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Looking back at magnificent tenure of Justice Sanjay Karol at HP High Court

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Justice Sanjay Karol as Acting Chief Justice of HP High Court

Shimla: The Judge of the Punjab & Haryana High Court, Justice Surya Kant, has been appointed as the new Chief Justice of the Himachal Pradesh High Court. He would be taking the charge soon. Justice Kant started practising law at the District Courts, Hisar, in 1984 and moved to Chandigarh in 1985 to practice at the Punjab and Haryana High Court. He was designated as Senior Advocate in March 2001. He also held the office of Advocate General, Haryana, till his elevation as a Permanent Judge to the Punjab and Haryana High Court on January 09, 2004.

The time is right to look back at the tenure of Acting Chief Justice and the functioning of the Hon’ble High Court in the past year under his leadership.

Justice Karol belongs to Garli village, Tehsil Dehra Gopipur in District Kangra of Himachal Pradesh.

He was born in Shimla on August 23, 1961. He is an alumnus of the St. Edward School, Shimla, and graduated with Honours in History from Government Degree College, Shimla.

He obtained a Degree in Law from H.P. University, Shimla and enrolled as an advocate in the year 1986.

He had assumed the charge of the office of the Acting Chief Justice of the State High Court on April 25, 2017.

India has had many brilliant judges but few amongst them became great. A brilliant judge might know the law to its minutest detail, but a great judge knows ‘justice’ and the spirit that it posses. The road to greatness is paved by compassion, kindness and a seeking for truth. With empathy in heart and sensitivity in mind, Justice Karol has been setting an example for us of how human dignity and compassion is to be practised, not just through his judgements but also through his acts of kindness and compassion in normal life situations.

Justice Karol is greatly admired for encouraging the young lawyers and welcoming them to the profession with open arms. The Hon’ble Justice is also known for his work in public interest litigation since assuming the charge of Acting Chief Justice of Himachal High Court. The greatest change which the Hon’ble judge brought was to accept letters of common people and convert it into public interest petitions, in case, those letters revealed miscarriage of justice and breach of fundamental rights.

In India, the first PIL was filed in the year 1976 – Mumbai Kamgar Sabha v. M/s Abdulbhai 1976 (3) SCC 832. The seed of the PIL was sown by Justice Krishna Iyer through this landmark judgement. Soon thereafter, with the efforts of Justice Bhagwati, the concept of the PIL evolved and developed to a great extent. The courts started accepting letters as petitions if they happen to disclose any violation of fundamental rights and matters of public importance.

Justice Bhagwati once said,

“Public interest litigation is essentially a cooperative or collaborative effort on the part of the petitioner, the State or public authority and the Court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them. The State or public authority against whom public interest litigation is brought should be as much interested in ensuring basic human rights, constitutional as well as legal, to those who are in a socially and economically disadvantaged position, as the petitioner who brings the public interest litigation before the court. The State or public authority which is arrayed as a respondent in public interest litigation should, in fact, welcome it, as it would give it an opportunity to right a wrong or to redress an injustice done to the poor and weaker sections of the community whose welfare is and must be the prime concern of the State or the public authority.”

The importance of strengthening such a practice of Letter Petitions as PILs in a state like ours was absolutely necessary. Himachal has poor people, farmers, and large parts of villages are backward, hence, the judicial process for most of the people in the state is incomprehensible or costly to pursue. This has led to unchecked human rights violations and also large scale unchecked environmental degradation. The Hon’ble High Court in the past year has done extensive work in taking up the fundamental rights and environmental issues of poor and downtrodden, even if they have been addressed by way of letters.

The Acting Chief Justice during his tenure has dealt with issues of public importance and made efforts with the tool of Public interest litigation for the realisation of the dreams of our Constitution. His orders and judgements cover the whole spectrum of issues, such as:

  • Landmark order for ‘right of sanitation’ and directing the state for construction of public toilets at highways
  • A landmark judgement in Directing payment of unpaid salaries of nurses, which was unpaid for months
  • Landmark judgement for removing discrimination against married women in matters of employment
  • Protection of trees through technology, use of RFID, Drones and Satellites
  • Protection of wetlands, the direction was given for the creation of a wetland authority, which facilitated funds to the state from centre
  • Directions for Checking illegal mining
  • Protection of rivers from the illegal running of dams
  • Providing compensation to the families of road accident victims or to families who suffered an act of criminal violence
  • Thinking about hemp and medical cannabis as an alternative source of income to farmers and as a mode to curb drug market
  • Deliberating upon police reforms, directing the installation of cameras in the prisons to check human right violations. Also directing the Advocate general to re-look at H.P police Act and bring it in consonance with the constitution
  • Reforms in the forest department especially the condition of forest guards
  • Several judgements on animal rights issues
  • Several directions for building roads, most importantly monitoring the construction of national highways
  • Several Directions for the protection of the UNESCO heritage sites, including a drive to clean up Shimla-Kalka railway
  • Several directions to tackle the garbage problems in various places in Himachal
  • Several directions to improve the medical facilities in the hospitals

To take up and decide the above-mentioned issues requires a spirit rooted in kindness, empathy and compassion. This kindness was not just limited to judgements but also in the pragmatic handling of real-life situations. During Shimla’s water crisis, alongside high-ranking state and municipal corporation officials, Justice Karol nearly spent all night inspecting operations at the water control rooms to ensure that they were working without any impediments. The court also gave orders that no special treatment be meted out to the VIPs during the time of crisis.

In an another and very recent incident, a milkman who fainted after suffering a seizure in the Lakkar Bazaar of Shimla was saved by the acting chief justice who helped the man reach the hospital in time. Justice Karol got out of his vehicle and directed the driver to take the man to the hospital immediately. He then simply begun to walk. It was an example of humbleness for those taking perks of the VIP culture.

We spoke to a High Court lawyer, Advocate Deven Khanna, who as an amicus has assisted the court in various matters.

The most significant work of the acting chief was the focus on Access to justice. Without the ‘access’ or means of accessing justice, the constitution is redundant. Once the constitution is triggered, then only fundamental rights can be realised. Public interest Litigations is the tool that the Acting Chief has used to democratise the judicial process. The court has essentially said that justice does not only belong to the rich people, corporates and governments (who take up most of the litigation time in courts), it primarily belongs to the poor. The poor can write a letter or get legal aid or get assistance from an amicus currie, who on his behalf, will pray to the court on a violation of his most basic rights,

Deven told Himachal Watcher.

It is said that Article 32 was the most favourite article of the great B.R Ambedkar. He said that it is the soul of the constitution. When he was referring to Article 32, he actually meant ‘access to the courts’ in case fundamental rights are violated. Article 32, 226 and letter petitions are essentially the same and are the heart and soul of the constitution. It was visible in practice in the working of the Hon’ble Acting Chief Justice during last one year

, he added.

When the state has failed to protect the rights or has failed to do its duties, its the duty of the Superior Courts to step in and make sure that law of the land is not sabotaged and common man or the environment is not jeopardised,

he further added.

More about Justice Sanjay Karol

Including Hon’ble Supreme Court of India, he practised in various Courts in Constitutional, Taxation, Corporate, Criminal and Civil matters. He had appeared as Counsel in the Inter-State water Dispute (BBMB Project) in the Hon’ble Supreme Court of India.

He also discharged the constitutional duties as the Advocate General of Himachal Pradesh from 1998 to 2003. In the Year 1999, he was designated as Senior Advocate.

He remained on the Senior Panel for Central Government, Supreme Court of India. He was elevated as the Judge of the High Court of Himachal Pradesh on March 8, 2007. He also remained the Chairman of State High Court Legal Services Committee

Presently also discharging statutory duties as Executive Chairman of H.P. State Legal Services Authority and a member of the Board of Governors, Himachal Pradesh Judicial Academy.

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Report bursts myth about ‘big encroachers’ in Himachal’s tribal areas

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Big encroachers in tribal himachal

Shimla-Himdhara Environment Research and Action Collective in collaboration with Zila Van AdhikarSamiti, Kinnaur, released its report titled, ‘Who Gains from the Forest Rights Act, 2006?’. The study conducted in the tribal district of Kinnaur, assessed 1351 Individual Forest Right (IFR) claims of 22 Forest Rights Committees (FRC) in the district where 132 FRCs have been formed.

The study found that 96.5% of these IFR claims were for less than 10 bighas of land and only 6 claims out of 1351 claims being of more than 20 bighas.

Jiyalal Negi, president of Zila Van AdhikaarSamiti, Kinnaur said,

The data shows that people are making genuine claims of land under their occupation mainly for their survival and not for grabbing land as is the notion that the administration holds.

The study looked at the landholding data of 417 claimants of the total 1351 showing that 67% of these have existing private land holdings under 10 bighas.

Negi further added that close to 26% of the claimants are in the category of Scheduled Castes, whereas they form only 17.53% of the total population.

The report also revealed that the average size of land claimed under FRA by the SC community is slightly more than the average land claimed by ST community. Prakash Bhandari from Himdhara Environment Collective emphasized,

If the IFR claims of 417 SC claimants studied are recognized, then the average land holding size would increase from 8.86 bigha to 11.47 bigha,

showing that a fair and just implementation of this Act could play a critical role in reducing land ownership inequities in the region.

The Forest Rights Act, 2006 was legislated to support the survival of tribal and other communities living in areas where dependence on ‘forest lands’ is high. The act recognizes the individual as well as community uses of forestland dependent communities.

The study by Himdhara Collective was carried out to challenge certain arguments posed by the administration in Kinnaur as well as some other areas, questioning the individual claimants on the grounds that they belong to already landed communities and would be grabbing more land.

With such arguments dominating political and bureaucratic discussions, the implementation of the Act has remained poor, where only 129 individual claims have been approved across the state

, said SonamTargay and Rigzin, representatives from Lahaul-Spiti.

The representatives from both districts recommended that it is high time that the pending files with State and District level Committees be expedited. They also emphasized on the urgent need of training that should be conducted for both the administration and political representatives to remove misconceptions about this very important act.

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Environment

Watch: Baddi’s Kenduwal dumping yard exposes hypocrisy over Swachh Bharat

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Baddi solid waste management plant

Solan: The government agencies in Himachal Pradesh are quite infamous for disrespecting court orders, especially those relating to environmental protection. This time, we have a case where the local civic body first created an illegal dumping yard on a site selected and cleared for an integrated waste management facility and now covering it with soil and mud after the matter reached the State High Court.

In fact, the government does only what the court orders it to do after activists or the common people file petitions. There is a very clear hypocrisy going on over the Swachh Bharat campaign, which is often used to gain political mileage.

So far, the government has given no sign about being serious when it says, “The government is committed to protect and preserve the environment and ecology of the State.”

The ground-level situation of Solid Waste Management (SWM) in Himachal Pradesh can be best used to demonstrate this hypocrisy by both the current and succeeding governments and the public itself. There is no limit to the callousness of the government agencies at both local as well as the state levels.

Baddi MC waste

If we take up a particular case, then Baddi-Barotiwala-Nalagarh area in Solan district is perhaps in the worst state. The Municipal Council of Baddi and BBN Development Authority (BBNDA) are responsible for the collection and scientific disposal of waste generated in the area. Both agencies had joined hands with a proposal of managing waste disposal in the BBN area.

The MC and BBNDA were supposed to establish a facility where collected waste could be disposed of scientifically. They had obtained the clearance for the same on August 13, 2015, and were allotted 42 bighas and 13 Biswas of land in Kenduwal.

However, as expected, the facility never came into existence. Instead, the MC and BBNDA began dumping MC waste at the selected site and turned it into a big open dumping yard. Within a couple of years, the life of the locals residing very near to this illegally created dumping site became a hell as every day they faced foul smell, flies, mosquitoes.

The nearest house is located merely at a distance of 30 meters while the Sirsa river floodplain is not far at about 100 meters from the dumping site. The locals, supported by an environmental group Himdhara Collective, approached the local civic body and the district administration several times with their grievance. None of the two disappointed the locals and, as usual, didn’t move a muscle.

About 1200 villagers wrote to the President of India after they were disappointed by their own government. 

The State Pollution Control Board confined itself to issuing repeated notices to the local bodies to solve the grievance of the locals. While the MC and BBNDA didn’t care about these notices, the HP PCB did not proceed to take proper action.

Very recently, the matter reached the State High Court pleading for justice.

In the interregnum, we direct that no garbage shall be dumped into the land owned by the present petitioner or dumped at any other site, save and except, in accordance with law. We further direct the Senior Environmental Engineer of respondent No.3 to visit the site and after inspecting the same, submit his report with regard to the compliance of the statutory provisions,

a bench of then Acting Chief Justice Sanjay Karol and Justice Ajay Mohan Goyal had said in its order passsed on October 4, 2018.

However, both responsible bodies violated these orders as well and continued to dump garbage at the same site. The villagers captured videos of the same and wrote an application to the Superintendent of Police, Solan. The SP was informed regarding the violations of the court orders.

Letter to the SP Solan by Kenduwal petitioner

Letter written by villagers to SP Solan

The Court directed the Senior Environmental Engineer of the HP PCB to file a status report regarding this matter within four weeks

As per the report of the Chief Engineer dated October 15, 2018, the MC, Baddi and BBND hardly collect 30-40 percent of total solid waste generated, which is about 50 tons per day in this case. The collected waste is dumped at Kenduwal while remaining can be found scattered near the BBN area.

HP PCB has repeatedly directed the Municipal Council and BBNDA to dispose of the waste in a scientific manner in accordance with the provision of SWR,

2016, the report submitted to the court said.

The Municipal Solid waste is being collected unsegregated and transported to MSW site at Kenduwal where it is being dumped unscientifically. Most of the time it remains exposed in an open atmosphere and sometimes covered with soil layer, which is a breeding place for flies, mosquitoes, rats etc. The nearest human habitation is a house located at about 30 meters from the boundary of the dumping site, whereas the flood plain of river Sirsa is about 100 meters away from the site,

the report said.

The court concluded that despite having a clearance for the proposed facility to dispose of this waste scientifically, the MC and BBNDA failed to perform their duties.

We have gone through the contents of the report and are satisfied that prima facie, Municipal Council, Baddi, as well as Baddi-Barotiwala-Nalagarh Development Authority (BBNDA), have failed to perform their duties towards collection of solid waste and its dumping in a scientific manner at the MSW disposal site at Kenduwal, for which requisite clearance has been already granted by the Ministry of Environment and Forests,

a Bench of Chief Justice Surya Kant and Justice Ajay Mohan Goel directed the MC and BBNDA.

The court also directed the local agencies to take immediate action on the report of the Senior Environmental Engineer.

We direct both the aforesaid Agencies to immediately act upon the report of the Senior Environmental Engineer and submit their respective compliance reports within four weeks. Any delay or defiance will be viewed seriously,

the court directed the MC and BBNDA.

However, the entire waste at the dumping site is being buried under mud and soil.

MC Baddi/BBDNA may be asked to transport the waste as per the past practice of disposing the waste to the Jaypee Plant in Sector 25 of Chandigarh or to Mars Envirotech Ltd. Lalroo (Dera Basssi), Punjab or setting up of ward level compositing/shredding machines till the erection, commissioning and time-bound setting up of Solid Waste Management facility at Kenduwal Baddi, for the cluster of Baddi-Barotiwala-Nalagarh area,

the report submitted to the court said.

According to the 2011 Census, the total pollutions of the Baddi MC and BBNDA area were 29911 and 29293 respectively while the total amount of waste generated per day was 25.50 tons and 20.30 tons respectively. The number of migrant labourers or workers from other states was not included in this Census. The populations in both the areas have increased by 2018, which implies growth in a waste generation too. But the responsible government bodies, as well as the district administration, are completely blank when it comes to the chapter on waste management. The Solid Waste Rules, 2016, do exist but only in papers.

The report of the PCB Environmental Engineer aptly proves it.

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Watch: Tribals in Kinnaur village blow off HPPCL, police allegedly trying to fool them over hydro project

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Lippa villager tribals vs hppcl

Kinnaur: The Lippa Village in Kinnaur is one of the several villages including Rarang, Pangi and Telang that are facing pressure from the Himachal Pradesh Power Corporation Limited (HPPCL) to allow them to start construction work on the 130 MW Kashang Stage II and III power project despite a stay given by the National Green Tribunal (NGT) in May 2016.

As per the villagers, the NGT had held that no objection certificate should be obtained from the affected village gram sabhas before issuing a forest clearance. However, the gram sabhas never gave any NOC as their individual claims under the Forests Right Act 2006 were not settled yet. However, the HPPCL claims it possesses the NOC given by the villages and trying to re-open the construction work using various pressure tactics, allege the villagers. The villagers question the Corporation from whom did it obtain the NOC.

On October 9, 2018, the HPPCL staff came to Lippa village with a heavy local police force to discourage villagers from protesting. What requires attention here that the district administration and the local police, thus the State Government, are assisting the Corporation in its bid to violate the court orders. Moreover, as seen in the video, a local police official was also seen arguing in support of the Corporation with the villagers when it wasn’t actually his job.

They definitely underestimated the villagers considering them mere bunch of tribals and tried to fool them.

However, they faced severe protests and demonstrations from the locals, united under the banner Paryavaran Sanrankshan Sangharsh Samiti. Eventually, the HPPCL staff and police force had to retreat after villagers stopped and reasoned with them.

Another fact that needs attention here is that the villagers reasoned with them legally. They were aware of all proceedings of the court as well as its directions to the Corporation. The Corporation and the police tried their best but couldn’t confuse villagers by flashing papers signed by the Deputy Commissioner of the Superintendent of the Police.

The work on the project cannot be started by HPPCL on account of the non-completion of the process under the Forest Rights Act 2006 in the area,

said members of the Samiti.

Watch Video

The National Green Tribunal on May 4, 2016, directed the Ministry of Environment and Forests and the State Government of Himachal to place the forest clearance proposal in front of the affected Gram Sabhas for their perusal. The judgment was passed in an appeal filed by Paryavaran Sanrankshan Sangharsh Samiti Lippa against the forest diversion for the said project.

Lippa village picture

Lippa Village in Kinnaur, Photo: Manshi Ashar

The appeal was made on the grounds that HPPCL had violated the provisions of the FRA Act, which require a mandatory NOC of the Gram Sabha of villages to be affected by the diversion of forest lands for the project.

The judgment had concluded that “the Gram Sabha shall consider all community and individual claims” in the process bringing under it the cultural, religious, environmental and livelihood impacts caused due to the loss of forests and water sources.

The process of filing claims on forest land under the Forest Rights Act was initiated by the Forest Rights Committee of Lippa, formed for verification of the claims in the year 2016 itself. As many as 47 individual claims and one community claim were sent to the sub-divisional level committee (SDLC) Pooh, the Samiti said. However, the process of settlement under FRA 2006 has been slow due to the apathy of the administration and the State Government, the Samiti alleges.

It said that last month the District Level Committee has recommended the Community forest rights claim of Lippa whereas the Individual claims were not yet recommended. No specific objection or reason has been stated by the SDLC held on August 31, 2018, as to why the individual claims were being returned and not recommended. The people are in the process of filing petitions to the DLC requesting the SDLC to state the reasons based on which they have not been recommended.

Meanwhile, the Samiti alleges, the company, instead of waiting it out till this process is complete has been pressurizing the villagers to allow them to start work on the project in the area for which the forest rights claims have been filed.

In 2017, the State of Himachal Pradesh falsely contested in front of the NGT that despite sufficient time the claimants (residents of Lippa) have not submitted their claims and have not been cooperating, said the Samiti.

Following submissions from the Paryavaran Sangharsh Samiti that the claims were already under process, the NGT put on record in December 2017 and January 2018 that individual and community claims had, in fact, had been filed by the villagers.

It needs to be noted that the final judgment and subsequent orders of the NGT clearly state that the project proponent can approach the village for the consent of Lippa gram sabha on forest diversion for Kashang integrated project stage I and III only when the process of settlements of rights under FRA gets completed

Despite this, the HPPCL has used various pressure tactics on us to allow construction work. Various visits have been made by project authorities to the village to misguide and intimidate the people and begin work. On August 24, 2018, the Superintendent of Police, Rekong Peo issued a letter stating that the project proponent would have to be given police protection as they had completed all legal requirements as per the NGT orders. This is completely false,

said the members of the Paryavaran Sangharsh Samiti.

We are extremely troubled that instead of waiting for the process under FRA to be completed and following the spirit of this act of the Parliament as well as the NGT order, the company is misleading the police and seeking police protection against the interests of the community,

the members further said.

The Paryavaran Sangharsh Samiti Lippa also sent a counter to the Superintendent of Police with a point-by-point response on the false objections raised. The counter also stated that “in case of any violation we will be forced to file a complaint under the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 and Amendment Act, 2018”.

The Section-3(g) of this act states that wrongfully dispossessing a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interfering with the enjoyment of his rights, including forest rights, over any land or premises or water or irrigation facilities…by a non-SC-ST person (without consent or against will) is a punishable offence.

Despite that, the police entered the village on October 9 to pressurize the villagers. However, after the protests and detailed deliberations, the official team and police were forced to return.

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