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By Venkatesh Nayak*
A problem commonly raised by participants at our training workshops on the right to information (RTI) held across Jammu and Kashmir (J&K), over several years, is the frequent and long power outages they experience, almost on a daily basis. Having sojourned through several parts of the Kashmir valley, apart from far flung areas like Kargil, during the last few years, I experienced, first hand, these long periods of power supply breakdown. LCD projectors and public address systems would stop working abruptly in the middle of a workshop due to power outage and one had to resort to other methods of teaching RTI procedures. In Kargil, a major complaint that youth participants voiced at our workshop held last year was the increased frequency and duration of power outages during the exams season.
During a visit to Srinagar, earlier this year, when the State was placed under Governor’s rule and negotiations for installing a new government were still on, I came across media reports about the efforts made by the J&K Government to “buy back” some of its hydro power projects from the Government of India (GoI). Upon researching this issue, it turned out that the Group of Interlocutors for J&K appointed by the Union Government, in October 2010, to hold discussions with all sections of opinion in J&K and identify the political contours of a solution and the road map towards it, had looked into this issue.
In 2012, this Group recommended the transfer of power projects under the Central Government’s control back to the State as one of the several “Economic and Social Confidence Building Measures” required to reach the eventual solution. Strangely the Interlocutors’ Report has disappeared from the webpage of the Union Home Ministry where it was hosted earlier. Google did not throw up any search result for its new “home”. Meanwhile the full text of the report may be accessed on the website of FirstPost.com.
Further research showed that in March 2015, while replying to a question raised by the MP elected from Srinagar, in the Lok Sabha, the Union Minister of State for Power (independent charge) stated as follows:
“The Task Force on the development of Jammu & Kashmir recommended transfer of certain Power Projects of NHPC including Dulhasti Hydroelectric Project (HEP) to State Government. The recommendation was considered by the Union Government and not accepted as the power generated from the project has already been allocated to various States including J&K. Also the transfer of the project is likely to entail considerable financial, non-financial and legal problems.”
To a lay reader, the Minister’s reply conveys a sense of finality on the issue of buyback of hydel projects by the J&K Government. However, my recent RTI intervention seems to indicate otherwise.
However, the NHPC’s stance that Section 8(1)(d) of the Central RTI Act is attracted to the information request, is facile, to say the very least. That exemption is available only for a “third party” and that too only for matters of commercial confidence (and not merely commercial interest) where the disclosure of information would harm its competitive position. A public authority which receives the RTI application cannot use this clause to protect its own information under Section 8(1)(d). A public authority cannot be both the ‘second party’ and the ‘third party’ to one RTI application (where the first party is the RTI applicant and the initiator of the cause of action).
Further, the Central Public Information Officer (CPIO) has only parroted the reply received from another officer without applying his mind to the contents of the reply. As the designated CPIO, it is well settled now that despite any response that he may receive from another colleague regarding a pending RTI application, the decision to disclose or not is his own. The case law on this issue is well developed. That responsibility cannot be delegated to any other officer, howsoever senior in rank to the CPIO. So the CPIO’s reply is bad in law and fit to be challenged in due course.
1) The MoU was signed by the then Chief Minister of J&K and the then Minister for Power in the Central Government. The MoU transfers the following 7 hydel projects: Kishanganga, Uri-II, Bursar, Sewa-II, Pakal Dul, Nimmo Bazgo and Chutak, to NHPC, in order to “exploit the large power potential in the State”. The purpose of the transfer is to enable NHPC to “execute these projects over a period of 10 years”, in phases so that their implementation would help the State in its overall development apart from “meeting its winter peak requirements of electricity”. The installed capacity of these projects is said to be a little more than 2,000 megawatts. Details are available in the March 2015 reply of the Minister for Power given in the Lok Sabha. 40% of the hydel power generated by NHPC projects across the country flows from J&K.
2) According to the MoU, the J&K Govt. must get 12% of the power generated by these hydel projects free of cost. Another 15% of the unallocated quota of power from the Central share would be provided to J&K at bus bar rates to meet winter peak requirements.
3) These hydel projects mentioned above were handed over to NHPC for funding, execution and operation under the MoU. Most importantly, the MoU requires the working out of an acceptable methodology for handing over these projects to J&K Govt. separately. Presumably, the handing over was to be planned after the completion of 10 years of the execution of the MoU.
So, at least on the face of it, the Union Power Minister’s reply in the Lok Sabha in May 2015 seems to contradict the terms of the MoU, regarding transfer of the power projects after 10 years. What is also interesting is that there is no mention of a “buyback” of these projects by GoJ&K. The language of the MoU only talks about “handing over the projects” to J&K Govt.. However, because of the denial of access to the correspondence between GoI & the J&K Govt. about this issue it is not possible to clear up this mystery until further disclosures are made.
4) Since 2001-02 up to 01 March 2016, the hydel projects across J&K executed by NHPC have generated at least 115,636 MUs (million units). The RTI reply wrongly calculates the total as 115,637 MUs. If the individual figures are correct then the total has to be 115,636 MUs. If the total is correct, then one of the annual power generation figures provided by NHPC is wrong. Pakal Dul project does not seem to have taken off, so power generation does not appear to have begun in that project.
5) While according to the MoU, NHPC was required to sell 15% of the power generated in the State to J&K Govt., between 2001-2015 (14 years), it actually sold 19.7% of the power generated in J&K. This figure does not include the 12% of power generated that NHPC is required to supply to J&K free of charge under the terms of the MoU. (While power generation figures are available up to 01 March, 2016, sales figures for this period have not been provided by NHPC.)
6) When Ms. Mehbooba Mufti, now Chief Minister of J&K, raised a query in the Lok Sabha, in July 2014, regarding the amount of revenue earned by the NHPC projects in 2013-14, the Minister for Power assured her that the information was being collected. It is not known whether she was provided with the information subsequently. However the RTI response from the NHPC contains sales figures for a 14-year period (sales figures for 2015-16 have not been provided by NHPC yet, perhaps they are being compiled).
7) Between 2001-2015 (14 years), by its own calculation, NHPC earned more than Rs. 194 billion (Rs. 19,431.92 crores to be exact) from the sale of power generated in J&K to all power utilities including the J&K Govt. However, when the sales figures provided by NHPC under the RTI Act are totalled up on MSExcel spreadsheet, the sales figures go up slightly to Rs. 19,442.56 crores.
8) Between 2001-2015 (14 years), by selling 20,841.65 MU of power to J&K Govt. alone, NHPC earned a little more than Rs. 41 billion (Rs. 4,129.58 crores to be exact). This includes the power generated by the hydel power plants situated at Chutak and Nimmo Bazgo and sold to the J&K Govt. exclusively.
9) Punjab is the biggest buyer of the power generated in J&K followed by Haryana, Delhi, Uttar Pradesh, Rajasthan, Uttarakhand and Himachal Pradesh. Multiple power utilities, some of which are in the private sector in the States of Haryana, Rajasthan and Delhi bought power generated in J&K from NHPC. Punjab actually bought more power than J&K, every year during this period.
10) Replying to a question raised by a member of the Opposition in the Lok Sabha, the Union Power Minister stated in the Lok Sabha in August 2015, that NHPC was not a loss making public sector undertaking (PSU). GoI is said to have approved a proposal to disinvest 11.36% of its shares in the NHPC. In April, 2015 the Minister of State for Finance replying to a question in the Lok Sabha stated that GoI had disinvested Rs. 21.31 billion (Rs. 2,131 crores) worth of its shares in the NHPC. How much profit NHPC is making from the J&K-based hydel projects remains to be explored through RTI.
So the overall picture that emerges from the information supplied under the RTI Act is of J&K being a power surplus State that lights up homes and powers industries across northern India while its own people face severe power outages day after day. More than 2/3rds of the hydel power generated in J&K is consumed outside this State. During an informal conversation some officers of the J&K Govt. told me that the State power utility could not get its act right to improve power supply in the State. Be that as it may, the first woman Chief Minister has her task cut out to empower the people in J&K.
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*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi
A problem commonly raised by participants at our training workshops on the right to information (RTI) held across Jammu and Kashmir (J&K), over several years, is the frequent and long power outages they experience, almost on a daily basis. Having sojourned through several parts of the Kashmir valley, apart from far flung areas like Kargil, during the last few years, I experienced, first hand, these long periods of power supply breakdown. LCD projectors and public address systems would stop working abruptly in the middle of a workshop due to power outage and one had to resort to other methods of teaching RTI procedures. In Kargil, a major complaint that youth participants voiced at our workshop held last year was the increased frequency and duration of power outages during the exams season.
During a visit to Srinagar, earlier this year, when the State was placed under Governor’s rule and negotiations for installing a new government were still on, I came across media reports about the efforts made by the J&K Government to “buy back” some of its hydro power projects from the Government of India (GoI). Upon researching this issue, it turned out that the Group of Interlocutors for J&K appointed by the Union Government, in October 2010, to hold discussions with all sections of opinion in J&K and identify the political contours of a solution and the road map towards it, had looked into this issue.
In 2012, this Group recommended the transfer of power projects under the Central Government’s control back to the State as one of the several “Economic and Social Confidence Building Measures” required to reach the eventual solution. Strangely the Interlocutors’ Report has disappeared from the webpage of the Union Home Ministry where it was hosted earlier. Google did not throw up any search result for its new “home”. Meanwhile the full text of the report may be accessed on the website of FirstPost.com.
Further research showed that in March 2015, while replying to a question raised by the MP elected from Srinagar, in the Lok Sabha, the Union Minister of State for Power (independent charge) stated as follows:
“The Task Force on the development of Jammu & Kashmir recommended transfer of certain Power Projects of NHPC including Dulhasti Hydroelectric Project (HEP) to State Government. The recommendation was considered by the Union Government and not accepted as the power generated from the project has already been allocated to various States including J&K. Also the transfer of the project is likely to entail considerable financial, non-financial and legal problems.”
To a lay reader, the Minister’s reply conveys a sense of finality on the issue of buyback of hydel projects by the J&K Government. However, my recent RTI intervention seems to indicate otherwise.
RTI intervention regarding the “buyback” of hydel projects in J&K
After experiencing a particularly bad phase of power outages in Srinagar and Kulgam during my visit in March this year, I filed a request for information under the Central Right to Information Act, 2005 (RTI Act) seeking copies of the correspondence between GoI and J&K Govt. about the ‘buyback’ idea and all related file notings. The Ministry of Power washed its hands off by transferring the RTI application to NHPC Ltd. (NHPC) which is actually implementing the hydel projects in J&K. NHPC replied that disclosure of the information sought by me would harm its commercial interests. The RTI reply indicated that the issue of buy back has not been resolved yet and negotiations seem to be going on even now. This appears to be a positive sign.However, the NHPC’s stance that Section 8(1)(d) of the Central RTI Act is attracted to the information request, is facile, to say the very least. That exemption is available only for a “third party” and that too only for matters of commercial confidence (and not merely commercial interest) where the disclosure of information would harm its competitive position. A public authority which receives the RTI application cannot use this clause to protect its own information under Section 8(1)(d). A public authority cannot be both the ‘second party’ and the ‘third party’ to one RTI application (where the first party is the RTI applicant and the initiator of the cause of action).
Further, the Central Public Information Officer (CPIO) has only parroted the reply received from another officer without applying his mind to the contents of the reply. As the designated CPIO, it is well settled now that despite any response that he may receive from another colleague regarding a pending RTI application, the decision to disclose or not is his own. The case law on this issue is well developed. That responsibility cannot be delegated to any other officer, howsoever senior in rank to the CPIO. So the CPIO’s reply is bad in law and fit to be challenged in due course.
RTI intervention regarding the MOU and the power generated and sold by NHPC from J&K
My 2nd RTI intervention was directly with the NHPC. I sought a copy of the Memorandum of Understanding (MoU) signed between GoI and the J&K Govt. regarding the handing over of existing hydel projects to NHPC and the development of the hydro-electric potential in the State. The NHPC has recently supplied the information after collecting an additional fee of Rs. 24/-. The NHPC also supplied data about the quantum of electricity generated by the hydel projects situated in J&K and the revenues it earned from selling power produced in J&K during the last 15 years. The main findings from the RTI replies are summarised below:1) The MoU was signed by the then Chief Minister of J&K and the then Minister for Power in the Central Government. The MoU transfers the following 7 hydel projects: Kishanganga, Uri-II, Bursar, Sewa-II, Pakal Dul, Nimmo Bazgo and Chutak, to NHPC, in order to “exploit the large power potential in the State”. The purpose of the transfer is to enable NHPC to “execute these projects over a period of 10 years”, in phases so that their implementation would help the State in its overall development apart from “meeting its winter peak requirements of electricity”. The installed capacity of these projects is said to be a little more than 2,000 megawatts. Details are available in the March 2015 reply of the Minister for Power given in the Lok Sabha. 40% of the hydel power generated by NHPC projects across the country flows from J&K.
2) According to the MoU, the J&K Govt. must get 12% of the power generated by these hydel projects free of cost. Another 15% of the unallocated quota of power from the Central share would be provided to J&K at bus bar rates to meet winter peak requirements.
3) These hydel projects mentioned above were handed over to NHPC for funding, execution and operation under the MoU. Most importantly, the MoU requires the working out of an acceptable methodology for handing over these projects to J&K Govt. separately. Presumably, the handing over was to be planned after the completion of 10 years of the execution of the MoU.
So, at least on the face of it, the Union Power Minister’s reply in the Lok Sabha in May 2015 seems to contradict the terms of the MoU, regarding transfer of the power projects after 10 years. What is also interesting is that there is no mention of a “buyback” of these projects by GoJ&K. The language of the MoU only talks about “handing over the projects” to J&K Govt.. However, because of the denial of access to the correspondence between GoI & the J&K Govt. about this issue it is not possible to clear up this mystery until further disclosures are made.
4) Since 2001-02 up to 01 March 2016, the hydel projects across J&K executed by NHPC have generated at least 115,636 MUs (million units). The RTI reply wrongly calculates the total as 115,637 MUs. If the individual figures are correct then the total has to be 115,636 MUs. If the total is correct, then one of the annual power generation figures provided by NHPC is wrong. Pakal Dul project does not seem to have taken off, so power generation does not appear to have begun in that project.
5) While according to the MoU, NHPC was required to sell 15% of the power generated in the State to J&K Govt., between 2001-2015 (14 years), it actually sold 19.7% of the power generated in J&K. This figure does not include the 12% of power generated that NHPC is required to supply to J&K free of charge under the terms of the MoU. (While power generation figures are available up to 01 March, 2016, sales figures for this period have not been provided by NHPC.)
6) When Ms. Mehbooba Mufti, now Chief Minister of J&K, raised a query in the Lok Sabha, in July 2014, regarding the amount of revenue earned by the NHPC projects in 2013-14, the Minister for Power assured her that the information was being collected. It is not known whether she was provided with the information subsequently. However the RTI response from the NHPC contains sales figures for a 14-year period (sales figures for 2015-16 have not been provided by NHPC yet, perhaps they are being compiled).
7) Between 2001-2015 (14 years), by its own calculation, NHPC earned more than Rs. 194 billion (Rs. 19,431.92 crores to be exact) from the sale of power generated in J&K to all power utilities including the J&K Govt. However, when the sales figures provided by NHPC under the RTI Act are totalled up on MSExcel spreadsheet, the sales figures go up slightly to Rs. 19,442.56 crores.
8) Between 2001-2015 (14 years), by selling 20,841.65 MU of power to J&K Govt. alone, NHPC earned a little more than Rs. 41 billion (Rs. 4,129.58 crores to be exact). This includes the power generated by the hydel power plants situated at Chutak and Nimmo Bazgo and sold to the J&K Govt. exclusively.
9) Punjab is the biggest buyer of the power generated in J&K followed by Haryana, Delhi, Uttar Pradesh, Rajasthan, Uttarakhand and Himachal Pradesh. Multiple power utilities, some of which are in the private sector in the States of Haryana, Rajasthan and Delhi bought power generated in J&K from NHPC. Punjab actually bought more power than J&K, every year during this period.
10) Replying to a question raised by a member of the Opposition in the Lok Sabha, the Union Power Minister stated in the Lok Sabha in August 2015, that NHPC was not a loss making public sector undertaking (PSU). GoI is said to have approved a proposal to disinvest 11.36% of its shares in the NHPC. In April, 2015 the Minister of State for Finance replying to a question in the Lok Sabha stated that GoI had disinvested Rs. 21.31 billion (Rs. 2,131 crores) worth of its shares in the NHPC. How much profit NHPC is making from the J&K-based hydel projects remains to be explored through RTI.
So the overall picture that emerges from the information supplied under the RTI Act is of J&K being a power surplus State that lights up homes and powers industries across northern India while its own people face severe power outages day after day. More than 2/3rds of the hydel power generated in J&K is consumed outside this State. During an informal conversation some officers of the J&K Govt. told me that the State power utility could not get its act right to improve power supply in the State. Be that as it may, the first woman Chief Minister has her task cut out to empower the people in J&K.
—
*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi
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