THE ANATOMY OF A SOLAR LAND GRAB – Report of a Fact-Finding Committee

Report of a Fact-Finding Committee relating to Human Rights Violations, and Environmental and Social Impacts of 15 MW Solar Power Plant being established by Azure Power at Mikir Bamuni Grant Village, Nagaon, Assam

Executive Summary

Karbi and Adivasi farmers belonging to Mikir Bamuni Grant village in Nagaon district of Assam reported that about 93 acres of the land they were cultivating was taken over forcibly during 2020 by Azure Power Forty Private Limited, a subsidiary of international power corporation Azure Power Global Ltd. The farmers reported that their land was taken for establishing a 15 MW solar power plant by the company. In the process, ripened paddy crop raised on over 200 bighas of land was razed to the ground on 8th October 2020 by the company. Villagers report that the local police and district authorities backed this forced dislocation of the farmers and forcible takeover of their lands. When villagers resisted this land grab, as they put it, 14 of them were taken into custody and jailed for over 10 days. Such acts of violence against the villagers repeated subsequently as well with increased police brutalities, attacking villagers due right to the lands they were cultivating and their human rights, and favouring the company’s objectives.

This conflict about land in Mikir Bamuni Grant village has drawn attention to the following allegations made by the villagers:

a) The manner in which the company has taken over the land;
b) That the company’s takeover of the land is illegal;
c) That villagers’ right to the land was never settled before this takeover;
d) That the transfer of the land was in gross violation of the Principle of Free, Prior and Informed Consent, and various national and regional laws, as also international norms;
e) That the police and district authorities participated in forcibly snatching lands cultivated by the villagers, and illegally vesting them with the company;
f) That the entire campaign of land grab was marked with police excesses;
g) That the land where the company is setting up the solar power project is part of an active elephant corridor, hence ecologically sensitive;
h) That environmental and social impacts of the project were never undertaken prior to siting the project in this village:
i) That all of this does not constitute sustainable development of energy as envisaged in Indian and International law.

To establish facts relating to these questions, and also other concerns that would arise in the process of enquiring into the issues involved, a Fact-Finding Committee (FFC) was constituted by Delhi Solidarity Group on the request of the project impacted villagers. The FFC visited Mikir Bamuni village to meet with the villagers and also with various officials of district and state government agencies in Nagaon district during 27 to 29 January 2021. Efforts were also made to meet with company officials and anyone else who were willing to meet with the FFC. On the basis of such evidence and narratives, the FFC has produced this report.

The fundamental issue for consideration of the FFC are based on the allegations of local villagers that the company secured access to productive and fertile paddy fields which were cultivated by the villagers for generations, and that this was done through unfair, illegal and violent means. Besides, the villagers report their resistance against being dispossessed of their lands, the very foundation of their existence, was powerfully resisted by the company in connivance with police and revenue officials. The villagers allege that the officers of the State worked in a manner that demonstrated an absolute bias favouring the company, even when it was fully aware that this was illegal. In the process, various human rights abuses resulted, the villagers report. They have further reported that they have been victims of egregious human rights excesses.

The primary bone of contention in this case relates to rights over the land in question. According to Azure Power, as well as local revenue officials, the land under question was granted to a zamindar (landlord) family as a Fee Simple Grant, and the descendants of the zamindar preferred to sell it to the company to establish the solar power project. Circle Officer of Samaguri Revenue Circle, as also the Deputy Commissioner (DC) of Nagaon district, stated to the FFC that no cultivation has taken place on this land since 1986. Thus, making a claim that no rights relating to tenant farmers were violated. As for the crops razed to the ground in October 2020, the Deputy Commissioner claimed people began to cultivate after the land in question was secured by Azure Power.

Mikir Bamuni Grant Village residents contest this version of the Deputy Commissioner and Circle Officer. They assert Karbi and Adivasi farmers have been cultivating these lands for generations. They claim their ancestors cleared these lands in the first place to make them cultivable. They assert that the land was diverted illegally to the solar power project of Azure company, and in the process, the rights of farmers cultivating the land was violated. They unequivocally state that transfer of land to Azure constitutes a corporate land grab assisted by key agencies of the Assam Government. From the visit of FFC to Mikir Bamuni Grant Village, it is abundantly clear that the land in question has been systematically cultivated for generations, as is the case with land everywhere in that area. This report of the FFC speaks specifically to the situation in Mikir Bamuni. But it also takes the opportunity to highlight the serious, adverse, and irreversible implications of promoting solar power projects in cultivated, populated, and ecologically sensitive areas.

Mikir Bamuni Grant Village And The Overall Push For Solar Power Generation In Assam

Following the ambitious proposal of Prime Minister Narendra Modi to generate electricity from solar power, as part of his 450GW power production from renewables by 2030, the target for renewable energy production by 2022 is 175GW. As a result, various state governments have promoted a variety of schemes to promote renewable energy projects with an emphasis on tapping solar energy. Encouraging private sector participation in solar power project development is a core part of this strategy.

Assam has through its Solar Energy Policy 2018 pitched for the development of 590 MW of solar energy development by 2020. However, as per a recent response to a question raised in Parliament, the state is planning to exploit far more of its renewable energy potential – to the extent of 14.4 GW. Of which, 13.7 GW is proposed from solar energy, largely by promoting solar parks of 50 MW capacity, and across the length and breadth of the State. This information was tabled in Parliament by Union Minister for Renewable Energy R K Singh who also said the state plans to develop this solar capacity on “barren or fallow land of farmers”.

The Minister’s statement, the FFC finds from its visit to Mikir Bamuni, is in contradiction to the policies of Assam state which specifically list in its Solar Energy Policy 2018 that solar power projects would only be developed on barren government land. As the FFC has found, the land on which Azure is developing a solar project constitute fertile paddy fields. As is evident from Assam Land Policy 2019, the task of determining if the quality of land is fit for farming or fallow is the outcome of due process that involves a Land Advisory Committee, which in this case has not been followed.

Azure Power Forty Private Ltd. has been accorded clearance to develop 90MW of solar power by Assam Power Distribution Company Ltd (APDCL). Of this allocation, the company has chosen to develop a 15 MW installed capacity solar power project over 93 acres of land at Mikir Bamuni Grant village in Nagaon district. Villagers have reported, and the FFC has confirmed, that the lands for this project have been secured illegally denying local indigenous communities their due right over the land. Besides, the project has been developed on the basis of a campaign of violence that includes systematic abuse of human rights and violation of environmental, land use planning and social justice norms.

From the manner in which the solar power project at Mikir Bamuni is promoted, it is highly likely that the 15 MW solar project of Azure is only the beginning of a massive expansion of such projects in the region. Development of such electricity generation infrastructure requires massive investments in power evacuation corridors, and such heavy capital investment would result in more such projects being developed to offset the costs of the infrastructure.

Given that the Mikir Bamuni Grant village is part of a region of Nagaon that is considered vulnerable to flooding, is ecologically sensitive and supports high densities of sustainable livelihoods, it begs the question if such risks have been factored before the district authorities approved this project.

Composition Of The Fact-Finding Committee (FFC)

Prafulla Samantara is the recipient of the Goldman Environmental Prize 2017 – Asia. He is also an Advisor of National Alliance of People’s Movements (NAPM), an alliance of more than 250 people’s movements and organisations.

Bhargavi S. Rao is the Deputy Director of Center for Financial Accountability (CFA), an organisation working vastly on accountability mechanisms and finance aspects of various projects, financial institutions, and critically examines the social and environmental safeguards and impact of development finance over the community. As Trustee of the Environment Support Group, Bangalore she has engaged in several issues and concerns relating to environmental and social conflicts.

Leo F. Saldanha is Coordinator and Trustee at Environment Support Group. He is actively engaged in various issues and concerns relating to environmental governance and has vast experience in engaging with legal interventions on complex ecological and social concerns across India, and several parts of the world.

Amit Kumar is a researcher with focus on land and environmental laws, industrial corridors, mega infrastructure projects etc. He is associated with Delhi Solidarity Group.

Fact Finding Objectives/Terms Of Reference

1. To inquire into allegations of illegal takeover of land for setting up of solar power plant by Azure Power Forty Pvt Ltd in Samaguri Revenue Circle of Nagaon district, Assam.
2. To determine the legal status of the land in question and to examine if legal procedures were followed in securing the land by Azure Power Forty Pvt Ltd.
3. To examine the role of police and paramilitary in light of allegations of State repression and brutality against local communities.
4. To understand the nature of the project (solar power plant), the terms of its establishment, obligations of the company and of the state, and potential impacts of the project.

In arriving at the facts and analysis that this report contains, and also in developing the findings and recommendations, the FFC has followed the following steps:

1. Chronology of events relating to the Mikir Bamuni Grant land conflict is provided in Annexure A.
2. The timeline of the FFC’s work, who they met with and communicated with, during the visit and also later, is at Annexure B.
3. Summary of key conversations with State officials and local community members is provided at Annexure C.
4. Compilation of statutes, policies, notifications, orders, etc. that have implications to the issue are at Annexure D.
5. A press release made by the FFC on the basis of prima facie findings in a press conference held on 28 January 2021 at Nagaon, is at Annexure E.
6. Collation of key media reports relating to conflicts resulting from the transfer of Mikir Bamuni Grant land to Azure Power Company’s proposed Solar power project. A compilation is available at Annexure F.

Mikir Bamuni Grant Village And Conflicts Over Lands

Publicly accessible documents reveal that Mikir Bamuni Grant Village consists of lands that were a part of a Fee Simple Grant, a special kind of land tenure scheme created by Britishers in the 19th century to promote special cultivation (especially Tea). Tea, however, was never cultivated on these lands of the village. So, villagers of Mikir Bamuni converted these lands, which included forests and wetlands, into paddies. Those now in their 40s and 50s narrate how the village lands were brought under paddy cultivation by their grandparents’ generation.

Such cultivation is extensive in this village and across this region, and to this day. This the FFC found quite evident. Vast tracts of flat paddy fields are surrounded by thickly forested hillocks. During two of the three days when the FFC visited Mikir Bamuni, elephants went through the village and surrounding paddies, clearly indicating the village and the area around is part of an active elephant corridor.

Villagers of Mikir Bamuni Grant are protected under the Assam (Temporarily Settled Areas) Tenancy Act, Khatians[1] dating back to the 1980s reveal that the villagers and their forefathers are listed as occupancy tenants. This law in particular, and other laws as well, recognize and protect the tenancy rights of cultivators. These laws require that a variety of detailed procedures must be followed for alienation of any tenancy rights over the land, for any purpose. Such laws, and also the Assam Land Policy 2019, make it abundantly clear that such lands must not be taken away from the tenant cultivators in any illegal and unjust manner. Under the Tenancy Act particularly, occupancy tenancy is an inheritable right and includes the right to continue cultivation undisturbed except by following the due process of law. Dislocation and displacement of cultivators can only be done following the grounds for an ejection that are laid out in Section 51 of the Tenancy Act.

The conflict that has emerged in Mikir Bamuni is that Azure Power has taken possession of the Grant lands by entering into a buyer-seller agreement with those who claimed were the earlier landholders or their descendants, and who claimed that there was no conflict or encumbrance involved regarding ownership and titles. Thereafter, the company went on to establish a solar power plant over an estimated area of 93 acres.

Villagers allege that their tenancy rights to these very lands were never settled by State Revenue authorities as per law and that even when they possess Khatians that proved they were cultivating those very lands. The existence of the khatians also meant it was simply not possible at all for any trade and exchange of titles of the said lands unless the claims of rights over these lands were settled first and foremost. The villagers further state all land transfers were done on the basis of false reports of the Sub-divisional Agriculture Officer who claimed these lands were uncultivated over the past 10 years.

On careful review of various documents, court proceedings, field observations, and interactions with various community members and state officials, it is evident to the FFC that transfer of land to Azure Power was carried out in violation of key provisions of Assam Fixation of Ceiling on Land Holdings Act, 1956, Assam (Temporarily Settled Areas) Tenancy Act, 1971, Assam Land Revenue Re-Assessment Act, 1936, and is contrary to the Assam Land Policy, 2019 and also the Assam Solar Policy, 2017. Further, the claim that the land has not been under cultivation for 10 years appears to be grossly untrue.

The Census data from the past three decades establishes that the region, including the Mikir Bamuni village, has been in continuous cultivation. The village, as has already been highlighted earlier, is part of an active elephant corridor. This is also reported in ‘Gajah, Securing the Future for Elephants in India’[2], a report produced by the Union Ministry of Environment, Forests and Climate Change (MoEFCC).

Key Findings

The FFC, on the basis of detailed appraisal of the facts of the matter as reported, concludes:

1. It is beyond any doubt to the FFC that the impacted communities constitute Karbi and Adivasi peoples who have lived in that region and who should have been direct beneficiaries in terms of securing the right to land that they cultivated, which was not only denied to them but also such denial has amounted to an egregious attack on their fundamental right to livelihood, which is an integral part of the right to life.
2. It is evident from the facts reported here that Azure Power has secured land for the solar power project at Mikir Bamuni Grant village by means which are in the gross variance of law.
3. In accessing land for the said project, the company has been assisted by district and state authorities as well as police in ways that can be described as extra-constitutional, and the direct result of which has been a frontal attack on the fundamental rights of several families of Mikir Bamuni Grant village.
4. The FFC finds that these affected families were the rightful claimants of the said lands as per various progressive land-related laws and policies passed by the Assam state over a period of time intended to secure the right to land by the tiller of the land.
5. From the evidence gathered by the FFC, it is clear that cultivators of the land where Azure Power is building the solar power plant were evicted in ways that can be described as blatantly illegal and based on ruthless abuse of police power.
6. The FFC finds that such abuse of police power was repeatedly employed against the villagers with the intent of suppressing their rightful assertion of their right to land and was actively supported by the district authorities and the state government even when such excesses were widely reported.
7. That such police excesses and the deliberate neglect of the assertions of the communities of their right to land-based on their ongoing cultivation of the said lands in the context of the progressive laws and policies of Assam state, constitute an act of brazen collusion between the district authorities, revenue authorities and police, with the company, in order to promote the profit-making interest of Azure Power.
8. The Forest Department, fully aware of the nature of the land being part of a highly active elephant corridor, especially given the fact that a death was reported in 2017 from the very lands in question due to conflicts with elephants, failed to take due action necessary to declare the region as an active elephant corridor even when it has been indicated as such in the ‘Gajah, Securing the Future for Elephants in India’ Report.
9. The Solar Energy Policy and Land Policy of Assam unequivocally state that prime farmland should not be used for solar power projects. Yet, in this case, there is a blatant disregard of these policies which were adopted as recently as 2018 and 2019.
10. The example of Mikir Bamuni Grant is yet another evidence of the adverse implications of the MoEFCC blatantly disregarding a specific direction of the NGT to review the prevailing policy of exempting solar parks and projects from the purview of the EIA notification.
11. Such exemptions encourage companies such as Azure Power to project their projects favorably even when they are environmentally and socially damaging.
12. It is particularly worrying that because such companies are involved in promoting the production of renewable energy, their exemption from environmental and social review guarantee a pass-through of the applicable regulatory process. This accommodates corporate behaviours that blatantly violate various laws, principles, and processes meant to secure human rights and the environment, especially of indigenous people and natural resource-dependent communities.
13. It is extremely disconcerting to note that the high office of His Excellency the Governor of Assam extended support to Azure securing access to Mikir Bamuni land in blatant violation of various progressive land laws and policies of Assam which were brought into effect following long years of struggles by landless farmers and indigenous communities.
14. In securing land for the Azure Power project, the FFC has shockingly discovered that there have been active efforts to destroy the social fabric of a small village by the company employing key villagers to misinform innocent farming communities with the intent of destroying their right to land, which effectively amounts to destroying their right to life and livelihood. This has resulted in causing a lack of trust amongst a small community of people who looked out for each other and has left them suffering in a climate of suspicion.

Based On This We Recommend:

1. The government of Assam must suspend all activities pertaining to Azure Power’s Mikir Bamuni solar power project and initiate steps to close it down, recover the land, restore it to the state it was prior to the construction of the plant. The State Government must then proceed to take necessary steps to vest the land back to the tillers who were cultivating the land. The cost of this operation must be borne by Azure Power in consonance with the ‘Polluter Pays’ principle.
2. The Chief Secretary of Assam Government should direct the Deputy Commissioner of Nagaon district to initiate appropriate action in acknowledging the due rights of the tillers to the land that is now in possession of Azure Power, in accordance with the Assam Land Policy 2019, Land Ceiling Act, Tenancy Act, etc.
3. Those who have suffered due to the actions of the Azure Power in Mikir Bamuni must be compensated for loss of livelihoods and also abuse of their human rights over the past two years. All cases filed against villagers of Mikir Bamuni must be withdrawn post haste.
4. The Home Secretary of Assam must initiate an enquiry into the police excesses that have been reported by villagers of Mikir Bamuni who resisted dispossession from lands they have been cultivating.
5. The victims, particularly women and children, must be duly compensated and steps are taken to ensure that the trauma they have suffered is attended to with the necessary medical and psychological attention.
6. An inquiry must be initiated by the Principal Secretary of Revenue and Disaster Management Department, Assam into the manner in which district revenue authorities have denied villagers their due right to land, and to also fix accountability of all those officials who are involved in fraudulently claiming the record of lands were not available, that the lands were not being cultivated, that the lands do not constitute ecologically sensitive regions. This is important as their opinion was material to formulating decisions which enabled Azure Power to illegally claim ownership of grant land in blatant violation of various progressive
   laws and policies.
7. The Principal Secretary of Environment and Forests, Assam must initiate steps to declare the region as ecologically sensitive, and also an area which is part of an active elephant corridor, so that the region is protected from such developments now and into the future.
8. The Principal Secretary of Agriculture, Assam must initiate action against the district agricultural officers, who were involved in fraudulently claiming that the Mikir Bamuni grant lands have not been cultivated for decades.
9. In light of the fact that the Hon’ble District Judge, Nagaon district has prima facie held that the lands were being actively cultivated, all efforts must be invested to ensure that the rightful claims of the tenants who were cultivating the lands are restored with urgency. Till such time that they reclaim their fundamental right to livelihood, the State of Assam must ensure that Azure Power will compensate them for loss of livelihood.
10. The MoEFCC must immediately withdraw its circular[3] dated 30.06.11 which exempts utility-scale solar parks from the purview of the EIA Notification 2006 and ensure that all such projects, as also other renewable projects such as hydro and wind power development, are subjected to the comprehensive environment and social impact assessments and regulatory approvals.
11. The notification exempting solar power projects from complying with The Assam Agricultural Land (Regulation of Reclassification and Transfer for Non- Agricultural Purpose) Act, 2015 must be immediately withdrawn. All projects which have benefited from this notification must be reevaluated comprehensively
    under this law.
12. All renewable power projects must be integrated into the District Development Plan that is required to be developed by the District Planning Committee in accordance with Article 243ZD of the Constitution of India. In so doing, the criteria laid out for the diversion of biodiversity-rich farmland, commons, wetlands, forests, etc. must comply with the provisions of the Biological Diversity Act 2002, Environment Protection Act 1986, Forest Conservation Act 1980, Wildlife Protection Act 1972, Forest Rights Act 2006, etc.
13. The prevailing projection of solar power projects as being environmentally and socially benign must be comprehensively revisited, especially by the Ministry of New & Renewable Energy (MNRE) and the International Solar Alliance (ISA). Steps must be taken to immediately issue guidelines to ensure that the environmental and social impacts of such projects are critically appraised and that their development is in consonance with the principle laid out in the Rio Declaration 1992, Convention on Biological Diversity 1992, Convention on Human well-being, UN Declaration on the Rights of Indigenous Peoples 2007, ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), etc.
14. The investors and financiers of Azure Power must immediately revisit their decision to support the company’s development at Mikir Bamuni Grant village and take such steps as is necessary to ensure that the lofty principles that the company claims to adhere to are met. In the event that it is found that such compliance standards have been violated, as well as safeguards and guidelines of the investors, action must be initiated to withdraw investments made in the project and also revisit investments made in the company.

To read the FULL REPORT, click here