Social Impact Assessment Audit of Energy Sector in Nagaon Assam & Some Noted Audit Objection For the Compliance Implementation.
This audit is based on the satellite images given at the end and the important case laws covering resettlement issues, environmental violation and land acquisition process violation. Thanks to Prof. Vasundhra Jairath, Assistant Professor, ( Development Studies ), Indian Institute of Technology, Guwahati for exposing the problems in Assam in this Green Energy Plant. She has raised large scale social safeguards violation in the Azure Power Forty Pvt. Ltd's Solar Power Plant of 15 Megawatt, at Nagaon, Assam.
*Birendra K Jha,Impact Assessment Study by HR Lab.
Preview:
In Assam's paddy fields, the wild elephants have developed a taste for fine paddy. Farmers are growing such fine paddy only for the wild elephants. People believe this love bonding shall reduce man- elephant conflict. This is the main working idea of the "Hathi-Bandhu", an NGO working in Assam. This is one golden side of treatment for the wild elephant. At the other side in the Nogaon, the natural water bodies, which use to flow during monsoon, received adequate water from the catchment area and flow down side the two hills of the Burha Pahar. Wild elephant and cattle, were using this water body during the past many thousand years. Now this water body is choked. Solar Power Plant has been created over this water body.
The wild elephants have given signal. They have shown resentment. They are raising voice in anger, why their water source is choked. Who will listen this voice. Only God. Man has no sense to listen this voice.
The tribal people, living in the vicinity of this solar power plant, are also crying. They are weeping that on there cultivated land solar plant has been constructed. They have been thrown and removed overnight without any compensation.
This social audit shall audit completely the specific side of human, environmental problems with clear scope of audit.
Scope of Social Audit:
The scope of social audit is limited only to following six questions. The analysis answer is give side by side.
1) Whether solar power plant is established on barren land? (This is claimed in document submitted in court that the so called parcel of land has remained barren for more than 10 years ). Answer: This is not barren land, as seen in the satellite audit. The lands are used for rice cultivation, before the solar power industry established here. ( Refer evidence satellite audit image: 6,7 & 8 ).
2) Whether there is any encroachment of water-body by the solar power plant? Answer: Yes. There is clear encroachment of water-body, as seen in the satellite image. ( Refer evidence satellite audit image: 1,2,3,4 &5 ).
3) Whether solar power industry is established over the water-body? Answer: Yes. Solar power industry is constructed on the water body as seen in the satellite image. (Refer evidence satellite audit image: 1,2,3,4 &5 ).
4) Whether there is any construction of permanent nature over the water- body ? Answer: Yes. There is permanent construction on the water-body as seen in the satellite image. (Refer evidence satellite audit image: 3 ).
5) What is the ownership claim of the tribal people on the land where solar plant is constructed? Whether compensation paid to the real owner ? Answer: Yes. The tribal farmers are the real owner, as per the Law of the Adverse Possession. They are here for more than 20 years with the "Khatian" document. The "Khatian" document with the tribal farmers, had not been challenged by the original land owner. Thus the land has shifted in the hand of the tribal farmers. The compensation has not been paid. (Refer case laws given in this audit ).
6) Is there any other law violation? Yes. The Law under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 has not been complied.
Point of Objection:
In the foothills of the Karbi Hills, for generations and more than decades the tribal Karbi farmers are cultivating paddy. The elephants mostly living around the two hills, nearby, cross the paddy field for reaching at a natural stream of water-body, which in the month of rainy season was providing abundant supply of water to the elephants and cattle. This is the natural water-body, the elephants have been using for many thousand of years. But, the greedy & selfish men in the name of development, obstructed and encroached the water-body, not only for the elephants, but damaged the surrounding environment.
The solar power plant has been constructed over the water-body. How this was allowed ? Whether there had been any serious social audit before the establishment of the solar plant or not ? The satellite images reveals the compliance violation of severe degree.
This is not the agony of the environment and the elephants. The tribal farmers, who use to cultivate rice here, have been displaced. They have been cultivating rice here for many generations. They have been overthrown from this site. The tribal have only plain statement. They are not smart like others.
Whether solar plant established on the barren land? Really there is no cultivation during the last 10 years ? :
The tribal farmers are facing one typical situation. Documents have been filed in the Hon'ble Court, where the so called land piece, where solar plant has been established and on which the farmers are raising their voice, have been shown as barren land.
Honestly, there is misleading fact. Satellite looks the said site as cultivated land for many decades. This is not the "barren land" as claimed in the document and submitted in the court. The satellite images submitted in this audit contradicts the claim.
Is The Law Under The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 Violated?
Yes. The Law under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 has not been complied. This is completely missing.
Since The land acquisition has been done by private company. Hence, under Section 2 ( b) (i) of the said Act, at least 80% affected families shall give their prior consent. This consent has not been taken and is completely missing. The consent and the Social Impact Assessment as under Section 4 is missing and not conducted in proper way.
Is There Any Encroachment of the Water-Body? :
The solar plant has damaged and obstructed the water body. The water-body is now packed in between the Western and the Eastern side of the solar panels. The boundary wall has been constructed over the water-body. In this way, the water destination of the elephants have been disturbed. Satellite images produced here, demonstrate that how this is easy to wipe out completely the water-body.
Important Laws & Case Laws:
The solar plant can't be constructed over the water-body. This is violation of the Environment (Protection) Act, 1986 and the Rules framed under the Wetlands (Conservation and Management) Rules, 2010. This solar plant construction is against the Wetlands Rule 4 ( 2) ( i), (ii) & (vi). The restrictions are very clear and speaking in this Rule:
a) any conversion for non-wetland uses including encroachment of any kind is not permitted.
b) setting up any industry over the water-body is not permitted.
c) and any construction of permanent nature on the water-body is not allowed.
Further following case laws are also against the solar plant construction:
1. Hon'ble Supreme Court of India in Mirza Abid Beg v. State of U.P and Ors. [Civil Appeal No(s).1904/2020] has ruled that the State has constitutional duty to protect & restore water bodies. The Supreme Court on July 16, 2024 observed that the State has the constitutional duty to not only protect water bodies within the state but also to restore those water bodies which have been illegally filled. The bench, of Justice Abhay S Oka and Justice Augustine George Masih, has given this high impact order to protect and restore such environmental assets.
2. In Mantri Technoze Pvt. Ltd. vs Forward Foundation (5 March, 2019), the Hon'ble Court ruled:
This is absolutely essential for the purposes of sustainable development particularly keeping in mind the ecology and environment of the areas in question that all the offending constructions raised on the water body of any kind including boundary wall shall be demolished which falls within the water bodies areas.
3. In Abhist Kusum Gupta vs State of Uttar Pradesh on 12 October, 2022 the Hon'ble court observed:
The responsible authority has been directed to look into the aspect of recharging the ponds/water-bodies and take appropriate steps for protection and management of the catchment area of the ponds/water-bodies and do all necessary steps to protect the ponds/water-bodies.
4. In the Madras High Court judgement in the case TK. Shanmugam vs The State Of Tamil Nadu on 30 October, 2015. The hon'ble court ruled:
Moreover, Article 51-A of the Constitution of India enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. This Article is not only fundamental in the governance of the country but a duty on the State to apply these principles in making laws and further to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the Constitution including Articles 14, 19 and 21 of the Constitution and also the various laws enacted by Parliament and the State Legislatures. But unfortunately, the State, by passing the above said Government Orders, actively encourages encroachers of water bodies, to indulge in illegal and unlawful activities and also bent upon regularizing their possession which has to be deprecated.
6. Again in the Madras High Court judgement in case K. Arumugam vs The Secretary on 6 September, 2018. The Hon'ble court directed the authority in strong words to evict all encroachments made in water bodies and water resources and keep the water bodies open for preservation of water and in the interest of the public at large.
7. India is a signatory to the Ramsar Convention on Wetlands and is committed to conservation and wise use of all wetlands within its territory. Any encroachment of water-body under the Ramsar Convention is not permitted.
8. The EIA Notification of 2006 requires that without grant of Environmental Clearance, no project can commence its activity. This restriction applies not only to operationalization of the project but even for the purposes of establishment. Why this compliance is missing here ? If compliance is there - then why this violation not recorded?
The status of the owner of the land- Where solar plant constructed:
The tribal farmers have been raising their voice against the illegal acquisition of their cultivated land. The solar plant company has paid compensation to the others. The farmers are claiming their ownership right under the Assam (Temporarily Settled Areas) Tenancy Act 1971.
Under Assam (Temporarily Settled Areas) Tenancy Act 1971, the tenant, who has cultivated the land for 3 years have right to occupancy. But, the government is rejecting the claim. It is said that the rent has not been paid, so the ownership claim of the farmers are not acceptable.
The tribal farmers have "Khatian" showing land in their possession for over 20 years. They have clear possession of the land under the law of the Adverse Possession, where the land has been cultivated. Under the Limitation Act 1963, a person claims immovable property as owner after possessing it for 12 years.
Further, farmers have "Khatiyan". This is a good piece of evidence of possession for the Adverse Possession. This is Record-of Right. The "Khatiyan" documents have clearly created presumption of possession of land for more than 20 years in the capacity of the Adverse Possession of the land.
Important Law & Case Laws for the Ownership claim of the farmers:
1) The Hon'ble Supreme Court has recognized that tribal farmers, acquire title of land by adverse possession. This is now tribal lands. The land has shifted from the hand of the Jamidaar to the tribal. As attempt of re-entry has not been made by the Jamidaar. The Jamidaar is falling under the category of non-tribals. The non-tribals cannot acquire such rights over the tribal lands due to protective laws Mangal Sai Armo S/o Late Sukrit Ram VS Union of India Through Secretary, Ministry of Coal, Shastri Bhawan, New Delhi - Chhattisgarh.
2) The Hon'ble Gauhati High Court in case Mozibar SK vs Meher Ali And Ors on 28 March, 2024 ruled in Para 18:
"A person other than the owner, if continues to have possession of an immovable property for a period as prescribed in the statute providing limitation, openly without any interruption and interference from the owner, though he had knowledge of such possession, would crystallize in ownership after the expiry of the prescribed period of limitation, if the real owner has not taken any action for re-entry and he shall be denuded of his title to the property in law".
2) In the case of Thakur Kissan Singh vs. Arvind Kumar , reported in AIR 1995 SC 73 the Hon'ble court has ruled as follows -
"A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner".
3) In Saroop Singh vs. Banto and others reported in (2005) 8 SCC 330, the Hon'ble court held that -
"Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period of prescription does not commence".
4) In the case of T Anjanappa and others vs. Somalingappa and another , reported in (2006) 7 SCC 570, the preconditions for taking plea of adverse possession has been summarized as under -
"It is well recognized proposition of law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent to as to show that it is adverse to the true owner. The classical requirements of accusation of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of well known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action".
5) In another case, Annakili vs. A. Vebanayagam and others, reported in AIR 2008 SC 346, the court pointed out that a claim of adverse possession has two elements - (i) the possession of the defendants becomes adverse to the plaintiff and (ii) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi is held to be a requisite ingredient of adverse possession, well known in law.
6) The settled position of law is that the burden of proof rest on the person claiming adverse possession. In the case of P.T. Munni Chikkanna Reddy vs. Revamma, it has been held that initially the burden lies on the land owner to prove his title and thereafter, it shifts on the other party to prove the title by adverse possession. It was observed -
"The law in this behalf has undergone a change. In terms of Article 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit land that he had title and possession of the land, whereas in terms of Article 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change in so far as the onus is concerned; once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession."
Satellite Audit:
The satellite images are important part in such dispute involving the settlement and environmental issues. The images are speaking itself, what major different compliance violation are there:
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