Kanhar: To be or not to be?

The May 7th Kanhar judgement by the National Green Tribunal validated the protesters' claims, but then also allowed the Government to 'complete earlier work'. Isn't the NGT contradicting itself?
A destroyed tent after the lathi charge A destroyed tent after the lathi charge

The last month has been one of great activity around the illegal construction of the Kanhar dam in Sonebhadra district of Uttar Pradesh. In the two episodes of firing on peacefully protesting adivasi dalits, the Uttar Pradesh government violated the constitutional and democratic rights which are the core of our social fabric at the behest of local land mafia. What has happened since?

The NGT judgement

O.D. Singh and Debadityo Sinha had filed a petition in December 2014; the National Green tribunal issued its judgement on May 7, 2015. This judgement clearly indicates that the construction of the Kanhar dam is illegal and it has proved that the claims of the dalit adivasi people were correct. Despite this, in an apparent attempt not to antagonize the government, the NGT has allowed “the construction or activity that is under way” but has put a stop on any new activity without specific recommendations of the High Level Committee. But the fact is that all current construction work is new work. Hence there is a contradiction in the analysis given in the 50 page judgement regarding the various legal flaws on the construction of the dam and the one line direction allowing construction or activity. 

It is important that people analyse and understand court judgments like the NGT order of May 7, 2015 which has in effect blown away the very basis of the construction of the Kanhar dam. All the facts put forward by the petitioners have actually been accepted by the court -- that the project has no appropriate forest clearance and that the claims of the Uttar Pradesh government is incorrect. The court has also accepted that the project activity had hardly commenced in the year 2006, and thus the project cannot continue without obtaining the Environmental Clearance in terms of the EIA Notification of 2006. The project also has no clearances under the Environment (Protection) Act, 1986 and Forest (Conservation) Act, 1980.

The Sonbhadra district administration’s submission that an insignificant percentage of adivasi population would be affected by this dam has also been proved wrong by the court. In reality, 7,500 families from 25 villages, the majority of whom are tribal, will be displaced and will need rehabilitation. The NGT has in this judgment expressed serious concern on environmental issues and has pointed out that Kanhar river is a major tributary of the Son which is a major tributary of Ganga. Due to construction of several dams and water diversion structures on the Son including the Rihand Dam and Bansagar dam, the river Son is already facing great threats to its existence.

The Order has noted that the project is bound to result in a huge loss of forest area -- a large number of trees were felled despite strong opposition by the tribals which is a gross violation of the provisions of the Forest (Conservation) Act, 1980. It also referred to the T.N. Godavarman v. Union of India and Others, W.P. (Civil) No. 171/96, where it was contended that forests are vital components for sustaining life support systems of the earth, for preventing any damage to them, and that development should be consistent with the protection of the environment and not at the cost of degradation of the environment.

Any threat to ecology can lead to the violation of the Right to Enjoyment of Healthy Life guaranteed under Article 21 of the Constitution of India and needs to be protected. The court has asserted that there is a need for a proper cost benefit analysis particularly because no opportunity has been granted to the affected persons to raise their concerns and grievances, and also because significant changes have taken place in the environment due to a drastic increase in population, industries and development of coal mines etc.

Escalating costs: From Rs. 28 crore to Rs. 2259 crore

The honourable Tribunal has also laid bare the huge cost escalations in this long delayed project, which was initially approved for an estimated cost of Rs. 27.75 crore in 1979 with a revised estimate of Rs. 69.47 crore. In the 106th meeting of the Advisory Committee of the Central Water Commission held on October 4, 2010, the estimated cost of the project was quoted as Rs. 652.59 crore, as per price levels of 2008-09. Of late, it has been revised to Rs. 2259 crore. The scope of the project was expanded in this long time period which is also a reason for the cost escalation.

NGT uncovers the truth

It is evident from the NGT judgment that the UP government and the UP Irrigation Department have tried their best to mislead the Tribunal with many incorrect facts. The UP government informed the tribunal that this is an inter-state project which had been sanctioned in the year 1976, and the Environmental Clearance was accorded in 1980. The UP government also mis-stated facts about clearances from the neighbouring states of Chattisgarh and Jharkhand where villages would also be submerged – giving an idea that that clearances were obtained during the initiation phase of the project, but in reality such clearances were actually obtained in 2010 and 2012 respectively. They also said that this project was meant to provide irrigation facilities to drought-prone areas of Duddhi and Robertsgunj in the Sonbhadra district (when this region has the much talked about Rihand dam which is supposed to be a large scale irrigation project though waters from this dam is being used to meet the needs of the energy producing companies of this area).

The government claimed that work on this project has been going on from 1980. However, from the documents on record, the court observed that it is clear that the construction and related activity of the project had come to a halt and had not been carried out for a long time until 2014 for the want of funds, and due to the absence of fresh permission from the Central Water Commission. The Tribunal also noted that after the Environmental (Protection) Act, 1986 came into force, the Ministry of Environment and Forests had issued a Notification dated January 27, 1994 requiring any person who desires to undertake any new project and in any part of India, or the expansion or modernization of any industry or project listed in Schedule I to the Notification, to submit an application to the Ministry to seek Environmental Clearance for the project. Schedule I to the Notification included hydro power, major irrigation projects and / or their combination including flood control projects. In view of the peculiar facts and circumstances of this case, it was expected of the UP government to seek Environmental Clearance in terms of the Notification of 1994, which apparently they did not.

The Tribunal has also observed another very important fact about the Kanhar project -- that this is not a site oriented project but a huge project, which will have diverse impacts on a very large area and a number of villages falling in the territory of the three States namely Uttar Pradesh, Jharkhand and Chhattisgarh. It has also raised questions regarding compensatory afforestation activity carried out by the Forest Department as per the permission of the Governor of Uttar Pradesh approving the diversion of 2422.593 acres of forest land situated in Dudhi Forest Division of District Mirzapur to the Irrigation Department. The Tribunal found that against an area of 980.40 hectares diverted for the irrigation project, the area brought under compensatory afforestation in terms of the statement filed by a Divisional Forest Officer, Renukoot Forest Division is only 666 hectares of forest plantations and 80 kms of road side plantations.

Environmental stress to Sonabhadra

The industrial development that has taken place in Sonabhadra district in the last 30 to 40 years has created a great deal of environmental stress. The Singrauli region was identified as a critically polluted area by CPCB in 1991. Consequently, the Government of India placed a moratorium on the setting up of new industries in 2010. Thus, the environment clearance of 1980 makes no sense in the changed situations and warrants a fresh approval. Ultimately however, despite expressing so much concern about the environment and the state of the people of the region, the order passed by the Tribunal is not in consonance with the concerns expressed.

The tribunal order ultimately bases itself on the cost factor only and allows construction work to continue because it felt that huge amounts of public funds have already been spent on the project -- a  project which is costing the nation nearly 100 times the original estimated cost of Rs. 27.75 crore at  2013 price levels. Stoppage of work would further enhance the cost of construction and would be an unnecessary burden on the public exchequer. Thus, any direction for stoppage of work or demolition of the project would certainly not serve either the ends of justice or the environment.

The order of the tribunal is contradictory because in its interim order of December 24, 2014, it had asked the government to stop all construction because appropriate Forest Clearance had not been produced. But construction work continued and trees continued to be felled despite this interim stay order. For stopping new construction and seeing to it that all environmental and forest clearance norms have been adhered to, the Tribunal has set up a High Level Committee which does not however have any representation from mass organisations, scientists or any geological and expert organisations. This is a matter of grave concern.

There is no clarity on who will actually ensure that no new construction is being done or that all conditions as set out by the tribunal order are being followed. The ground reality is that the Sonbhadra district administration, police and UP government is only focused on silencing peoples’ voice by using state power. In such a situation, where is the guarantee for people under Article 21 of the Constitution safeguarding their Right to Life? This Right is not being guaranteed by the government, judiciary, political parties or mainstream media  – which seem to have completely surrendered to corporate designs. The landless and marginalized communities are beginning to forge a fighting unity on the ground to challenge this state of affairs. 

Unfortunately the NGT order does not take in to account this emerging political ground reality and in effect tries to weaken the peoples' resolve and support the unsocial elements and land mafia in their greedy overtures. But whatever be the given situation it will be incorrect to underestimate the democratic values of this country because it is our firm belief that the peoples' struggle would be victorious.

As the departed shayar Harjeet had written –

        "Munsif ka saach sunhari siyahi mein chip gaya
                                  waise woh jaanta hai khatawar kaun hai"

(Truth hides beneath the golden ink of the judge’
                        But he  knows who the offenders is)

The views and opinions expressed in this article are those of the author/s and do not necessarily reflect the policy or position of India Water Portal. This article is an abridged version of the analysis done by Adv. Roma Malik, Dy. Gen Sec, All India Union of Forest Working People(AIUFWP) / Secretary, New Trade Union Initiative (NTUI) Coordinator, Human Rights Law Center. Please download the entire analysis below. 

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