (C) Thunag has submitted that the matter was enquired through Tehsildar Thunag and it was observed that there are total 11 water mills in Surah Khad along the downstream of1.5 MW HEP Surah in Tehsil Thunag, out of these only 02 are in working condition & are currently in use, while the rest of 09 are non functional & not in use. The copy of the letter is enclosed as Annexure-XVI.

10.7 Potential Risks due to the Small Hydro Electric Project:

The main components of the proposed SHEP are:

Head Race Tunnel followed by Forebay Tank then Penstock and Power House. The length of the Tunnel is 400 mtr and the diameter of the pipe is proposed to be 2.4 mtr. The controlled blasting operations are required to be done for the construction of the tunnel and prior approval for carrying out blasting may be obtained by the project proponent.

No major potential risk is associated with the construction/seting up of other project components.

10.8 Permission of local residents for construction/operation of SHEP:

The concerned Gram panchayat i.e Gram Panchayat Murhaag has issued No objection certificate in favor of the M/s M/s Micro Hydro Electric Power Generation Pvt. Ltd. on 13.11.2008.

10.9 Apprehension of adverse impacts on the life of the local residents:

As the Proposed project is a Small Hydro Electric Project, the impact of the project during the construction as well as operational phase is minimal on the local residents. As water will be used for Power generation only, there will no effluent generation from the proposed SHEP. As highlighted above, the unit is bound to release minimum 15

% of the lean period flow during all the year, the same shall be done by installation of Real Time Flow Measuring device linked to the HPPCB server, the same is being monitored by the concerned regional office. There may be fugitive dust emissions during the construction phase and unit shall take all the requisite steps for control of the same.

CONCLUSION

The Joint inspection report is concluded as under:

a) No violation w.r.t Forest land encroachment/excavation of forest land was observed. However the issue of certificate issued under FRA 2006 is already under consideration being the matter subjudice in the Hon’ble High Court of H.P

b) No unscientific muck disposal was observed in and around the project site.

c) Regarding Water scarcity in the area after commissioning of the project, the project proponent has submitted an undertaking that storage tank of appropriate capacity shall be provided before the intake point and overflow of the tank shall only be used for the power generation in the project.

d) No damage to any water supply scheme or sources has been observed during the inspection.

e) Unit is required to strictly implement the muck management plan and no unscientific dumping of muck is to be carried out during the construction stage.

f) The compliance of the notification regarding release of minimum 15 % flow during all the year shall be ensured during the commission of the

g) No blasting has been carried out in the project site till date as alleged in the application.

h) The various Deptts. / Agencies shall keep a check/vigil over the project during the construction phase.

In view of above findings, it is concluded that there is no Environmental violation as observed by the committee. Further, the decision of the Hon’ble High Court of HP in CWP No. 2142/2022 titled as Puran Chand Vs State of Himachal Pradesh in the FRA case shall be binding on all the parties.”

In the Report of the Joint Committee, it has been mentioned that the Joint Committee did not find any violation of environmental norms and, therefore, no question relating to environment arising out of implementation of the enactment specified in Schedule I to the National Green Tribunal Act, 2010 is involved in the present case. In the report, it has also been mentioned that the allegations regarding forged signatures in the proceedings of muhal sabha has been enquired into through Addl. District Magistrate, Mandi, Himachal Pradesh who has submitted his enquiry report (“Annexure- XIIJ”) with inconclusive findings. As per the enquiry report submitted by ADM, Mandi, out of 99 persons who appeared during the enquiry the signatures of 3 persons matched but signatures of 79 persons did not matched and minor differences were observed in the signatures of 17 persons. 60 persons stated that they were not present in the muhal sabha meeting while 39 persons stated that they were present in the meeting of muhal sabha held on dated 02.08.2016. ADM, Mandi recommended the analysis of signatures through some expert agencies in order to get accurate results. The matter of certificate issued under FRA 2006 is presently sub judice before Hon’ble High Court of Himachal Pradesh in CWP No. 2142/2022 titled as Puran Chand Vs. State of Himachal Pradesh.

In view of the pendency of the above said matter regarding issuance of certificate under FRA 2006 before Hon’ble High Court of Himachal Pradesh, we are of the considered view that no intervention in the above said matter by this Tribunal is warranted as the applicant can also move Hon’ble High Court of Himachal Pradesh by way of appropriate proceedings for appropriate relief.

In view of the above, the application is disposed of with liberty to the applicant to move Hon’ble High Court of Himachal Pradesh by way of appropriate proceedings for appropriate relief, if so desired.