(EAS Sarma)
I understand that the AP Cabinet has just decided to permit the Adani Group to set up two large (1000-1300MW) pumped hydro storage projects in Parvathipuram Manyam district, in addition to one such project in Sri Sathya Sai District. It appears that each of these projects will require thousands of acres of land, which the Adani Group would apparently take on lease.
If either the project site or the affected areas fall within any area notified under the Fifth Schedule to the Constitution, the following stringent requirements should have been fulfilled prior to taking such a unilateral decision.
- No project in the Scheduled Areas can even be conceived without the prior consent of the local tribal Gram Sabhas in accordance with the Panchayat (Extension to the Scheduled Areas) Act or PESA and the Forest Rights Act.
- No land can be leased out to a private company, as such a transaction is prohibited by the AP land transfer regulation. This position had been reiterated by the Hon’ble Supreme Court in the well-known Samata case in which the apex court had directed the State not to allow private agencies to undertake projects in the Scheduled Areas
- No such project in the Scheduled Areas can be undertaken without a prior discussion by the Tribal Advisory Council duly constituted as per Para 4 of the Fifth Schedule.
- In the Scheduled Areas, the local tribals have a stake in the natural resources which cannot be handed over to any private agency.
- Article 338(9) of the Constitution requires that the State consults the National Commission for Scheduled Tribes before taking such a far-reaching decision.
It appears that none of the above requirements have been fulfilled. In that case, if the project site, or the affected areas, or a portion of the land required for the project falls within the Scheduled Areas, the decision taken by the State Govt is legally untenable.
If at all a pumped storage project were to be set up in the State, subject to compliance with the statutory requirements applicable to the Scheduled areas, APGENCO is a far more competent agency that could be entrusted with that responsibility, whereas the Adani Group has neither the experience nor the expertise comparable to that of APGENCO. It is widely known that the Adani Group has huge debt liabilities and even the funds needed for the hydro projects would have to come directly or indirectly from the PSU banks.
It appears that the proposed pumped storage projects in the Scheduled Areas would displace several tribal villages. If it is so, it is unacceptable. The policy laid down by the Centre vide their announcement dated 22-7-2019 (enclosed) to safeguard the rights of the Scheduled Tribes in such cases reads as follows:
“By way of safeguards against displacement special provisions have been made for Scheduled Caste and Scheduled Tribes under Section 41 and 42 of the RFCTLARR Act, 2013 which protect their interests. As per Section 41 (1), as far as possible, no acquisition of land shall be made in the Scheduled Areas. As per Section 41(2), where such acquisition does take place, it shall be done only as a demonstrable last resort. As per Section 41(3), in case of acquisition or alternation of any land in Scheduled Areas, the prior consent of the concerned Gram Sabha or the Panchayats or the autonomous District Councils, at the appropriate level in Scheduled Areas under the Fifth Schedule to the Constitution, as the case may be, shall be obtained, in all cases of land acquisition in such areas, including acquisition in case of urgency, before issuing of a notification under this Act, or any other 9entral Act or a State Act for the time being in force. The RFCTLARR Act, 2013 also lays down the procedure and manner of rehabilitation and resettlement”
There are wider issues of public policy that arise in the State handing over land and other natural resources to the Adani Group.
Along with the two large pumped storage projects in Parvathipuram Manyam district, the State Cabinet has apparently decided to allow the Adani Group to set up a similar pumped storage project in Sri Sathya Sai district. From the news reports, it is evident that the said decision was taken in a non-transparent manner.
Already, despite the concerns expressed by me and others, the State had violated the national policy on disinvestment of public equity by selling its strategic equity share in the Gangavaram Port to the Adani Group, without following any competitive bidding procedure, which is prima facie highly improper and violative of the established norms of disinvestment. The same Group has also been allotted a very valuable stretch of urban land in Vizag for setting up a data analysis centre in an equally non-transparent manner. The Adani Group has also acquired 100% ownership and control of the Krishnapatnam Port, where the State has a heavy stake in the hinterland complex, as lands in that area were acquired and handed over to the private companies at nominal prices and the Adani Group would also be a beneficiary.
There have been reports about the representatives of the Adani Group getting in touch with the State officials in the former’s bid to buy the CPSE, the Visakhapatnam Steel Plant, where the State earlier had acquired more than 20,000 acres of valuable land for the CPSE on the ostensible ground that the land would be used only by a CPSE, not a private company.
In other words, the State Government has deliberately or otherwise taken far-reaching decisions to hand over control of its land and other natural resources to the Adani Group, all through highly non-transparent procedures, raising serious concerns of propriety. The manner in which the State has allowed the Adani Group to gain monopolistic control of the natural resources that belong to the people, that too at less than the market prices, violates the Doctrine of Public Trust, attracting the penal provisions of the Prevention of Corruption Act.
Against this background, I demand that the range of decisions taken by the State government in favor of the Adani Group be subject to an independent inquiry by a member of the higher judiciary. Such an inquiry should determine the culpability of the officers who are involved in misleading the State Cabinet into taking such imprudent, improper decisions, either by acts of commission or omission, and the culpability of the political executive in granting such largesse to the Adani Group of companies.
If you fail to respond to this letter, I will be constrained to seek judicial intervention.
(E A S Sarma, Former Secretary to Govt of India, Visakhapatnam)
(This article is a letter addressed to Dr Sameer Sharma, chief secretary, Govt of Andhra Pradesh)