The Narmada Bachao Andolan v. Union of India case concerned the Narmada Bachao Andolan's opposition to the construction of the Sardar Sarovar Dam on the Narmada River, raising environmental issues ...
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PETITIONER:
NARMADA BACHAO ANDOLAN
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT: 18/10/2000
BENCH:
B. N. KIRPAL , DR. A. S. ANAND
JUDGMENT:
KIRPAL,J.
Narmada is the fifth largest river in India and largest West flowing
river of the Indian Peninsula. Its annual flow approximates to the combined
flow of the rivers Sutlej, Beas and Ravi. Originating from the Maikala
ranges at Amarkantak in Madhya Pradesh, it flows Westwards over a length
of about 1312 km. before draining into the Gulf of Cambay, 50 km. West of
Bharuch City. The first 1077 km. stretch is in Madhya Pradesh and the
next 35 km. stretch of the river forms the boundary between the States of
Madhya Pradesh and Maharasthra. Again, the next 39 km. forms the
boundary between Maharasthra and Gujarat and the last stretch of 161 km.
lies in Gujarat.
The Basin area of this river is about 1 lac sq. km. The utilisation of
this river basin, however, is hardly about 4%. Most of the water of this
peninsula river goes into the sea. Inspite of the huge potential, there was
hardly any development of the Narmada water resources prior to
independence.
In 1946, the then Government of Central Provinces and Berar and
the then Government of Bombay requested the Central Waterways,
Irrigation and Navigation Commission (CWINC) to take up investigations on
the Narmada river system for basin-wise development of the river with flood
control, irrigation, power and extension of navigation as the objectives in
view. The study commenced in 1947 and most of the sites were inspected
by engineers and geologists who recommended detailed investigation for
seven projects. Thereafter in 1948, the Central Ministry of Works, Mines &
Power appointed an Ad-hoc Committee headed by Shri A.N. Khosla,
Chairman, CWINC to study the projects and to recommend the priorities.
This Ad-hoc Committee recommended as an initial step detailed
investigations for the following projects keeping in view the availability of
men, materials and resources:
1. Bargi Project
2. Tawa Project near Hoshangabad
3. Punasa Project and
4. Broach Project
Based on the recommendations of the aforesaid Ad-hoc Committee,
estimates for investigations of the Bargi, Tawa, Punasa (Narmadasagar)
and Broach Projects were sanctioned by the Government of India in March,
1949.
The Central Water & Power Commission carried out a study of the
hydroelectric potential of the Narmada basin in the year 1955. After the
investigations were carried out by the Central Water & Power Commission,
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the Navagam site was finally decided upon in consultation with the erstwhile
Government of Bombay for the construction of the dam. The Central Water
& Power Commission forwarded its recommendations to the then
Government of Bombay. At that time the implementation was contemplated
in two stages. In Stage-I, the Full Reservoir Level (hereinafter referred to as
FRL) was restricted to 160 ft. with provision for wider foundations to enable
raising of the dam to FRL 300 ft. in Stage-II. A high level canal was
envisaged in Stage-II. The erstwhile Bombay Government suggested two
modifications, first the FRL of the dam be raised from 300 to 320 ft. in
Stage-II and second the provision of a power house in the river bed and a
power house at the head of the low level canal be also made. This project
was then reviewed by a panel of Consultants appointed by the Ministry of
Irrigation & Power who in a report in 1960 suggested that the two stages of
the Navagam dam as proposed should be combined into one and the dam
be constructed to its final FRL 320 ft. in one stage only. The Consultants
also stated that there was scope for extending irrigation from the high level
canal towards the Rann of Kutch.
With the formation of the State of Gujarat on 1st May, 1960, the
Narmada Project stood transferred to that State. Accordingly, the
Government of Gujarat gave an administrative approval to Stage-I of the
Narmada Project in February, 1961. The Project was then inaugurated by
late Pandit Jawaharlal Nehru on 5th April, 1961. The preliminary works such
as approach roads & bridges, colonies, staff buildings and remaining
investigations for dam foundations were soon taken up.
The Gujarat Government undertook surveys for the high level canal
in 1961. The submergence area survey of the reservoir enabled
assessment of the storage capability of the Navagam reservoir, if its height
should be raised beyond FRL 320 ft. The studies indicated that a reservoir
with FRL + 460 ft. would enable realisation of optimum benefits from the
river by utilising the untapped flow below Punasa dam and would make it
possible to extend irrigation to a further area of over 20 lakh acres.
Accordingly, explorations for locating a more suitable site in the narrower
gorge portion were taken in hand and finally in November, 1963, site No. 3
was found to be most suitable on the basis of the recommendations of the
Geological Survey of India and also on the basis of exploration and
investigations with regard to the foundation as well as construction materials
available in the vicinity of the dam site.
In November, 1963, the Union Minister of Irrigation & Power held a
meeting with the Chief Ministers of Gujarat and Madhya Pradesh at Bhopal.
As a result of the discussions and exchange of views, an agreement
(Bhopal Agreement) was arrived at. The salient features of the said
Agreement were:
a) That the Navagam Dam should be built to FRL 425 by the
Government of Gujarat and its entire benefits were to be enjoyed by the
State of Gujarat.
b) Punasa dam (Madhya Pradesh) should be built to FRL 850. The
costs and power benefits of Punasa Power Project shall be shared in the
ratio 1:2 between the Governments of Gujarat and Madhya Pradesh. Out
of the power available to Madhya Pradesh half of the quantum was to be
given to the State of Maharashtra for a period of 25 years for which the
State of Maharashtra was to provide a loan to the extent of one-third the
cost of Punasa Dam. The loan to be given by the State of Maharashtra
was to be returned within a period of 25 years.
c) Bargi Project was to be implemented by the State of Madhya
Pradesh, Bargi Dam was to be built to FRL 1365 in Stage I and FRL 1390
in Stage II and the Governments of Gujarat and Maharashtra were to give
a total loan assistance of Rs. 10 crores for the same.
In pursuance of the Bhopal Agreement, the Government of Gujarat
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prepared a brief project report envisaging the Navagam Dam FRL 425 ft.
and submitted the same to the Central Water and Power Commission under
Gujarat Governments letter dated 14th February, 1964. Madhya Pradesh,
however, did not ratify the Bhopal Agreement. In order to overcome the
stalemate following the rejection of the Bhopal Agreement by Madhya
Pradesh, a High Level Committee of eminent engineers headed by Dr. A.N.
Khosla, the then Governor of Orissa, was constituted on 5th September,
1964 by the Government of India. The terms of reference of this Committee
were decided by the Government of India in consultation with the States of
Madhya Pradesh, Maharashtra and Gujarat. The same read as under:
i) Drawing up of a Master Plan for the optimum and integrated
development of the Narmada water resources.
ii) The phasing of its implementation for maximum development of
the resources and other benefits.
iii) The examination, in particular, of Navagam and alternative
projects, if any, and determining the optimum reservoir level or levels.
iv) Making recommendations of any other ancillary matters.
The Khosla Committee submitted the unanimous report to the
Government of India in September, 1965 and recommended a Master Plan
of the Narmada water development. In Chapter XI of the said Report, the
Khosla Committee outlined its approach to the plan of Narmada
development. An extract from this Chapter is reproduced below:
11.1 In their meeting from 14th to 18th December, 1964 at which the
State representatives were also present, the Committee laid down
the following basic guidelines in drawing up the Master Plan for the
optimum and integrated development of the Narmada water
resources:-
1. National interest should have over-riding priority. The plan
should, therefore, provide for maximum benefits in respect of
irrigation, power generation, flood control, navigation etc. irrespective
of State boundaries;
2. Rights and interests of State concerned should be fully
safeguarded subject to (1) above;
3. Requirements of irrigation should have priority over those of
power;
Subject to the provision that suitable apportionment of water
between irrigation and power may have to be considered, should it
be found that with full development of irrigation, power production is
unduly affected;
4. Irrigation should be extended to the maximum area within
physical limits of command, irrespective of State boundaries, subject
to availability of water; and in particular, to the arid areas along the
international border with Pakistan both in Gujarat and Rajasthan to
encourage sturdy peasants to settle in these border areas (later
events have confirmed the imperative need for this); and
5. All available water should be utilised to the maximum extent
possible for irrigation and power generation and, when no irrigation
is possible, for power generation. The quantity going waste to the
sea without doing irrigation or generating power should be kept to
the un-avoidable minimum.
The Master Plan recommended by the Khosla Committee envisaged
12 major projects to be taken up in Madhya Pradesh and one, viz.,
Navagam in Gujarat. As far as Navagam Dam was concerned, the
Committee recommended as follows:-
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1. The terminal dam should be located at Navagam.
2. The optimum FRL of the Navagam worked out to RL 500 ft..
3. The FSL (Full Supply Level ) of the Navagam canal at off-take
should be RL 300 ft..
4. The installed capacity at the river bed power station and canal power
station should be 1000 mw and 240 mw respectively with one stand-by unit
in each power station (in other words the total installed capacity at
Navagam would be 1400 mw).
The benefits of the Navagam Dam as assessed by the Khosla Committee
were as follows:-
(1) Irrigation of 15.80 lakh hectares (39.4 lakh acres) in Gujarat
and 0.4 lakh hectares (1.00 lakh acres) in Rajasthan. In addition,
the Narmada waters when fed into the existing Mahi Canal system
would release Mahi water to be diverted on higher contours enabling
additional irrigation of 1.6 to 2.0 lakh hectares (4 to 5 lakh acres)
approximately in Gujarat and 3.04 lakh hectares (7.5 lakh acres) in
Rajasthan.
(2) Hydro-power generation of 951 MW at 60% LF in the
mean year of development and 511 MW on ultimate development of
irrigation in Gujarat, Madhya Pradesh, Maharashtra and Rajasthan.
The Khosla Committee stressed an important point in favour of high
Navagam Dam, namely, additional storage. They emphasized that this
additional storage will permit greater carryover capacity, increased power
production and assured optimum irrigation and flood control and would
minimise the wastage of water to the sea. The Khosla Committee also
observed that instead of higher Navagam Dam as proposed, if Harinphal or
Jalsindhi dams were raised to the same FRL as at Navagam, the
submergence would continue to remain about the same because the
cultivated and inhabited areas lie mostly above Harinphal while in the
intervening 113 km (70 mile) gorge between Harinphal and Navagam, there
was very little habitation or cultivated areas.
The Khosla Committee report could not be implemented on account
of disagreement among the States. On 6th July, 1968 the State of Gujarat
made a complaint to the Government of India under Section 3 of the Inter-
State Water Disputes Act, 1956 stating that a water dispute had arisen
between the State of Gujarat and the Respondent States of Madhya
Pradesh and Maharashtra over the use, distribution and control of the
waters of the Inter-State River Narmada. The substance of the allegation
was that executive action had been taken by Maharashtra and Madhya
Pradesh which had prejudicially affected the State of Gujarat and its
inhabitants. The State of Gujarat objected to the proposal of the State of
Madhya Pradesh to construct Maheshwar and Harinphal Dams over the
river Narmada in its lower reach and also to the agreement reached
between the States of Madhya Pradesh and Maharashtra to jointly
construct the Jalsindhi Dam over Narmada in its course between the two
States. The main reason for the objection was that if these projects were
implemented, the same would prejudicially affect the rights and interests of
Gujarat State by compelling it to restrict the height of the dam at Navagam
to FRL 210 ft. or less. Reducing the height of the dam would mean the
permanent detriment of irrigation and power benefits that would be available
to the inhabitants of Gujarat and this would also make it impossible for
Gujarat to re-claim the desert area in the Ranns of Kutch. According to the
State of Gujarat, the principal matters in disputes were as under:
(i) The right of the State of Gujarat to control and use the
waters of the Narmada river on well-accepted principles
applicable to the use of waters of inter-State rivers;
(ii) the right of the State of Gujarat to object to the
arrangement between the State of Madhya Pradesh and
the State of Maharashtra for the development of
Jalsindhi dam;
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(iii) the right of the State of Gujarat to raise the Navagam
dam to an optimum height commensurate with the
efficient use of Narmada waters including its control for
providing requisite cushion for flood control; and
(iv) the consequential right of submergence of area in the
States of Madhya Pradesh and Maharashtra and areas
in the Gujarat State.
Acting under Section 4 of the Inter-State Water Disputes Act, 1956,
the Government of India constituted a Tribunal headed by Honble Mr.
Justice V. Ramaswamy, a retired Judge of this Court. On the same day, the
Government made a reference of the water dispute to the Tribunal. The
Reference being in the following terms:
In exercise of the powers conferred by sub-section (1) of
Section 5 of the Inter-State Water Disputes Act, 1956 (33 of 1956),
the Central Government hereby refers to the Narmada Water
Disputes Tribunal for adjudication of the water dispute regarding
the inter-State river, Narmada, and the river-valley thereof,
emerging from letter No. MIP-5565/C-10527-K dated the 6th July,
1968, from the Government of Gujarat.
On 16th October, 1969, the Government of India made another
reference of certain issues raised by the State of Rajasthan to the said
Tribunal.
The State of Madhya Pradesh filed a Demurrer before the Tribunal
stating that the constitution of the Tribunal and reference to it were ultra
vires of the Act. The Tribunal framed 24 issues which included the issues
relating to the Gujarat having a right to construct a high dam with FRL 530
feet and a canal with FSL 300 feet or thereabouts. Issues 1(a), 1(b), 1(A),
2,3, and 19 were tried as preliminary issues of law and by its decision dated
23rd February, 1972, the said issues were decided against the respondents
herein. It was held that the Notification of the Central Government dated
16th October, 1969 referring the matters raised by the State of Rajasthan by
its complaint was ultra vires of the Act but constitution of the Tribunal and
making a reference of the water dispute regarding the Inter-State river
Narmada was not ultra vires of the Act and the Tribunal had jurisdiction to
decide the dispute referred to it at the instance of State of Gujarat. It further
held that the proposed construction of the Navagam project involving
consequent submergence of portions of the territories of Maharashtra and
Madhya Pradesh could form the subject matter of a water dispute within
the meaning of Section 2(c) of the 1956 Act. It also held that it had the
jurisdiction to give appropriate direction to Madhya Pradesh and
Maharashtra to take steps by way of acquisition or otherwise for making
submerged land available to Gujarat in order to enable it to execute the
Navagam Project and the Tribunal had the jurisdiction to give consequent
directions to Gujarat and other party States regarding payment of
compensation to Maharashtra and Madhya Pradesh, for giving them a
share in the beneficial use of Navagam dam, and for rehabilitation of
displaced persons.
Against the aforesaid judgment of the Tribunal on the preliminary
issues, the States of Madhya Pradesh and Rajasthan filed appeals by
special leave to this Court and obtained a stay of the proceedings before
the Tribunal to a limited extent. This Court directed that the proceedings
before the Tribunal should be stayed but discovery, inspection and other
miscellaneous proceedings before the Tribunal may go on. The State of
Rajasthan was directed to participate in these interlocutory proceedings.
It appears that on 31.7.1972, the Chief Ministers of Madhya Pradesh,
Maharasthra, Gujarat and Rajasthan had entered into an agreement to
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compromise the matters in dispute with the assistance of Prime Minister of
India. This led to a formal agreement dated 12th July, 1974 being arrived at
between the Chief Ministers of Madhya Pradesh, Maharashtra & Rajasthan
and the Advisor to the Governor of Gujarat on a number of issues which the
Tribunal otherwise would have had to go into. The main features of the
Agreement, as far as this case is concerned, were that the quantity of water
in Narmada available for 75% of the year was to be assessed at 28 million
acre feet and the Tribunal in determining the disputes referred to it was to
proceed on the basis of this assessment. The net available quantity of
water for use in Madhya Pradesh and Gujarat was to be regarded as 27.25
million acre feet which was to be allocated between the States. The height
of the Navagam Dam was to be fixed by the Tribunal after taking into
consideration various contentions and submissions of the parties and it was
agreed that the appeals filed in this Court by the States of Madhya Pradesh
and Rajasthan would be withdrawn. It was also noted in this agreement
that development of Narmada should no longer be delayed in the best
regional and national interests.
After the withdrawal of the appeals by the States of Madhya Pradesh
and Rajasthan, the Tribunal proceeded to decide the remaining issues
between the parties.
On 16th August, 1978, the Tribunal declared its Award under
Section 5(2) read with Section 5(4) of the Inter-State Water Disputes Act,
1956. Thereafter, reference numbers 1,2,3,4 & 5 of 1978 were filed by the
Union of India and the States of Gujarat, Madhya Pradesh, Maharashtra
and Rajasthan respectively under Section 5(3) of the Inter-State Water
Disputes Act, 1956. These references were heard by the Tribunal, which on
7th December, 1979, gave its final order. The same was published in the
extraordinary Gazette by the Government of India on 12th December, 1979.
In arriving at its final decision, the issues regarding allocation, height of
dam, hydrology and other related issues came to be subjected to
comprehensive and thorough examination by the Tribunal. Extensive
studies were done by the Irrigation Commission and Drought Research Unit
of India, Meteorological Department in matters of catchment area of
Narmada Basin, major tributaries of Narmada Basin, drainage area of
Narmada Basin, climate, rainfall, variability of rainfall, arid and semi-arid
zones and scarcity area of Gujarat. The perusal of the report shows that
the Tribunal also took into consideration various technical literature before
giving its Award.
AWARD OF THE TRIBUNAL
The main parameters of the decision of the Tribunal were as under:
A) DETERMINATION OF THE HEIGHT OF SARDAR
SAROVAR DAM
The height of the Sardar Sarovar Dam was determined at FRL 455
ft.. The Tribunal was of the view that the FRL +436 ft. was required
for irrigation use alone. In order to generate power throughout the
year, it would be necessary to provide all the live storage above
MDDL for which an FRL +453 ft. with MDDL + 362 ft. would obtain
gross capacity of 7.44 MAF. Therefore, the Tribunal was of the view
that FRL of the Sardar Sarovar Dam should be + 455 ft. providing
gross storage of 7.70 MAF. It directed the State of Gujarat to took up
and complete the construction of the dam.
b) Geological and Seismological aspects of the dam site.
The Tribunal accepted the recommendations of the Standing
Committee under Central Water & Power Commission that there
should be seismic co-efficient of 0.10 g for the dam.
c) RELIEF AND REHABILITAION:
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The final Award contained directions regarding submergence, land
acquisition and rehabilitation of displaced persons. The award
defined the meaning of the land, oustee and family. The Gujarat
Government was to pay to Madhya Pradesh and Maharasthra all
costs including compensation, charges, expenses incurred by them
for and in respect of compulsory acquisition of land. Further, the
Tribunal had provided for rehabilitation of oustees and civic amenities
to be provided to the oustees. The award also provided that if the
State of Gujarat was unable to re-settle the oustees or the oustees
being unwilling to occupy the area offered by the States, then the
oustees will be re-settled by home State and all expenses for this
were to be borne by Gujarat. An important mandatory provision
regarding rehabilitation was the one contained in Clause XI sub-
clause IV(6)(ii) which stated that no submergence of any area would
take place unless the oustees were rehabilitated.
D) ALLOCATION OF THE NARMADA WATERS:
The Tribunal determined the utilizable quantum of water of the
Narmada at Sardar Sarovar Dam site on the basis of 75%
dependability at 28 MAF. It further ordered that out of the utilizable
quantum of Narmada water, the allocation between the States should
be as under:
Madhya Pradesh : 18.25 MAF
Gujarat : 9.00 MAF
Rajasthan : 0.50 MAF
Maharasthra : 0.25 MAF
E) PERIOD OF NON REVIEWABILITY OF CERTAIN AWARD
TERMS:
The Award provided for the period of operation of certain clauses of
the final order and decision of the Tribunal as being subject to review
only after a period of 45 years from the date of the publication of the
decision of the Tribunal in the official gazette. What is important to
note however is that the Tribunals decision contained in clause II
relating to determination of 75% dependable flow as 28 MAF was
non-reviewable. The Tribunal decision of the determination of the
utilizable quantum of Narmada water at Sardar Sarovar Dam site on
the basis of 75% dependability at 28 MAF is not a clause which is
included as a clause whose terms can be reviewed after a period of
45 years.
The Tribunal in its Award directed for the constitution of an inter-
State Administrative Authority i.e. Narmada Control Authority for the
purpose of securing compliance with and implementation of the decision
and directions of the Tribunal. The Tribunal also directed for constitution of
a Review Committee consisting of the Union Minister for Irrigation (now
substituted by Union Minister for Water Resources) as its Chairperson and
the Chief Ministers of Madhya Pradesh, Maharashtra, Gujarat and
Rajasthan as its members. The Review Committee might review the
decisions of the Narmada Control Authority and the Sardar Sarovar
Construction Advisory Committee. The Sardar Sarovar Construction
Advisory Committee headed by the Secretary, Ministry of Water Resources
as its Chairperson was directed to be constituted for ensuring efficient,
economical and early execution of the project .
Narmada Control Authority is a high powered committee having the
Secretary, Ministry of Water Resources, Government of India as its
Chairperson, Secretaries in the Ministry of Power, Ministry of Environment
and Forests, Ministry of Welfare, Chief Secretaries of the concerned four
States as Members. In addition thereto, there are number of technical
persons like Chief Engineers as the members.
Narmada Control Authority was empowered to constitute one or
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more sub-committees and assign to them such of the functions and
delegate such of its powers as it thought fit. Accordingly, the Narmada
Control Authority constituted the following discipline based sub-groups:
(i) Resettlement and Rehabilitation sub-group under the
Chairmanship of Secretary, Ministry of Welfare;
(ii) Rehabilitation Committee under Secretary, Minister of
Welfare to supervise the rehabilitation process by undertaking visits
to R&R sites and submergence villages.
(iii) Environment Sub-group under the Chairmanship of
Secretary, Ministry of Environment and Forests;
(iv) Hydromet Sub-group under the Chairmanship of Member
(Civil), Narmada Control Authority;
(v) Power Sub-group under the Chairmanship of Member (Power)
Narmada Control Authority;
(vi) Narmada main Canal Sub-committee under the
chairmanship of Executive Member, Narmada Conrol Authority.
The Award allocated the available water resources of the Narmada
river between the four States. Based on this allocation, an overall plan for
their utilisation and development had been made by the States. Madhya
Pradesh was the major sharer of the water. As per the water resources
development plan for the basin it envisaged in all 30 major dams, 135
medium dam projects and more than 3000 minor dams. The major terminal
dam at Sardar Sarovar was in Gujarat, the remaining 29 being in Madhya
Pradesh. Down the main course of the river, the four major dams were the
Narmada Sagar (now renamed as Indira Sagar), Omkareshwar and
Maheshwar all in Madhya Pradesh and Sardar Sarovar in Gujarat.
Rajasthan was to construct a canal in its territory to utilize its share of 0.5
MAF.
Relavant Details of the Sardar Sarovar Dam:
As a result of the Award of the Tribunal, the Sardar Sarovar Dam and
related constructions, broadly speaking, are to comprise of the following:
a) Main dam across the flow of the river with gates above the
crest level to regulate the flow of water into the Narmada Main Canal.
b) An underground River Bed Power through which a portion of
the water is diverted to generate power (1200 MW). This water joins
the main channel of the Narmada river downstream of the dam.
c) A saddle dam located by the side of main reservoir through
which water to the main canal system flows.
d) A Canal Head Power House located at the toe of the saddle
dam, through which the water flowing to the main canal system is to
be used to generate power (250 MW).
e) The main canal system known as Narmada main canal 458
KM. long which is to carry away the water meant for irrigation and
drinking purposes to the canal systems of Gujarat and Rajasthan.
Expected benefits from the project:
The benefits expected to flow from the implementation of the Sardar
Sarovar Project had been estimated as follows:
Irrigation: 17.92 lac hectare of land spread over 12 districts, 62
talukas and 3393 villages (75% of which is drought-prone areas) in
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Gujarat and 73000 hectares in the arid areas of Barmer and Jallore
districts of Rajasthan.
Drinking Water facilities to 8215 villages and 135 urban centers in
Gujarat both within and outside command. These include 5825
villages and 100 urban centers of Saurashtra and Kachchh which are
outside the command. In addition, 881 villages affected due to high
contents of fluoride will get potable water.
Power Generation: 1450 Megawatt.
Annual Employment Potential:
7 lac man-years during construction
6 lac man-years in post construction.
Protection against advancement of little Rann of Kutch and
Rajasthan desert.
Flood protection to riverine reaches measuring 30,000 hac, 210
villages including Bharuch city and 7.5 lac population.
Benefits to:
a) Dhumkhal Sloth Bear Sanctuary.
b) Wild Ass Sanctuary in Little Rann of Kachchh
c) Black Buck Sanctuary at Velavadar.
d) Great Indian Bustard Sanctuary in Kachchh
e) Nal Sarovar Bird Sanctuary.
Development of fisheries: Deepening of all village tanks of
command which will increase their capacities, conserve water, will
recharge ground water, save acquisition of costly lands for getting
earth required for constructing canal banks and will reduce health
hazard.
Facilities of sophisticated communication system in the entire
command.
Increase in additional annual production on account of
(Rs.in crores)
Agricultural production 900
Domestic water supply 100
Power Generation 440
--------
Total 1400
--------
POST AWARD CLEARANCES:
In order to meet the financial obligations, consultations had started in
1978 with the World Bank for obtaining a loan. The World Bank sent its
Reconnaissance Mission to visit the project site and carried out the
necessary inspection. In May, 1985, the Narmada Dam and Power Project
and Narmada Water Delivery and Drainage Project were sanctioned by the
World Bank under International Development Agency, credit No. 1552.
Agreement in this respect was signed with the Bank on 10.5.1985 and credit
was to be made available from 6th January, 1986.
With regard to the giving environmental clearance, a lot of discussion
took place at different levels between the Ministry of Water Resources and
the Ministry of Environment. Ultimately on 24th June, 1987 the Ministry of
Environment and Forests, Government of India accorded clearance subject
to certain conditions. The said Office Memorandum containing the
environmental clearance reads as follows:
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OFFICE MEMORANDUM
Subject : Approval of Narmada Sagar Project, Madhya
Pradesh and Sardar Sarovar Project, Gujarat from
environmental angle.
The Narmada Sagar Project, Madhya Pradesh and Sardar
Sarovar Project Gujarat have referred to this Department for
environmental clearance.
2. On the basis of examination of details on these projects by
the Environmental Appraisal Committee for River Valley
Projects and discussions with the Central and State authorities
the following details were sought from the project authorities:
1. Rehabilitation Master Plan
2. Phased Catchment Area Treatment Scheme
3. Compensatory Afforestation Plan
4. Command Area Development
5. Survey of Flora and Fauna
6. Carrying capacity of surrounding area.
7. Seismicity and
8. Health Aspects
3. Field surveys are yet to be completed. The first set of
information hash been made available and complete details
have been assured to be furnished in 1989.
4. The NCA has been examined and its terms of reference
have been amplified to ensure that environmental safeguard
measures are planned and implemented in depth and in its
pace of implementation pari passu with the progress of work on
the projects.
5. After taking into account all relevant facts the Narmada
Sagar Project, Madhya Pradesh and the Sardar Sarovar
Project, Gujarat State are hereby accorded environmental
clearance subject to the following conditions.
i. The Narmada Control Authority (NCA)will ensure that
environmental safeguard measures are planned and
implemented pari passu with progress of work on project.
ii) The detailed surveys/studies assured will be carried out
as per the schedule proposed and details made available to the
Department for assessment.
iii) The Catchment Area treatment programme and the
Rehabilitation plans be so drawn as to be completed ahead of
reservoir filling.
iv) The Department should be kept informed of progress on
various works periodically.
6. Approval under Forest (Conservation) Act, 1980 for
diversion of forest land will be obtained separately. No work
should be initiated on forest area prior to this approval.
7. Approval from environmental and forestry angles for any
other irrigation, power or development projects in the Narmada
Basin should be obtained separately.
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Sd/-
(S.MUDGAL)
DIRECTOR(IA)
In November, 1987 for monitoring and implementation of various
environmental activities effectively, an independent machinery of
Environment Sub-Group was created by Narmada Control Authority. This
Sub-Group was appointed with a view to ensure that the environmental
safeguards were properly planned and implemented. This Sub-Group is
headed by the Secretary, Ministry of Environment and Forests, Government
of India, as its Chairperson and various other independent experts in
various fields relating to environment as its members.
After the clearance was given by the Ministry of Environment and
Forests, the Planning Commission, on 5th October, 1988, approved
investment for an estimated cost of Rs. 6406/- crores with the direction to
comply with the conditions laid down in the environment clearance accorded
on 24th June, 1987.
According to the State of Gujarat and Union of India, the studies as
required to be done by the O.M. dated 24th June, 1987, whereby
environmental clearance was accorded, have been undertaken and the
requisite work carried out. The construction of the dam had commenced in
1987.
In November, 1990 one Dr. B.D. Sharma wrote a letter to this Court
for setting up of National Commission for Scheduled Castes and Scheduled
Tribes including proper rehabilitation of oustees of Sardar Sarovar Dam.
This letter was entertained and treated as a writ petition under Article 32 of
the Constitution being Writ Petition No. 1201 of 1990.
On 20th September, 1991, this Court in the said Writ Petition bearing
No. 1201 of 1990 gave a direction to constitute the Committee headed by
Secretary (Welfare) to monitor the rehabilitation aspects of Sardar Sarovar
Project.
The Narmada Bachao Andolan, the petitioner herein, had been in the
forefront of agitation against the construction of the Sardar Sarovar Dam.
Apparently because of this, the Government of India, Ministry of Water
Resources vide Office Memorandum dated 3rd August, 1993 constituted a
Five Member Group to be headed by Dr. Jayant Patil, Member, Planning
Commission and Dr. Vasant Gowarikar, Mr. Ramaswamy R. Iyer, Mr. L.C.
Jain and Dr. V.C. Kulandaiswamy as its members to continue discussions
with the Narmada Bachao Andolan on issues relating to the Sardar Sarovar
Project. Three months time was given to this Group to submit its report.
During this time, the construction of the dam continued and on 22nd
February, 1994 the Ministry of Water Resources conveyed its decision
regarding closure of the construction sluices. This decision was given effect
to and on 23rd February, 1994 closure of ten construction sluices was
effected.
In April, 1994 the petitioner filed the present writ petition inter alia
praying that the Union of India and other respondents should be restrained
from proceeding with the construction of the dam and they should be
ordered to open the aforesaid sluices. It appears that the Gujarat High
Court had passed an order staying the publication of the report of the Five
Member Group established by the Ministry of Water Resources. On 15th
November, 1994, this Court called for the report of the Five Member Group
and the Government of India was also directed to give its response to the
said report.
By order dated 13th December, 1994, this Court directed that the
report of the Five Member Group be made public and responses to the
same were required to be filed by the States and the report was to be
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considered by the Narmada Control Authority. This Report was discussed
by the Narmada Control Authority on 2nd January, 1995 wherein
disagreement was expressed by the State of Madhya Pradesh on the
issues of height and hydrology. Separate responses were filed in this
Court to the said Five Member Group Report by the Government of India
and the Governments of Gujarat and Madhya Pradesh.
On 24th January, 1995, orders were issued by this Court to the Five
Member Group for submitting detailed further report on the issues of:
a) Height
b) Hydrology
c) Resettlement and Rehabilitation and environmental matters.
Dr. Patil who had headed the Five Member Group expressed his
unwillingness to continue on the ground of ill-health and on 9th February,
1995, this Court directed the remaining four members to submit their report
on the aforesaid issues.
On 17th April, 1985 the Four Member Group submitted its report. The
said report was not unanimous, unlike the previous one, and the Members
were equally divided. With regard to hydrology, Professor V.C.
Kulandaiswamy and Dr. Vasant Gowariker were for adoption of 75%
dependable flow of 27 MAF for the design purpose, on the basis of which
the Tribunals Award had proceeded. On the other hand, Shri Ramaswamy
R. Iyer and Shri L.C. Jain were of the opinion that for planning purposes, it
would be appropriate to opt for the estimate of 23 MAF. With regard to the
question relating to the height of the dam, the views of Dr. Gowariker were
that the Tribunal had decided FRL 455 ft. after going into exhaustive details
including social, financial and technical aspects of the project and that it was
not practicable at the stage when an expenditure of Rs. 4000 crores had
been incurred and an additional contract amounting to Rs. 2000 crores
entered into and the various parameters and features of the project having
been designed with respect to FRL 455 ft. that there should be a reduction
of the height of the dam. The other three Members proceeded to answer
this question by first observing as follows:
We must now draw conclusions from the foregoing analysis, but
a preliminary point needs to be made. The SSP is now in an
advanced stage of construction, with the central portion of the
dam already raised to 80 m.; the canal constructed upto a length
of 140 Kms. ; and most of the equipment for various components
of the project ordered and some of it already wholly or partly
manufactured. An expenditure of over Rs. 3800 crores is said to
have been already incurred on the project; significant social costs
have also been incurred in terms of displacement and
rehabilitation. The benefits for which these costs have been and
are being incurred have not materialised yet. In that situation,
any one with a concern for keeping project costs under check
and for ensuring the early commencement of benefits would
generally like to accelerate rather than retard the completion of
the project as planned. If any suggestion for major changes in
the features of the project at this juncture is to be entertained at
all, there will have to be the most compelling reasons for doing
so.
It then addressed itself to the question whether there were any
compelling reasons. The answer, they felt, depended upon the view they
took on the displacement and rehabilitation problem. The two views which,
it examined, were, firstly whether the problem of displacement and
rehabilitation was manageable and, if it was, then there would be no case of
reduction in the height. On the other hand, if relief and rehabilitation was
beset with serious and persistent problems then they might be led to the
conclusion that there should be an examination of the possibility of reducing
submergence and displacement to a more manageable size. These three
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Members then considered the question of the magnitude of the relief and
rehabilitation problem. After taking into consideration the views of the
States of Madhya Pradesh and Gujarat, the three Members observed as
follows:
We find that the Government of Indias idea of phased
construction outlined earlier offers a practical solution; it does not
prevent the FRL from being raised to 455 in due course if the
necessary conditions are satisfied; and it enables the
Government of Madhya Pradesh to take stock of the position at
436 and call a halt if necessary. We would, however, reiterate
the presumption expressed in paragraph 3.9.2. above namely
that no delinking of construction from R&R is intended and that
by phased construction the Government of India do not mean
merely tiered construction which facilitates controlled
submergence in phases. We recommend phased construction in
a literal sense, that is to say, that at each phase it must be
ensured that the condition of advance completion of R&R has
been fulfilled before proceeding to the next phase (i.e. the
installation of the next tier of the gates). This would apply even
to the installation of the first tier. Judicious operation of the
gates (while necessary) cannot be a substitute for the aforesaid
condition.
The possibility of further construction when the FRL 436 ft. was reached or
a stoppage at that stage was left open by the Members. With regard to the
environment it observed that this subject had been by and large covered in
the first FMG report.
RIVAL CONTENTIONS
On behalf of the petitioners, the arguments of Sh. Shanti Bhushan,
learned senior counsel, were divided into four different heads, namely,
general issues, issues regarding environment, issues regarding relief and
rehabilitation and issues regarding review of Tribunals Award. The
petitioners have sought to contend that it is necessary for some
independent judicial authority to review the entire project, examine the
current best estimates of all costs (social, environmental, financial), benefits
and alternatives in order to determine whether the project is required in its
present form in the national interest or whether it needs to be re-
structured/modified. It is further the case of the petitioners that no work
should proceed till environment impact assessment has been fully done and
its implications for the projects viability being assessed in a transparent and
participatory manner. This can best be done, it is submitted, as a part of the
comprehensive review of the project.
While strongly championing the cause of environment and of the
tribals who are to be ousted as a result of the submergence, it was
submitted that the environmental clearance which was granted in 1987 was
without any or proper application of mind as complete studies in that behalf
were not available and till this is done the project should not be allowed to
proceed further. With regard to relief and rehabilitation a number of
contentions were raised with a view to persuade this Court that further
submergence should not take place and the height of the dam, if at all it is
to be allowed to be constructed, should be considerably reduced as it is not
possible to have satisfactory relief and rehabilitation of the oustees as per
the Tribunals Award as a result of which their fundamental rights under
Article 21 would be violated.
While the State of Madhya Pradesh has partly supported the
petitioners inasmuch as it has also pleaded for reduction in the height of the
dam so as to reduce the extent of submergence and the consequent
displacement, the other States and the Union of India have refuted the
contentions of the petitioners and of the State of Madhya Pradesh. While
accepting that initially the relief and rehabilitation measures had lagged
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behind but now adequate steps have been taken to ensure proper
implementation of relief and rehabilitation at least as per the Award. The
respondents have, while refuting other allegations, also questioned the
bona fides of the petitioners in filing this petition. It is contended that the
cause of the tribals and environment is being taken up by the petitioners not
with a view to benefit the tribals but the real reason for filing this petition is
to see that a high dam is not erected per se. It was also submitted that at
this late stage this Court should not adjudicate on the various issues raised
specially those which have been decided by the Tribunals Award.
We first propose to deal with some legal issues before considering
the various submissions made by Sh. Shanti Bhushan regarding
environment, relief and rehabilitation, alleged violation of rights of the tribals
and the need for review of the project.
LATCHES
As far as the petitioner is concerned, it is an anti-dam organisation
and is opposed to the construction of the high dam. It has been in
existence since 1986 but has chosen to challenge the clearance given in
1987 by filing a writ petition in 1994. It has sought to contend that there was
lack of study available regarding the environmental aspects and also
because of the seismicity, the clearance should not have been granted.
The rehabilitation packages are dissimilar and there has been no
independent study or survey done before decision to undertake the project
was taken and construction started.
The project, in principle, was cleared more than 25 years ago when
the foundation stone was laid by late Pandit Jawahar Lal Nehru. Thereafter,
there was an agreement of the four Chief Ministers in 1974, namely, the
Chief Ministers of Madhya Pradesh, Gujarat, Maharashtra and Rajasthan
for the project to be undertaken. Then dispute arose with regard to the
height of the dam which was settled with the award of the Tribunal being
given in 1978. For a number of years, thereafter, final clearance was still
not given. In the meantime some environmental studies were conducted.
The final clearance was not given because of the environmental concern
which is quite evident. Even though complete data with regard to the
environment was not available, the Government did in 1987 finally give
environmental clearance. It is thereafter that the construction of the dam
was undertaken and hundreds of crores have been invested before the
petitioner chose to file a writ petition in 1994 challenging the decision to
construct the dam and the clearance as was given. In our opinion, the
petitioner which had been agitating against the dam since 1986 is guilty of
latches in not approaching the Court at an earlier point of time.
When such projects are undertaken and hundreds of crores of public
money is spent, individual or organisations in the garb of PIL cannot be
permitted to challenge the policy decision taken after a lapse of time. It is
against the national interest and contrary to the established principles of law
that decisions to undertake developmental projects are permitted to be
challenged after a number of years during which period public money has
been spent in the execution of the project.
The petitioner has been agitating against the construction of the dam
since 1986, before environmental clearance was given and construction
started. It has, over the years, chosen different paths to oppose the dam.
At its instance a Five Member Group was constituted, but its report could
not result in the stoppage of construction pari passu with relief and
rehabilitation measures. Having failed in its attempt to stall the project the
petitioner has resorted to court proceedings by filing this writ petition long
after the environmental clearance was given and construction started. The
pleas relating to height of the dam and the extent of submergence,
environment studies and clearance, hydrology, seismicity and other issues,
except implementation of relief and rehabilitation, cannot be permitted to be
raised at this belated stage.
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This Court has entertained this petition with a view to satisfy itself
that there is proper implementation of the relief and rehabilitation measurers
at least to the extent they have been ordered by the Tribunals Award. In
short it was only the concern of this Court for the protection of the
fundamental rights of the oustees under Article 21 of the Constitution of
India which led to the entertaining of this petition. It is the Relief and
Rehabilitation measures that this Court is really concerned with and the
petition in regard to the other issues raised is highly belated. Though it is,
therefore, not necessary to do so, we however presently propose to deal
with some of the other issues raised.
AWARD-BINDING ON THE STATES
It has been the effort on the part of the petitioners to persuade this
Court to decide that in view of the difficulties in effectively implementing the
Award with regard to relief and rehabilitation and because of the alleged
adverse impact the construction of the dam will have on the environment,
further construction of the dam should not be permitted. The petitioners
support the contention on behalf of the State of Madhya Pradesh to the
effect that the height of the dam should be reduced in order to decrease the
number of oustees. In this case, the petitioners also submit that with
regard to hydrology, the adoption of the figure 27 MAF is not correct and
the correct figure is 23 MAF and in view thereof the height of the dam need
not be 455 feet.
The Tribunal in this Award has decided a number of issues which
have been summarised hereinabove. The question which arises is as to
whether it is open to the petitioners to directly or indirectly challenge the
correctness of the said decision. Briefly stated the Tribunal had in no
uncertain terms come to the conclusion that the height of the dam should be
455 ft. It had rejected the contention of the State of Madhya Pradesh for
fixing the height at a lower level. At the same time in arriving at this figure, it
had considered the relief and rehabilitation problems and had issued
directions in respect thereof. Any issue which has been decided by the
Tribunal would, in law, be binding on the respective states. That this is so
has been recently decided by a Constitution Bench of this Court in The
State of Karnataka Vs. State of Andhra Pradesh and others, 2000(3) Scale
505. That was a case relating to a water dispute regarding inter-State river
Krishna between the three riparian States and in respect of which the
Tribunal constituted under the Inter-State Water Disputes Act, 1956 had
given an Award. Dealing with the Article 262 and the scheme of the Inter-
State Water Disputes Act, this Court at page 572 observed as follows:
The inter-State Water Disputes Act having been framed by the
Parliament under Article 262 of the Constitution in a complete Act
by itself and the nature and character of a decision made
thereunder has to be understood in the light of the provisions of
the very Act itself. A dispute or difference between two or more
State Governments having arisen which is a water dispute under
Section 2(C) of the Act and complaint to that effect being made to
the Union Government under Section 3 of the said Act the Central
Government constitutes a Water Disputes Tribunal for the
adjudication of the dispute in question, once it forms the opinion
that the dispute cannot be settled by negotiations. The Tribunal
thus constituted, is required to investigate the matters referred to
it and then forward to the Central Government a report setting out
the facts as found by him and giving its decision on it as provided
under sub-Section (2) of Section 5 of the Act. On consideration
of such decision of the Tribunal if the Central Government or any
State Government is of the opinion that the decision in question
requires explanation or that guidance is needed upon any point
not originally referred to the Tribunal then within three months from
the date of the decision, reference can be made to the Tribunal for
further consideration and the said Tribunal then forwards to the
Central Government a further report giving such explanation or
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guidance as it deems fit. Thereby the original decision of the
Tribunal is modified to the extent indicated in the further decision
as provided under Section 5(3) of the Act. Under Section 6 of the
Act the Central Government is duty bound to publish the decision
of the Tribunal in the Official Gazette whereafter the said decision
becomes final and binding on the parties to the dispute and hash
to be given effect to, by them. The language of the provisions of
Section 6 is clear and unambiguous and unequivocally indicates
that it is only the decision of the Tribunal which is required to be
published in the Official Gazette and on such publication that
decision becomes final and binding on the parties.
Once the Award is binding on the States, it will not be open to a third party
like the petitioners to challenge the correctness thereof. In terms of the
Award, the State of Gujarat has a right to construct a dam upto the height of
455 ft. and, at the same time, the oustees have a right to demand relief and
re-settlement as directed in the Award. We, therefore, do not propose to
deal with any contention which, in fact, seems to challenge the correctness
of an issue decided by the Tribunal.
GENERAL ISSUSES RELATING TO DIS-PLACEMENT OF
TRIBALS AND ALLEGED VIOLATION OF THE RIGHTS UNDER
ARTICLE 21 OF THE CONSTITUION:
The submission of Sh. Shanti Bhushan, learned senior counsel for the
petitioners was that the forcible displacement of tribals and other marginal
farmers from their land and other sources of livelihood for a project which
was not in the national or public interest was a violation of their fundamental
rights under Article 21 of the Constitution of India read with ILO Convention
107 to which India is a signatory. Elaborating this contention, it was
submitted that this Court had held in a large number of cases that
international treaties and covenants could be read into the domestic law of
the country and could be used by the courts to elucidate the interpretation of
fundamental rights guaranteed by the Constitution. Reliance in support of
this contention was placed on Gramaphone Co. of India Ltd. Vs. B.B.
Pandey, 1984(2) SCC 534, PUCL Vs. Union of India, 1997(3) SCC 433 and
CERC Vs. Union of India, 1995(3) SCC 42. In this connection, our attention
was drawn to the ILO Convention 107 which stipulated that tribal populations
shall not be removed from their lands without their free consent from their
habitual territories except in accordance with national laws and regulations
for reasons relating to national security or in the interest of national economic
development. It was further stated that the said Convention provided that in
such cases where removal of this population is necessary as an exceptional
measure, they shall be provided with lands of quality at least equal to that of
lands previously occupied by them, suitable to provide for their present needs
and future development. Sh. Shanti Bhushan further contended that while
Sardar Sarovar Project will displace and have an impact on thousands of
tribal families it had not been proven that this displacement was required as
an exceptional measure. He further submitted that given the seriously flawed
assumptions of the project and the serious problems with the rehabilitation
and environmental mitigation, it could not be said that the project was in the
best national interest. It was also submitted that the question arose whether
the Sardar Sarovar project could be said to be in the national and public
interest in view of its current best estimates of cost, benefits and evaluation of
alternatives and specially in view of the large displacement of tribals and
other marginal farmers involved in the project. Elaborating this contention, it
was contended that serious doubts had been raised about the benefits of the
project - the very rationale which was sought to justify the huge displacement
and the massive environmental impacts etc. It was contended on behalf of
the petitioners that a project which was sought to be justified on the grounds
of providing a permanent solution to water problems of the drought prone
areas of Gujarat would touch only the fringes of these areas, namely,
Saurashtra and Kutch and even this water, which was allocated on paper,
would not really accrue due to host of reasons. It was contended that inspite
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of concentrating on small scale decentralized measures which were
undertaken on a large scale could address the water problem of these
drought prone areas. Huge portions of the State resources were being
diverted to the Sardar Sarovar Project and as a result the small projects were
ignored and the water problem in these areas persists. It was submitted that
the Sardar Sarovar Project could be restructured to minimise the
displacement.
Refuting the aforesaid arguments, it has been submitted on behalf of
the Union of India and the State of Gujarat that the petitioners have given a
highly exaggerated picture of the submergence and other impacts of this
project. It was also submitted that the petitioners assertion that there was
large-scale re-location and uprooting of tribals was not factually correct.
According to the respondents, the project would affect only 245 villages in
Gujarat, Maharashtra and Madhya Pradesh due to pondage and backwater
effect corresponding to 1 in 100 year flood. The State-wise break up of
affected villages and the number of project affected families (PAFs) shows
that only four villages would be fully affected (three in Gujarat and one in
Madhya Pradesh) and 241 would be partially affected (16 in Gujarat, 33 in
Maharasthra and 192 in Madhya Pradesh). The total project affected
families who would be affected were 40827. The extent of the
submergence was minimum in the State of Madhya Pradesh. The picture
of this submergence as per the Government of Madhya Pradesh Action
Plan of 1993 is as follows:
Abadi will be fully submerged in 39 villages and partially in 116
villages, agricultural land will be affected upto 10% in 82 villages,
11 to 25% in 32 villages, 26 to 50% in 30 villages, 51 to 75% in 14
villages, 76 to 90% in 4 villages and 100% in only 1 village. In 21
villages, only abadi will be affected and Government land only in 9
villages. Thus, in most of the villages, submergence is only
partial.
The submergence area of the SSP can be divided into two areas:
i) Fully tribal, hilly area covering the initial reach of about
105 villages with mainly subsistence economy. It includes 33
villages of Maharasthra, 19 of Gujarat and about 53 of
Madhya Pradesh.
(ii) Mixed population area in the plains of Nimad, with a well
developed economy and connected to the mainstream. This
area includes about 140 villages in Madhya Pradesh.
These two areas have quite different topographic and habitation features
which result in totally different types of submergence impacts. The state of
the hilly area to be affected by its submergence and where most of the tribal
population exists is described by the Government of Madhya Pradesh
Action Plan, 1993 as follows:
The Narmada flows in hilly gorge from the origin to the
Arabian Sea. The undulating hilly terrain in the lower
submergence area of Sardar Sarovar Project exhibit naked
hills and depleted forests. Even small forest animals area
very rarely seen because of lack of forest cover and water.
The oft quoted symbiotic living with forests is a misnomer in
this area because the depleted forests have nothing to offer
but fuel wood. Soil is very poor mostly disintegrated, granite
and irrigation is almost nil due to undulating and hilly land.
Anybody visiting this area finds the people desperately
sowing even in the hills with steep gradient. Only one rain
fed crop of mostly maize is sown and so there is no surplus
economy.
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PAPs inhabiting these interior areas find generous
rehabilitation and resettlement packages as a means to
assimilate in the mainstream in the valley.
In 193 villages of Madhya Pradesh to be affected by the project, a very
high proportion of the houses would be affected whereas the land
submergence was only 14.1%. The reason for this is that the river bed is a
deep gorge for about 116 km. upstream of the dam and as a result the
reservoir will be long (214 km), narrow (average width of 1.77 km) and
deep. The result of this is that as one goes further upstream, the houses on
the river banks are largely affected while agricultural land which is at a
distance from the river banks is spared. A majority of 33014 families of
Madhya Pradesh (which would include 15018 major sons) would lose only
their houses and not agricultural lands would be required to be resettled in
Madhya Pradesh by constructing new houses in the new abadi. According
to the Award, agricultural land was to be allotted only if the project affected
families lost 25% or more of agricultural land and on this basis as per the
Government of Madhya Pradesh, only 830 project affected families of
Madhya Pradesh were required to be allotted agricultural land in Madhya
Pradesh.
According to the Government of Gujarat the tribals constituted bulk of
project affected families who would be affected by the dam in Gujarat and
Maharasthra, namely, 97% and 100% respectively. Out of the oustees of
project affected families of Madhya Pradesh, tribals constituted only 30%
while 70% were non-tribals. The total number of tribal project affected
families were 17725 and out of these, 9546 are already re-settled. It was
further the case of the respondents that in Madhya Pradesh the agricultural
land of the tribal villages was affected on an average to the extent of 28%
whereas in the upper reaches i.e. Nimad where the agriculture was
advanced, the extent of submergence, on an average, was only 8.5%. The
surveys conducted by HMS Gour University (Sagar), the Monitoring and
Evaluation Agency set up by the Government of Madhya Pradesh, reveal
that the major resistance to relocation was from the richer, non-tribal
families of Nimad who feared shortage of agriculture labour if the landless
labourers from the areas accepted re-settlement. In the Bi-Annual report,
1996 of HMS Gour University, Sagar, it was observed as follows:
The pre-settlement study of submerging villages has revealed
many startling realities. Anti-dam protagonists presents a picture
that tribals and backward people are the worst sufferers of this
kind of development project. This statement is at least not true in
case of the people of these five affected villages. Though, these
villages comprise a significant population of tribals and people of
weaker sections, but majority of them will not be a victim of
displacement. Instead, they will gain from shifting. The present
policy of compensation is most beneficial for the lot of weaker
section. These people are living either as labourers or marginal
farmers. The status of oustee will make them the owner of two
hectares of land and a house. In fact, it is the land-owning class
which is opposing the construction of dam by playing the card of
tribals and weaker sections. The land-owners are presently
enjoying the benefit of cheap labour in this part of the region.
Availability of cheap labour is boon for agricultural activities. This
makes them to get higher return with less inputs.
It is apparent that the tribal population affected by the submergence would
have to move but the rehabilitation package was such that the living
condition would be much better than what it was before there. Further
more though 140 villages of Madhya Pradesh would be affected in the
plains of Nimad, only 8.5% of the agricultural land of these villages shall
come under submergence due to SSP and as such the said project shall
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have only a marginal impact on the agricultural productivity of the area.
While accepting the legal proposition that International Treaties and
Covenants can be read into the domestic laws of the country the
submission of the respondents was that Article 12 of the ILO Convention
No. 107 stipulates that the populations concerned shall not be removed
without their free consent from their habitual territories except in accordance
with national laws and regulations relating to national security, or in the
interest of national economic development or of the health of the said
populations.
The said Article clearly suggested that when the removal of the tribal
population is necessary as an exceptional measure, they shall be provided
with land of quality atleast equal to that of the land previously occupied by
them and they shall be fully compensated for any resulting loss or injury.
The rehabilitation package contained in the Award of the Tribunal as
improved further by the State of Gujarat and the other States prima facie
shows that the land required to be allotted to the tribals is likely to be equal,
if not better, than what they had owned.
The allegation that the said project was not in the national or public
interest is not correct seeing to the need of water for burgeoning population
which is most critical and important. The population of India, which is now
one billion, is expected to reach a figure between 1.5 billion and 1.8 billion in
the year 2050, would necessitate the need of 2788 billion cubic meter of
water annually in India to be above water stress zone and 1650 billion cubic
metre to avoid being water scarce country. The main source of water in
India is rainfall which occurs in about 4 months in a year and the temporal
distribution of rainfall is so uneven that the annual averages have very little
significance for all practical purposes. According to the Union of India, one
third of the country is always under threat of drought not necessarily due to
deficient rainfall but many times due to its uneven occurrence. To feed the
increasing population, more food grain is required and effort has to be made
to provide safe drinking water, which, at present, is a distant reality for most
of the population specially in the rural areas. Keeping in view the need to
augment water supply, it is necessary that water storage capacities have to
be increased adequately in order to ward off the difficulties in the event of
monsoon failure as well as to meet the demand during dry season. It is
estimated that by the year 2050 the country needs to create storage of at
least 600 billion cubic meter against the existing storage of 174 billion cubic
meter.
Dams play a vital role in providing irrigation for food security,
domestic and industrial water supply, hydroelectric power and keeping flood
waters back. On full development, the Narmada has a potential of irrigating
over 6 million hectares of land and generating 3000 mw of power. The
present stage of development is very low with only 3 to 4 Maf of waters
being used by the party States for irrigation and drinking water against 28
Maf availability of water at 75% dependability as fixed by NWDT and about
100 MW power developed. 85% of the waters are estimated as flowing
waste to sea. The project will provide safe and clean drinking water to 8215
villages and 135 towns in Gujarat and 131 villages in desert areas of Jalore
district of Rajasthan, though against these only 241 villages are getting
submerged partially and only 4 villages fully due to the project.
The cost and benefit of the project were examined by the World Bank
in 1990 and the following passage speaks for itself:
The argument in favour of the Sardar Sarovar Project is that the
benefits are so large that they substantially outweigh the costs of
the immediate human and environmental disruption. Without the
dam, the long term costs for people would be much greater and
lack of an income source for future generations would put
increasing pressure on the environment. If the waters of the
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Narmada river continue to flow to the sea unused there appears to
be no alternative to escalating human deprivation, particularly in
the dry areas of Gujarat. The project has the potential to feed as
many as 20 million people, provide domestic and industrial water
for about 30 million, employ about 1 million, and provide valuable
peak electric power in an area with high unmet power demand
(farm pumps often get only a few hours power per day). In
addition, recent research shows substantial economic multiplier
effects (investment and employment triggered by development)
from irrigation development. Set against the futures of about
70,000 project affected people, even without the multiplier effect,
the ratio of beneficiaries to affected persons is well over 100:1.
There is merit in the contention of the respondents that there would be a
positive impact on preservation of ecology as a result from the project. The
SSP would be making positive contribution for preservation of environment
in several ways. The project by taking water to drought-prone and arid
parts of Gujarat and Rajasthan would effectively arrest ecological
degradation which was returning to make these areas inhabitable due to
salinity ingress, advancement of desert, ground water depletion, fluoride
and nitrite affected water and vanishing green cover. The ecology of water
scarcity areas is under stress and transfer of Narmada water to these areas
will lead to sustainable agriculture and spread of green cover. There will
also be improvement of fodder availability which will reduce pressure on
biodiversity and vegetation. The SSP by generating clean eco-friendly
hydropower will save the air pollution which would otherwise take place by
thermal generation power of similar capacity.
The displacement of the tribals and other persons would not per se
result in the violation of their fundamental or other rights. The effect is to
see that on their rehabilitation at new locations they are better off than what
they were. At the rehabilitation sites they will have more and better
amenities than which they enjoyed in their tribal hamlets. The gradual
assimilation in the main stream of the society will lead to betterment and
progress.
ENVIRONMENTAL ISSUES
The four issues raised under this head by Sh. Shanti Bhushan are as
under:
I. Whether the execution of a large project, having diverse and
far reaching environmental impact, without the proper study
and understanding of its environmental impact and without
proper planning of mitigative measures is a violation of
fundamental rights of the affected people guaranteed under
Article 21 of the Constitution of India ?
II. Whether the diverse environmental impacts of the Sardar
Sarovar Project have been properly studied and understood ?
III. Whether any independent authority has examined the
environmental costs and mitigative measures to be
undertaken in order to decide whether the environmental costs
are acceptable and mitigative measures practical ?
IV. Whether the environmental conditions imposed by the Ministry
of Environment have been violated and if so, what is the legal
effect of the violations ?
It was submitted by Sh. Shanti Bhushan that a large project having
diverse and far reaching environmental impacts in the concerned States
would require a proper study and understanding of the environmental
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impacts. He contended that the study and planning with regard to
environmental impacts must precede construction. According to Sh. Shanti
Bhushan, when the environmental clearance was given in 1987, proper
study and analysis of the environmental impacts and mitigative measures,
which were required to be taken, were not available and, therefore, this
clearance was not valid. The decision to construct the dam was stated to
be political one and was not a considered decision after taking into account
the environmental impacts of the project. The execution of SSP without a
comprehensive assessment and evaluation of its environmental impacts
and a decision regarding its acceptability was alleged to be a violation of the
rights of the affected people under Article 21 of the Constitution of India. It
was further submitted that no independent authority has examined
vehemently the environmental costs and mitigative measurers to be
undertaken in order to decide whether the environmental costs are
acceptable and mitigative measures practical. With regard to the
environmental clearance given in June, 1987, the submission of Sh. Shanti
Bhushan was that this was the conditional clearance and the conditions
imposed by the Ministry of Environment and Forests had been violated.
The letter granting clearance, it was submitted, disclosed that even the
basic minimum studies and plans required for the environmental impact
assessment had not been done. Further more it was contended that in the
year 1990, as the deadline for completion of the studies was not met, the
Ministry of Environment and Forests had declared that the clearance had
lapsed. The Secretary of the said Ministry had requested the Ministry of
Water Resources to seek extension of the clearance but ultimately no
extension was sought or given and the studies and action plans continued
to lag to the extent that there was no comprehensive environmental impact
assessment of the project, proper mitigation plans were absent and the
costs of the environmental measures were neither fully assessed nor
included in the project costs. In support of his contentions, Sh. Shanti
Bhushan relied upon the report of a Commission called the Independent
Review or the Morse Commission. The said Commission had been set up
by the World Bank and it submitted its report in June, 1992. In its report,
the Commission had adversely commented on practically all aspects of the
project and in relation to environment, it was stated as under:
Important assumptions upon which the projects are based
are now questionable or are known to be unfounded.
Environmental and social trade-off have been made, and
continue to be made, without a full understanding of the
consequences. As a result, benefits tend to be over-stated,
while social and environmental costs are frequently
understated. Assertions have been substituted for analysis.
We think that the Sardar Sarovar Projects as they stand are
flawed, that resettlement and rehabilitation of all those
displaced by the projects is not possible under the prevailing
circumstances, and that the environmental impacts of the
projects have not been properly considered or adequately
addressed.
The history of environmental aspects of Sardar Sarovar is a
history of non-compliance. There is no comprehensive
impact statement. The nature and magnitude of
environmental problems and solutions remain elusive.
Sh. Shanti Bhushan submitted that it had become necessary for
some independent judicial authority to review the entire project, examine the
current best estimates of all costs (social, environmental, financial), benefits
and alternatives in order to determine whether the project is required in its
present form in the national interest, or whether it needs to be
restructured/modified.
Sh. Shanti Bhushan further submitted that environmental impacts of
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the projects were going to be massive and full assessment of these impacts
had not been done. According to him the latest available studies show that
studies and action plans had not been completed and even now they were
lagging behind pari passu. It was also contended that mere listing of the
studies does not imply that everything is taken care of. Some of the studies
were of poor quality and based on improper data and no independent body
had subjected these to critical evaluation.
RE: ENVIRONMENTAL CLERANCE:
As considerable stress was laid by Sh. Shanti Bhushan challenging
the validity of the environmental clearance granted in 1987 inter alia on the
ground that it was not preceded by adequate studies and it was not a
considered opinion and there was non-application of mind while clearing the
project, we first propose to deal with the contention.
The events after the Award and upto the environmental clearance
granted by the Government vide its letter dated 24th June, 1987 would
clearly show that some studies, though incomplete, had been made with
regard to different aspects of the environment. Learned counsel for the
respondents stated that in fact on the examination of the situation, the claim
made with regard to the satisfactory progress was not correct. In order to
carry out the directions in the Award about the setting up of an authority, the
Inter-State Water Disputes Act, 1956 was amended and Section 6-A was
inserted to set out how a statutory body could be constituted under the Act.
On 10th September, 1980 in exercise of the powers conferred by Section 6-
A of the Act the Central Government framed a scheme, constituted the
Narmada Control Authority to give effect to the decision of the Award.
In January, 1980, the Government of Gujarat submitted to the
Central Water Commission a detailed project report in 14 volumes. This
was an elaborate report and dealt with various aspects like engineering
details, canal systems, geology of area, coverage of command area etc.
On 15th February, 1980 the Central Water Commission referred SSP to the
then Department of Environment in Department of Science & Technology.
At that point of time, environmental clearance was only an administrative
requirement. An environmental checklist was forwarded to Government of
Gujarat on 27th February, 1980 which sought to elucidate information
including following ecological aspects:
i) Excessive sedimentation of the reservoir
ii) Water logging
iii) Increase in salinity of the ground water
iv) Ground water recharge
v) Health hazard-water borne diseases, industrial pollution etc.
vi) Submergence of important minerals
vii) Submergence of monuments
viii) Fish culture and aquatic life
ix) Plant life-forests
x) Life of migratory birds
xi) National Park and Sanctuaries
xii) Seismicity due to filling of reservoir
The Government of Gujarat accordingly submitted information from
September, 1980 till March, 1983. The information was also submitted on
physio-social and economic studies for Narmada Command Area covering
cropping pattern, health aspects, water requirement etc. A note of influence
of Navagam dam on fish yield including impact on downstream fisheries
was also submitted.
The techno-economic appraisal of the project was undertaken by the
Central Water Commission which examined water availability, command
area development, construction etc. The project was considered in the 22nd
meeting of the Technical Advisory Committee on Irrigation, Flood Control
and Multi-purpose projects held on 6.1.1983 and found it acceptable subject
to environmental clearance.
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At this point of time, the matter was handled by the Department of
Science and Technology which also had a Department dealing with
Environment. Environmental Appraisal Committee of the Department of
Environment, then headed by a Joint Secretary, had in its meeting held on
12.4.1983 approved the project, in principle, and required that further data
be collected. This Environmental Appraisal Committee dealt with the
project on two other occasions, namely, on 29.3.1985 when it deferred
meeting to await report of Dewan Committee on soil conservation and
thereafter on 6.12.1985 when it deferred the meeting to await comments
from the Forest Department. As stated hereafter, subsequently the
Secretary of newly constituted Ministry of Environment and Forests took up
further consideration of this project along with other higher officials.
After the project was approved, in principle, studies and collections of
data were continuing. In May, 1983 the Narmada Planning Group,
Government of Gujarat after completion of preliminary surveys submitted
work plans for various activities such as cropping pattern, health aspects,
water requirements, distribution system, lay out and operation, development
plan of the command, drainage and ground water development.
In July, 1983, a study report on Ecology and Environmental Impact
of Sardar Sarovar Dam and its Environs prepared by MS University was
also submitted by Government of Gujarat, covering the issues as mentioned
below:
*Climate
*Geology
*Soil
*Land use
*Forest and Wildlife, Aquatic Vegetation
*Water Regime (Salinity, Tidal movements etc.)
*Fisheries
*Health
*Seismicity
A review meeting was convened by the Secretary, Ministry of Water
Resources in January, 1984 which was attended by a representative of the
Department of Environment. During this meeting, it was emphasized that
the issues regarding catchment area treatment, impact on wildlife, health,
water logging etc. should be studied in depth for assessment. The issue of
charging of cost of catchment area treatment to the project was also
discussed. To sort out this matter, a meeting was subsequently convened
by the Member, Planning Commission on 23rd May, 1984 in which the
Ministry of Environment & Forests took a stand that there was a need for an
integrated approach to basin development covering the catchment and
command area. A project report, therefore, should be prepared to cover
these aspects. Since the catchment area for Narmada Sagar and Sardar
Sarovar was very vast, it was decided that an Inter-Departmental
Committee should be set up by the Ministry of Agriculture under the
Chairmanship of Dr. M.L. Dewan. This group could submit its report only in
August, 1985 covering areas of catchment of Narmada and Sardar Sarovar
and recommended that at least 25-30% of the area might require treatment
for these projects.
The consideration of the project in the Ministry, therefore, got
deferred for this report on catchment area treatment. During this time,
Government of Madhya Pradesh entrusted the studies on flora for Narmada
Valley Project to Botanical Survey of India and other related surveys were
being carried out. Even though there was a request on 10th June, 1985
from the Chief Minister of Gujarat to the Minister of State for Environment
and Forests for delinking of catchment area treatment works on clearance
of the project, but this request was not agreed.
By this time the approval of SSP was being considered by the
Secretary, Ministry of Environment and Forests who invited other high
officials in a review meeting which was held on 31st December, 1985 under
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his chairmanship. In this meeting, detailed presentations were made by the
State officials of Gujarat, Madhya Pradesh and Maharasthra as well as the
experts who were involved in preparation of plans. The Secretary, Ministry
of Environment and Forests assessed and reviewed readiness on various
environmental aspects like Catchment Area Treatment, Compensatory
Afforesation, Rehabilitation, Command area Development, Labour force and
health issues, aquatic species, seismicity etc. and discussed the available
reports in detail in the presence of the officers of the Central/State
Governments, Botanical Survey of India, senior officers of Forest
Department, Planning Commission, Agriculture Department, Additional.
Inspector of Forests, Government of India, Deputy Inspector General,
Assistant Inspector General of Forest, Government of India, senior officers
of the Ministry of Environment and Forests, Secretary, Irrigation.
As a follow up, the Government of Maharashtra submitted
environmental data regarding affected areas in Maharashtra. This included:
*Impact assessment on wild life
*Impact assessment on genetics, specifically identifying the plant
types which are likely to be lost as a result of submergence.
*Socio anthropological studies on tribals
*The suitability of alternative land suggested for compensatory
afforestation for growing.
*Data regarding alternate land in large blocks.
*Arrangements made for exploitation of mineral resources going
under submergence.
*Alternative fuels to the labourers.
*Micro-climatic changes.
*Arrangements made for treatment of catchment area including
swoil conservation afforestation.
*Steps taken for preserving archaeological and historical
monuments.
*Proper land use
*Actions taken by Government of Maharashtra in pursuance of
Dewan Committee Report.
*Arrangements for monitoring for environmental impact for the
project.
*Data related to rehabilitation of project affected persons.
The Government of Gujarat also forwarded to the Government of
India work plans on the following:
Forests and Wildlife
Fish and Fisheries
Health aspects
The work plan on forests and wildlife incorporated actions to be taken on
the recommendations of the Inter-Departmental Committee headed by Dr.
Dewan on soil conservation and afforestation works in the catchment area.
In March, 1986, a meeting was convened by the Ministry of Water
Resources in order to discuss the issues of fisheries, flora/fauna, health,
archaeology with the officers of the Botanical Survey of India, Zoological
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Survey of India, Archaeological Survey of India and the officers of the
various departments of the State and Centre to gear up the preparation of
the environmental work plans. The next meeting was held on 11th April,
1986. The Secretary, Ministry of Environmental and Forests, who chaired
the meeting of senior officials, representatives of States and other agencies,
sought additional information to be made available by 30th April, 1986
before assessment and management decision.
In October, 1986, the Ministry of Water Resources prepared and
forwarded to the Ministry of Environment and Forests, a note on
environmental aspects of the two projects and noted the urgency of the
decision. It also considered the importance of the project, should the
project be taken at all, environmental aspects of the project and ultimately
rehabilitation, compensatory afforestation, fauna and flora, catchment area
treatment, public health aspect, prevention of water logging. It then
considered what remained to be done and enumerated the same with time
schedule as follows:
1. Madhya Pradesh to complete the detailed survey of population
likely to be affected in all phases of N.S.P.
.Three years
2. Maharashtra to prepare a detailed rehabilitation plan for 33
villages under phase 1 of SSP
.Three years
3. Madhya Pradesh to identify degraded forest lands twice the forest
area to be submerged for compensatory afforestation.
Six months
4. Survey of flora in Narmada valley assigned to Botanical Survey of
India.
Two years
5. Survey of Wildlife by Zoological Survey of India.
.Two years
6. Aerial photographs and satellite imagery to be analysed by All
India Soil and Land Use Survey Organisation and National Remote
Sensing Agency and critically degraded areas in catchment.
Field Surveys Three years.
Pilot studies to determine measures for CAT
In 25000 ha. Three years after
Aerial survey.
In this note two options were considered - one to postpone the
clearance and the other was to clear it with certain conditions with
appropriate monitoring authorities to ensure that the action is taken within
the time bound programme. It was concluded that in the light of the position
set out, it was necessary that the project should be cleared from the
environmental angle, subject to conditions and stipulations outlined.
The Department of Environment and Forests made its own
assessment through a note of the Secretary, Ministry of Environment and
Forests. It took the view that following surveys/studies as set out therein
might take at least 2-3 years. It noted in this regard that:
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i) The estimate of Ministry of Water Resources on analysis of aerial
photographs and satellite imageries as 2-3 years.
ii) Catchment area treatment programme can be formulated by three
years thereafter;
iii) Wildlife census by Zoological Survey of India would take at least
three years;
iv) Survey by Botanical Survey of India would take three years.
It further took the view that it was essential that there should be a strong
management authority. It finally concluded that if the Government should
decide to go ahead with the project it should be done with provision of
environmental management authority with adequate powers and teeth to
ensure that environment management plan is implemented pari passu with
engineering and other works. It concluded that effective implementation of
the engineering and environmental measures simultaneously will go a long
way and that such a project could be implemented by harmonizing
environmental conservation needs with the developmental effort.
The Ministry of Environment and Forests had not given
environmental clearance of Narmada Sagar and Sardar Sarovar Dam
despite all discussions which had taken place. The documents filed along
with the affidavit of Shri P.K. Roy, Under Secretary, Prime Ministers Office
dated 27th April, 2000 indicate that there was difference of opinion with
regard to the grant of environmental clearance between the Ministry of
Water Resources and the Ministry of Environment & Forests. This led to
the matter being referred to the Prime Ministers Secretariat for clearance at
the highest level. A note dated 20th November, 1986 prepared by the
Ministry of Water Resources was forwarded to the Prime Minister
Secretariat as well as to the Ministry of Environment and Forests after
dealing with the environmental aspects relating to rehabilitation, catchment
area treatment, command area development, compensatory afforestation,
flora and fauna. This note indicated that there were two options with regard
to the clearance of the said project. One was to await for two to three years
for the completion of the operational plans and other detailed studies and
the second option was that the project should be given the necessary
clearance subject to the stipulation with regard to the action to be taken in
connection with various environmental aspects and appropriate monitoring
arrangements to ensure that the actions were taken in a time bound
manner. The Ministry of Water Resources recommended that it should be
possible to give environmental clearance of the project and ensure that the
conditions are properly met through a process of clear assignment of
responsibility and frequent monitoring. The modus operandi for instituting a
monitoring system could be discussed at the meeting.
On 26th November, 1986, a meeting took place which was attended,
inter alia, by the Secretary, Ministry of Water Resources, Secretary, Ministry
of Environment & Forests, Additional Secretary, Prime Minister Secretariat
and representatives of the Governments of Madhya Pradesh and Gujarat
regarding the environmental aspects of the Narmada Sagar and Sardar
Sarovar Project. The minutes of the meeting, inter alia, disclosed it was
decided that the Government of Gujarat would identify lands for allocation to
the project affected persons of Madhya Pradesh within a specified period of
time. The meeting also envisaged the arrangement of a Monitoring and
Enforcement Authority to monitor the project and to ensure that the actions
on the environmental aspects proceed according to the schedule and pari
passu with the rest of the project. This Authority was not to be mainly a
advisory one but was to be given executive powers of enforcement
including the power to order stoppage of construction activity in the event of
its being of the opinion that there was lack of progress in action on the
environmental front.
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On 19th December, 1986, the Secretary, Ministry of Environment and
Forests sent to the Secretary to the Prime Minister a combined note on the
environmental aspects of both the projects, namely, Narmada Sagar and
Sardar Sarovar Project. In this note, it was, inter alia, stated that there was
absence and inadequacy on some important environmental aspects even
though the Sardar Sarovar Project was in a fairly advance stage of
preparedness. The note also recommended the establishment of the
Narmada Management Authority with adequate powers and teeth to ensure
that the Environmental Management Plan did not remain only on paper but
was implemented; and implemented pari passu with engineering and other
works. In the end, in the note, it was stated as follows:
If, despite the meagre availability of data and the state of
readiness on NSP, the Government should decide to go ahead
with the project it is submitted that it should do so only on the
basis of providing a Management Authority as outlined above
with the hope that the public opposition, not just by vested
interests but by credible professional environmentalists, can be
overcome. Effective implementation of the engineering and
environmental measurers simultaneously would go a long way to
prove that even such a project can be implemented by
harmonising environmental conservation needs with the
development effort.
The choice is difficult but a choice has to be made.
Along with this note was the statement showing the cost and the benefits of
the Narmada Sagar and the Sardar Sarovar dam. The same reads as
follows:
COSTS NARMADASAGAR SARDAR SAROVAR
1. Dam construction Rs. 1400 crores Rs. 4240 crores
(1981 price level ) (1982 price level)
2. Loss of forest Rs. 320 crores
3. Environmental cost of loss
of forests Rs. 30923 crores + - Rs. 8190 crore
s
4. Catchment Area development Rs. 300 crores Not available
5. Command area development Rs. 243.7 crores Rs. 604.0 crores
Rs. 300.0 crores
(conjunctive use)
6. Loss of Mineral Reserves ---- ----
7. Diversion of 42 km Railway line ----- ----
8. Population affected 129396 (1981 census)
86572 (Excluding population
with land submerged for
short period every year)
9. Land submerged 91348 ha 39134 ha
Benefits
10. Area irrigated 123000 ha 1792000 ha
Net culturable land 140960 ha 212000
0 ha
11. Power Generations 223.5 MW(firm power) 300 MW
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1000 MV (Installed capacity) 1450 (Installed
118.3 MW in 2023 A.D.
After a series of meetings held between the Secretary to Prime
Ministers office as well as the Ministry of Water Resources, a detailed note
dated 15th January, 1987 was prepared by Mrs. Otima Bordia, Additional
Secretary to the Prime Minister. The notes opened by saying that Narmada
Sagar and Sardar Sarovar multipurpose projects have been pending
approval of the Government of India for a considerable amount of time. The
States of Madhya Pradesh and Gujarat have been particularly concerned
and have been pressing for their clearance. The main issues of
environmental concern related to the rehabilitation of the affected
population, compensatory afforestation, treatment of the catchment area,
command area development, pertaining particularly to drainage, water
logging and salinity. The said note mentioned that the Department of
Environment and Forests had sent a note with the approval of the Minister
for Environment and Forests and had recommended conditional approval
to the Narmada Sagar and Sardar Sarovar Projects subject to three
conditions:
i) Review of design parameters to examine the feasibility of modifying
the height of the dam;
ii) Preparation in due time, detailed and satisfactory plans for
rehabilitation, catchment area treatment, compensatory afforestation
and command area development;
iii) Setting up of Narmada Management Authority with adequate
powers and teeth to ensure that environmental management plans
are implemented pari passu with engineering and other works.
It is further stated in the note that the Ministry of Water Resources
and the State Governments had no difficulty in accepting conditions (ii) and
(iii). With regard to review of design parameters and dam height, the
Ministry of Water Resources had examined the same after taking into
consideration the comments of the Central Water Commission and
concluded that the reduction of the FRL of the Narmada Sagar project
would not be worthwhile. The Secretary to the Prime Minister had discussed
the matter with the Secretary, Ministry of Water Resources and Secretary,
Ministry of Environment and Forests and it was agreed that the
recommendation of the Minister of Environment and Forests of giving
clearance on the condition that items (ii) and (iii) referred to hereinabove be
accepted. The note also stated that in view of the technical report,
reduction in the dam height did not appear to be feasible. This note of
Mrs. Otima Bordia recommended that the Prime Ministers approval was
sought on giving conditional clearance. On this note, Mrs. Serla Grewal,
Secretary to the Prime Minister noted as follows:
Proposal at para 17 may kindly be approved. This project
has been pending clearance for the last 7 years and both
the C.Ms. of Gujarat and Madhya Pradesh are keenly
awaiting the clearance of the same. The agency, which is
proposed to be set up to monitor the implementation of this
project, will fully take care of the environmental degradation
about which P.M. was concerned. The Ministry of
Environment and Forests have recommended clearance of
this project subject to conditions which will take care of
P.Ms apprehensions. I shall request Secretary, Water
Resources, who will be Chairman of the Monitoring
Agency, to see that no violation of any sort takes place and
P.Ms office will be kept informed of the progress of this
project every quarter. The matter is urgent as last week
C.M. Gujarat had requested for green signal to be given to
him before 20th January.
P.M. may kindly approve.
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The Prime Minister Shri Rajiv Gandhi, instead of giving the approval, made the
following note:
Perhaps this is a good time to try for a River Valley Authority. Discuss
It appears that the Ministry of Environment and Forests gave its clearance to the
setting up of Inter-Ministerial Committee and on 8th April, 1987, following note
was prepared and forwarded to the Prime Minister.
This case has got unduly delayed. P.M. was anxious that speedy
action should be taken. As such, since the Ministry of
Environment have given its clearance subject to setting up of an
Inter-Ministerial Committee as indicated at A above, we may give
the necessary clearance. The three Chief Ministers may be
requested to come over early next week to give their clearance in
principle for the setting up of a River Valley Authority so that
simultaneous action can be initiated for giving practical shape to
this concept. The clearance of the project, however, should be
communicated within two weeks as I have been informed by Shri
Shiv Shanker and Shri Bhajan Lal that interested parties are likely
to start an agitation and it is better if clearance is communicated
before mischief is done by the interested parties.
Along with another affidavit of Shri P.K Roy, Under Secretary, Prime
Ministers Office dated 2nd May, 2000, some correspondence exchanged
between Legislature and the Prime Minister has also been placed on record
relating to the granting of the environmental clearance by the Prime
Minister. On 31st March, 1987, Shri Shanker Sing Vaghela, the then
Member of Parliament, Rajya Sabha had written a letter to the Prime
Minister in which it was, inter alia, stated that the foundation stone for the
Narmada Project had been laid 25 years ago by the late Pandit Jawahar Lal
Nehru and that after the Tribunals Award, Mrs. Indira Gandhi had cleared
the project in 1978, but still the environmental clearance had not so far been
given. It was also stated in his letter that the project was now being delayed
on account of so-called environmental problems. It was further stated in his
letter that the Sardar Sarovar Project, when completed, will solve more of
the pressing problems of environment than creating them. To this letter of
Shri Vaghela, the Prime Minister sent a reply dated 8th April, 1987 stating as
follows:
I have seen your letter of 31st March regarding the Narmada
Project. All aspects have to be carefully considered before
decisions are taken on a project of this size. This is being done.
The environment and ecological factors cannot be dis-
regarded. We cannot also dismiss the needs of our tribal people.
Safeguards are required to ensure that rehabilitation plans are
effective.
All these aspects are being examined and a decision will be
taken soon.
On 30th April, 1987, a press note was released by the Government of India,
in which it was stated that in a meeting presided over by the Prime Minister,
it was agreed by the Chief Ministers of Madhya Pradesh and Gujarat and
representatives of the Maharashtra Government that a high level River
Valley Authority would be set up for the control and development of the river
basin. This press note also stated that the Narmada Sagar and the Sardar
Sarovar Project on the river Narmada had been cleared. Soon, thereafter
Shri Ahmad Patel, Member of Parliament from Gujarat wrote a letter dated
14th April, 1987 to Shri Rajiv Gandhi expressing his gratitude for according
clearance to the Narmada multi-purpose project. This letter was replied to
on 22nd April, 1987 by Shri Rajiv Gandhi who thanked Shri Patel for writing
his letter dated 14th April, 1987 regarding the Narmada project. On 20th
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April, 1987, Shri Shanker Singh Vaghela wrote another letter to the Prime
Minister. While thanking him for clearing the project, it was stated that there
was apprehension about the environment and ecological factors and also
about the needs of the tribal people. The Prime Minister was requested to
clarify to the people of Gujarat whether or not these aspects have finally
been cleared or not and all the doubts on this front have been finally set at
rest or not. On 4th May, 1987 the Prime Minister replied to this letter in
which it was stated as follows:
There should be no grounds for any misunderstanding in this
regard. The Narmada Project has been cleared while at the same
time ensuring that environmental safeguards will be enforced and
effective measures taken for the rehabilitation of the tribals. You
could ask the Ministry of Water Resources or the State
Government for details.
Lastly, we need make reference to a letter dated 10th June, 1987 written by
Smt. Chandraben Sureshbhai Shrimali, an M.L.A. of Gujarat and the reply
of the Prime Minister thereto. In the said letter dated 10th June, 1987, Smt.
Shrimali thanked the Prime Minister for clearing the Narmada project and it
was stated that the dry land of Gujarat and Saurashtra would be fertilised
through Narmada Yojna. To this, reply dated 30th June, 1987 of the Prime
Minister was as follows:
Thank you for your letter of 10th June. The visit to
Surendranagar was useful and educative. We are all looking
forward to the early implementation of the Sardar Sarovar project.
The question of environmental protection also needs serious
attention. I wish you and the people of Surendranagar a good
monsoon.
From the documents and the letters referred to hereinabove, it is
more than evident that the Government of India was deeply concerned with
the environmental aspects of the Narmada Sagar and Sardar Sarovar
Project. Inasmuch as there was some difference of opinion between the
Ministries of Water Resources and Environment & Forests with regard to
the grant of environmental clearance, the matter was referred to the Prime
Minister. Thereafter, series of discussions took place in the Prime
Ministers Secretariat and the concern of the Prime Minister with regard to
the environment and desire to safeguard the interest of the tribals resulted
in some time being taken. The Prime Minister gave environmental
clearance on 13th April, 1987 and formal letter was issued thereafter on 24th
June, 1987.
It is not possible, in view of the aforesaid state of affairs, for this
Court to accept the contention of the petitioner that the environmental
clearance of the project was given without application of mind. It is evident,
and in fact this was the grievance made by Shri Vaghela, that the
environmental clearance of the project was unduly delayed. The
Government was aware of the fact that number of studies and data had to
be collected relating to environment. Keeping this in mind, a conscious
decision was taken to grant environmental clearance and in order to ensure
that environmental management plans are implemented pari passu with
engineering and other works, the Narmada Management Authority was
directed to be constituted. This is also reflected from the letter dated 24th
June, 1987 of Shri Mudgal giving formal clearance to the project.
Re: OTHER ISSUES RELATING TO ENVIRONMENT
Prior to the grant of the environmental clearance on 24th June, 1987,
sufficient studies were made with regard to different aspects of environment
on the basis of which conditional clearance was granted on 24th June, 1987,
one of the condition of clearance being that the balance studies should be
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completed within a stipulated time frame. According to the Government of
Gujarat, the conditions imposed in the environmental clearance granted on
June 24, 1987 were:
(a) The NCA would ensure that the environmental safeguard
measures are planned and implemented pari passu with the
progress of work on the project.
(b) The detailed survey/studies assured will be carried out as per
the schedule proposed and details made available to the
department for assessment.
(c) The catchment area treatment programe and rehabilitation plans
be so drawn so as to be completed ahead of reservoir filling.
(d) The department should be informed of progress on various
works periodically.
It was further submitted by the Government of Gujarat that none of these
conditions were linked to any concrete time frame.
(a) The first condition casts a responsibility on the NCA to ensure
that the environmental aspects are always kept in view. The
best way to attain the first and the fourth condition was to
create an environmental sub-group headed by the Secretary in
the Ministry of Environment and Forest.
(b) The second condition the conducting of surveys by its very
nature could not be made time bound. The surveys related to
various activities to undo any damage or threat to the
environment not only by the execution of the project but in the
long term. Therefore, any delay in the conduct of surveys was
not critical. Besides, a perusal of the latest status report on
environment shows that a large number of surveys were carried
out right from 1983 and also after 1987.
(c) The third condition has already stood fully complied with as
observed by Environment Sub-Group.
(d) The fourth condition again involved keeping the department
informed.
It was submitted that the concept of lapsing is alien to such
conditions. In other words, formal environmental and forest clearances
granted by the Ministry of Environment and Forests, Government of India
are not lapsed and are very much alive and subsisting.
With regard to the lapsing of the clearance granted in 1987, it was
contended by Mr. Harish Salve that a letter dated 25th May, 1992 was
written by the Secretary, Ministry of Environment and Forests, Government
of India to the Secretary, Ministry of Water Resources stating, inter alia, that
the conditions of clearance of the project were not yet met and, therefore, a
formal request for extension of environmental clearance, as directed by
Review Committee of Narmada Control Authority, may be made and failing
which, a formal notification may be issued revoking the earlier clearance.
It is, however, an admitted position that no formal notification has ever been
issued revoking and/or cancelling the aforesaid two clearances at any point
of time by the Ministry of Environment and Forests, Government of India.
The Secretary, Ministry of Environment and Forests has continued to hold
and chair the meetings of Environment Sub-Group, Narmada Control
Authority closely monitoring the execution of SSP for ensuring that
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environmental safeguard measures are implemented pari passu with the
progress of work. On 11th August, 1992, a letter was written by Narmada
Control Authority to the Secretary, Ministry of Environment and Forests
sending action plan and status in respect of environmental safeguard
measures taken and also stating amongst other details, the following:
A number of letters were exchanged between the MOWR and
MOEF and a great deal of discussion took place both in the
Environment Sub-Group and NCA as to whether an application
for extension of time as above is at all necessary. After a
detailed discussion in the last NCA meeting on 25th July, 1992,
it has been decided that NCA should clearly indicate the
additional time required for the completion of the remaining
studies like flora and fauna and some aspects of fisheries and a
revised action plan based thereon be also sent expeditiously.
XXXXX
XXXXX
Keeping in view the fact and circumstances mentioned above,
I request you to kindly agree to the schedule of the studies and
the follow up actions as presented here. A brief account of the
action plan together with bar charts are enclosed, presenting a
pictorial view.
On 15th December, 1992, a letter was written to the Secretary, Ministry of
Environment and Forests, more particularly stating as under, amongst other
things:
The Narmada Control Authority has already prepared an action
plan and status on the environmental measures of Sardar
Sarovar Project and submitted to the Ministry of Environment and
Forests vide their letter No. NCA/EM/683 dated 11.8.1992 for
concurrence. As may be seen from their report on action, so far
there is no safeguard measures.
During field season of every year this will be closely reviewed to
attain pari passu objectives so that the submergence during
monsoon is taken care of.
The above actions are scheduled to be completed by June,
1993. No doubt, action in Maharashtra is lagging. The matter
was taken up with the Chief Secretary of Maharashtra. A copy of
his reply dated 7.11.1992 is enclosed. You will observe that the
reasons for the lag are largely due to the un-cooperative and
agitational approach adopted by some people.
Taking all these into account, you will appreciate that the action
plans are adequate.
The Minister for Water Resources, Government of India wrote a letter on
27th January, 1993 to the Minister of State for Environment and Forests
stating that there had been no violation of environmental safeguard
measurers. On 7th July, 1993, the Secretary, Ministry of Water Resources,
Government of India wrote a letter to the Secretary, Ministry of Environment
and Forests, Government of India, more particularly stating as under:
Progress of all the environmental works is summarised in the
sheet enclosed herewith. I share your concern for initial delay in
some of the studies but now it seems that the work has started in
full swing. However, there is a need to keep a close watch and I
am advising the NCA for the same.
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By letter dated 17lth September, 1993, the Minister of State for Environment
and Forests, Government of India wrote to the Minister for Water
Resources, Government of India appreciating the efforts made by the
concerned State Governments in making the environmental plans. The
exchange of the aforesaid correspondence and the conduct of various
meetings of the Environment Sub-group from time to time under the
Chairmanship of the Secretary, Ministry of Environment and Forests,
disspells the doubt of the environment clearance having been lapsed. In
other words, there could not have been any question of the environmental
clearance granted to SSP being lapsed more particularly when the
Environment Sub-group had been consistently monitoring the progress of
various environmental works and had been observing in its minutes of
various meetings held from time to time, about its analysis of the works
done by the respective States in the matter of the status of studies, surveys
and environmental action plans in relation with:
(i) phased catchment area treatment;
(ii) compensatory afforestation;
(iii) command area development;
(iv) survey of flora, fauna etc.
(v) archeological and anthropological survey;
(vi) seismicity and rim stability of reservoir
(vii) health aspects and
(viii) fisheries development of SSP and NSP reservoirs.
Sh. Shanti Bhushan in the course of his submissions referred to the
report of the Morse Committee in support of his contentions that the project
was flawed in more ways than one.
The Morse Committee was constituted, as already noted, by the
World Bank. Its recommendations were forwarded to the World Bank.
Apart from the Criticism of this report from other quarters, the World Bank
itself, did not accept this report as is evident from its press release dated
22nd June, 1992 where it was, inter alia, stated as follows:
The Morse Commission provided a draft of its report to the Bank
for management comments several weeks prior to the final
release of the document. About two weeks before this release,
the commission provided a draft of its findings and
recommendations. The final version of the report is the sole
responsibility of its authors; the report was not cleared by the
World Bank.
On resettlement and rehabilitation (R&R), Bank management
agrees with the description of the R&R situation in each of the
three states and with the reports conclusions about the
shortcomings in the preparation and appraisal of the projects
R&R aspects. We also agree that work should have been done
earlier on the issue of people affected by the canal in Gujarat.
However, we do not share the view that resettlement would be
virtually impossible even if Maharashtra and Madhya Pradesh
adopted the liberal resettlement package provided for displaced
people by the State of Gujarat. Given the experience so far, and
the fact that most of the impact of submergence on people will
not occur until 1997, there is still time to develop meaningful
R&R packages and programs in consultation with the affected
peoples. Efforts are being intensified to achieve this.
On environment, bank management agrees with the independent
review on the need for a more effective central management in
the Narmada Basin on environment impact studies and mitigation
programms. Management also agrees on the need to accelerate
work on estuary studies and health maters in Gujarat. However,
management does not share the reviews conclusions about the
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environmental severity of the study delays. Command area
issues are being addressed, including issues of water logging
and salinity. On water availability (hydrology), Bank
Management disagrees with the finding that there is insufficient
impoundment of water upstream of the Sardar Sarovar Dam site
to make the irrigation system work as designed.
The Government of India vide its letter dated 7th August, 1992 from the
Secretary, Ministry of Environment and Forests did not accept the report
and commented adversely on it.
In view of the above, we do not propose, while considering the
petitioners contentions, to place any reliance on the report of Morse
Committee.
It was submitted on behalf of the petitioners that the command area
development was an important aspect as the benefits of the project
depended on this and if proper studies and plans were not done and not
implemented, the very areas that were supposed to benefit will end up
being rendered unfit for cultivation and the water logging and salinisation
could refer vast areas of the command unproductive. It was also submitted
that still there was no integrated command area environmental impact
assessment. After referring to the status reports and studies regarding the
command area development, it was submitted that there was need for some
independent agency to examine the various studies, action plans and the
experience and to see whether there was ground to believe that the
proposed measures will work or not. It was contended that master plan for
drainage and command area development was still not in place and even
the full studies had not been done.
While refuting the aforesaid contentions it was argued on behalf of
learned counsel for the respondents that the SSP will provide irrigation
water for a cultivable command area of 1.9 million hectares in Gujarat and
75,000 hectares in Rajasthan. The introduction of fresh water to the
drought-prone areas of Gujarat will create obvious benefits for the farming
communities. In order to safeguard these benefits, control and monitoring
was suggested by the Secretary, Ministry of Environment and Forests and
Chairman of the Environment Sub-group in the following areas from time to
time:
- drainage, water logging and soil salinity;
- water quality;
- forest loss;
- potential impact on flora and fauna;
- effects on public health;
- socio-economic impacts.
Pursuant thereto fifty in-depth studies had been carried out by the
State Governments of Gujarat and Rajasthan and some of the studies were
still in progress. One of the main objectives of carrying out these studies
was to prevent excessive use of ground water and water-logging.
There is no reason whatsoever as to why independent experts
should be required to examine the quality, accuracy, recommendations and
implementation of the studies carried out. The Narmada Control Authority
and the Environmental Sub-group in particular have the advantage of
having with them the studies which had been carried out and there is no
reason to believe that they would not be able to handle any problem, if and
when, it arises or to doubt the correctness of the studies made.
It was submitted by Sh. Shanti Bhushan that the catchment area
treatment programme was not to be done pari passu but was required to be
completed before the impoundment. This contention was based on the
terms of the letter dated 24th June, 1987 wherein conditional environmental
clearance was granted, inter alia, on the condition that the catchment area
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treatment programme and rehabilitation plans be drawn so as to be
completed ahead of reservoir filling. Admittedly, the impounding began in
1994 and the submission of Sh. Shanti Bhushan was that catchment area
treatment programme had not been completed by them and, therefore, this
very important condition had been grossly violated. Reference was also
made to the Minutes of the Environmental Sub-group meetings to show that
there had been slippage in catchment area treatment work.
The clearance of June, 1987 required the work to be done pari passu
with the construction of the dams and the filling of the reservoir. The area
wherein the rainfall water is collected and drained into the river or reservoir
is called catchment area and the catchment area treatment was essentially
aimed at checking of soil erosion and minimising the silting in the reservoir
within the immediate vicinity of the reservoir in the catchment area. The
respondents had proceeded on the basis that the requirement in the letter of
June, 1987 that catchment area treatment programme and rehabilitation
plans be drawn up and completed ahead of reservoir filling would imply that
the work was to be done pari passu, as far as catchment area treatment
programme is concerned, with the filling of reservoir. Even though the filling
of the reservoir started in 1994, the impoundment Award was much less
than the catchment area treatment which had been affected. The status of
compliance with respect to pari passu conditions indicated that in the year
1999, the reservoir level was 88.0 meter, the impoundment area was 6881
hectares (19%) and the area where catchment treatment had been carried
out was 128230 hectares being 71.56% of the total work required to be
done. The Minutes of the Environmental Sub-group as on 28th September,
1999 stated that catchment area treatment works were nearing completion
in the states of Gujarat and Maharashtra. Though, there was some
slippage in Madhya Pradesh, however, overall works by and large were on
schedule. This clearly showed that the monitoring of the catchment
treatment plan was being done by the Environmental Sub-group quite
effectively.
With regard to compensatory afforestation it was contended by Sh.
Shanti Bhushan that it was being carried out outside the project impact
area. Further, it was submitted that the practice of using waste land or
lesser quality land for compensatory afforestation means that the forest will
be of lesser quality. Both of these together defeated the spirit of the
compensatory afforestation. It was contended that the whole compensatory
afforestation programme was needed to be looked at by independent
experts.
While granting approval in 1987 to the submergence of forest land
and/or diversion thereof for the SSP, the Ministry of Environment and
Forests had laid down a condition that for every hectare of forest land
submerged or diverted for construction of the project, there should be
compensatory afforestation on one hectare of non-forest land plus
reforestation on two hectare of degraded forest. According to the State of
Gujarat, it had fully complied with the condition by raising afforestation in
4650 hectares of non-forest areas and 9300 hectares in degraded forest
areas before 1995-96 against the impoundment area of 19%. The pari
passu achievement of afforestation in Gujarat was stated to be 99.62%.
If afforestation was taking place on waste land or lesser quality land,
it did not necessarily follow, as was contended by the petitioners, that the
forests would be of lesser quality or quantity.
It was also contended on behalf of the petitioners that downstream
impacts of the project would include not only destruction of downstream
fisheries, one of the most important ones in Gujarat on which thousands of
people are dependent but will also result in salt water ingress. The project,
it was contended, will have grave impacts on the Narmada Estuary and
unless the possible impacts were properly studied and made public and
mitigation plans demonstrated with the requisite budget, one could not
accept the claim that these matters were being looked into. The need to
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assess the problem was stated to be urgent as according to the petitioners
rich fisheries downstream of the dam, including the famed Hilsa would be
almost completely destroyed. The salinity ingress threatened the water
supply and irrigation use of over 210 villages and towns and Bharuch city.
All these would not only have serious economic and other impacts but
would also directly destroy the livelihoods of at least 10000 fisher families.
Again all these contentions were based on the Morse Committee
Report which the World Bank and the Union of India had already rejected.
That apart, according to the respondents, in 1992 Sardar Sarovar Narmada
Nigam Limited issued an approach paper on environmental impact
assessment for the river reach downstream. This provided technical
understanding of the likely hydrological changes and possible impact in
relation thereto. It was further submitted by learned counsel for the
respondents that the potential for environmental changes in the lower river
and estuary had to be seen in the context of the long term development of
the basin. The current stage was clearly beneficial. The three stages
could be identified as follows:
Stage 1 covers the period roughly from the completion of Sardar Sarovar
Dam to the year 2015. Events occurring during this stage include (a) SSP
Canal Command will have reached full development and requires diversion
of some water, (b) the upstream demand will reach about 8 MAF and (c) the
Narmada Sagar Dam will have been built and placed in operation.
Stage 2 covers the period from 2015 and 2030 during which the demands
upstream of SSP continue to grow and will reach about 12 MAF still below
the volume of 18 MAF that Madhya Pradesh can take in a 75% year.
Stage 3 covers the period upto and beyond full basin development.
The report given by M/s. H.R. Wallingford in March, 1993 in respect of the
down stream impacts of Sardar Sarovar Dam observes, inter alia, as under:
The overall conclusion of the team undertaking the
assessment described in this report is that there are no
down steam impacts whose magnitude and effect are such
as to cause doubts to be cast over the wisdom of
proceeding with the Sardar Sarovar Projects provided that
appropriate monitoring and mitigation measurers are
applied. Much of this work is already in progress under the
auspices of the NPG, SSNNL and NCA. The
recommendations in this report are intended to provide a
synthesis of their work and suggestions as to whether it
might be modified to enhance its usefulness.
The said M/s. H.R. Wallingford in the findings of 1995
stated as under:
It is thought unlikely that any significant negative
environmental impacts will occur over the next 30 years as
a result of the project. Some possible adverse effects have
been identified the main one being the effect of flood
attenuation on Hilsa migration. These needs to be
monitored and more studies undertaken to better
understand the conditions which trigger spawning.
Beneficial impacts in this period include reduced flooding
and more reliable dry season flows as well as an overall
improvement of the health and well being of the people to
the reliable domestic water supply, improved nutrition and
enhanced economic activity.
The above report clearly demonstrates that the construction of dam would
result into more regulated and perennial flow into the river with an overall
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beneficial impact. It is also evident that until all the dams are constructed
upstream and the entire flow of river is harnessed, which is not likely in the
foreseeable future, there is no question of adverse impact including the
fishing activity and the petitioners assertions in this regard are ill-conceived.
The area of submergence was stated to be rich in archaeological
remains but it still remained to be studied. It was contended that there was
danger of rich historical legacy being lost and even a small increase in the
dam height would threaten to submerge many of the sites listed in the report
of the Archaeological Survey of India. There were stated to be five
monuments which would be affected at the dam height of 90 meter or
above and no work was stated to have commenced to protect any of the
five monuments.
According to the State of Gujarat, the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 charged the Central and/or
State Department of Archaeology with responsibility for the protection of
important cultural sites. Under the Act, sites were classified into three
categories as follows:
Type 1: Monuments of national importance which are protected by the
Central Government;
Type 2 : monuments of religious or cultural importance which are
protected by the State Government; and
Type 3 : monuments which are neither Centrally nor State protected, but
which are considered to be an important part of cultural heritage.
Under the same law, authorities charged with the protection of the
monuments are permitted to take suitable measures to ensure the
preservation of any protected site under threat from decay, misuse or
economic activity.
In the case of Sardar Sarovar, where several sites may be submerged, the
NDWT award stipulated that the entire cost of relocation and protection
should be chargeable to Gujarat. Relocation work was to be supervised by
the Department of Archaeology under the provisions of the Ancient
Monuments and Archaeological Sites and Remains Act, 1958.
The three State Governments carried out a complete survey of
cultural and religious sites within the submergence zone. The principle of
these surveys was to list all Archaeological sites, identify and name any site
under state protection and further identify sites of religious or cultural
significance which, although not protected under national law, were of
sufficient value to merit relocation. So far as the State of Gujarat is
concerned the Department of Archaeology surveyed archeological sites in
nineteen villages of submergence zone in Gujarat under the title of
Archaeological Survey of Nineteen Villages in Gujarat submerged by
Sardar Sarovar Reservoir, 1989.
In addition to baseline studies on archaeological aspects, work had been
carried out on the anthropological heritage of Narmada Basin, including
examination of evidence of ancient dwellings and cultural artifacts. The
principal studies in this behalf are described below:
Anthropological Survey of India: Narmada Salvage Plan: The
Narmada Salvage Plan contains detailed background data on
palaeoanthropological, human ecological and other aspects of
the Narmada Valley. By May, 1992, surface scanning of 17
sample villages coming under the submergence had been
carried out and 424 specimens including ancient tools etc. had
been collected.
Anthropological Survey of India. Peoples of India: This
project entailed a complete survey of 33 tribes of India
including those of Narmada Basin. The study covered all
aspects of tribal culture in India and was published in 61
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volumes in 1992.
Summary of current situation and progress, Government
of Gujarat
Survey of villages in
submergence zone
Complete for all
items in the State
Identification of cultural
sites
Complete for all
items in the State
Collection of data and
documentation of sites
Complete
Selection of appropriate
sites
Complete
Action Plan
Complete
It was further submitted on behalf of respondents that no centrally or state
protected cultural sites were located in the submergence area of the project.
In Gujarat, the Department of Archaeology concluded that the temples of
Shoolpaneshwar and Hampheshwar were important monuments and should
be moved to a higher level. Sites were selected for constructing new
Shoolpaneshwar and Hampheshwar temples in consultation with temple
trustees. Shoolpaneshwar had been relocated and reconstructured near
Gora, about 15 Km downstream from the present location. Hampheshwar
was also constructed at higher ground in consultation with the temple
trustees and pranpratistha was also planned on 22nd to 24th April, 2000 i.e.
before the temple was submerged.
In relation to flora and fauna studies, it was contended by the
petitioners that the studies had finished only recently and the action plans
were awaited in many cases. In the meanwhile, extensive deforestation of
the submergence zone had taken place, as also part of the area had been
submerged, even as the studies have been on. It was also contended that
the impact on some of these Wild Ass Sanctuary in Kutch would be very
severe.
The guidelines of the Ministry of Environment and Forests required
that while seeking environmental clearance for the hydropower projects,
surveys should be conducted so that the status of the flora and fauna
present could be assessed. A condition of environmental clearance of 1987
as far as it related to flora and fauna was that the Narmada Control
Authority would ensure in-depth studies on flora and fauna needed for
implementation of environmental safeguard measurers. It is the case of the
respondents that number of studies were carried out and reports submitted.
It was observed that the submergence area and catchment area on the right
bank of the proposed reservoir exhibited a highly degraded ecosystem
which was in contract to the left bank area where there was fairly good
forest cover which formed part of Shoolpaneshwar Wildlife Sanctuary. With
regard to the study of fauna, the said report indicated that a well-balanced
and viable eco-system existed in the Shoolpaneshwar Sanctuary.
Moreover, with the construction of dam, water availability and soil moisture
will increase and support varieties of plants and animals.
It was also contended on behalf of petitioners that the whole project
will have serious impacts on health, both around the submergence area and
in the command. The preventive aspects had not been given attention.
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There was no linkage between the studies and work.
On behalf of State of Gujarat, it was contended that large number of
studies had been carried out on the health profile of villagers including
studies on water related diseases in SSP command area including the area
downstream of the dam. The study of M.S. University in 1983 and other
studies concluded that the most common diseases in the basin were
Malaria, Scabies, Dysentery and Diarrhoea. Of these only a threat to
Malaria needed to be of concern. The study concluded that the incidence of
hygiene related diseases other than Malaria could be reduced by better
water availability. The Gujarat Work Plan covered villages within 10 KMs
radius of the reservoir including re-settled population and made provision for
the monitoring, surveillance and control of Malaria. The principal features of
the Gujarat Work Plan included establishment of a hospital at Kevadia near
the dam site, strengthening of laboratory facility including establishment of
mobile unit residual insecticidal spraying operations etc. This showed that
the area of public health was in no way being neglected.
The petitioner was also critical of the functioning of the
Environmental Sub-group as it was contended that the claims of the studies
and progress report were accepted at the face value and without
verification. It was also contended that the Ministry of Environment and
Forests had grossly abdicated its responsibility. This submission was
based on the premise that clearance, which had been granted, had lapsed
and the Ministry of Environment and Forests did not insist on the Ministry of
Water Resources for its renewal and further more the Ministry of
Environment and Forests had not taken any cognizance of the criticism
about environmental aspects contained in the Morse Committee Report.
Lastly the Five Member Group in its first report was critical in many respects
and pointed out studies which had remained incomplete but no cognizance
was taken by the Ministry of Environment and Forests. The repeated
abdication, it was submitted, of the responsibility by the Ministry of
Environment and Forests indicated that it was not taking the whole issue
with the seriousness it deserved.
On behalf of the State of Gujarat, it was contended that various
alleged dangers relating to environment as shown by the petitioners were
mostly based on the recommendations of the Morse Committee Report and
Five Member Group. While the report of Morse Committee does not require
our attention, the same not having been accepted either by the World Bank
or the Government of India. Para 4.5.2 of the report of Five Member Group
which relates to creation of the Environment Sub-group commends its
establishment, its observation about its powers is as follows:
4.5.2. It must be noted that the Environmental Sub-group is
not a body which merely observes and reports, but watchdog
body which can recommend even the stoppage of work if it
feels dissatisfied with the progress on the environment front.
The recommendations of the Environmental Sub-Group will
have to be considered by the NCA, and if there is any
difference of opinion at that level, it will have to be referred to
the Review Committee, which has the Minister of Water and
Environment and Forests as a member. It seems doubtful
whether any more effective mechanism could have been
devised or made to work within the framework of our existing
political and administrative structures, particularly in the context
of a federal system. Secretary (Environment & Forests) has, in
fact, been given a special position in the NCA inasmuch as he
can insist on matters being referred to the Review Committee
and at the Review Committee the Minister of Environment
and Forests forcefully plead the environmental cause; he can
also make the environmental point of view heard at the highest
level. If in spite of all these arrangements, the environmental
point of view fails to be heard adequately, and if project
construction tends to take an over-riding precedence, that is a
reflection of the relative political importance of these two
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points of view in our system. This can be remedied only in the
long term through perusation and education, and not
immediately through institutional arrangements which run
counter to the system. (Emphasis added)
Apart from the fact that we are not convinced that construction of the dam
will result in there being an adverse ecological impact there is no reason to
conclude that the Environmental Sub-group is not functioning effectively.
The group which is headed by the Secretary, Ministry of Environment and
Forests is a high powered body whose work cannot be belittled merely on
the basis of conjectures or surmises.
Sh. Shanti Bhushan, learned Senior Counsel while relying upon A.P.
Pollution Control Board Vs. Professor M.V. Mayadu (1999) 2 SCC 718
submitted that in cases pertaining to environment, the onus of proof is on
the person who wants to change the status quo and, therefore, it is for the
respondents to satisfy the Court that there will be no environmental
degradation.
In A.P. Pollution Control Boards case this Court was dealing with the
case where an application was submitted by a company to the Pollution
Control Board for permission to set up an industry for production of BSS
Castor Oil Derivatives. Though later on a letter of intent had been received
by the said company, the Pollution Control Board did not give its no-
objection certificate to the location of the industry at the site proposed by it.
The Pollution Control Board, while rejecting the application for consent, inter
alia, stated that the unit was a polluting industry which fell under the red
category of polluting industry and it would not be desirable to locate such an
industry in the catchment area of Himayat Sagar, a lake in Andhra Pradesh.
The appeal filed by the company against the decision of the Pollution Board
was accepted by the appellate authority. A writ petition was filed in the
nature of public interest litigation and also by the Gram Panchayat
challenging the order of the appellate authority but the same was dismissed
by the High Court. On the other hand, the writ petition filed by the company
was allowed and the High Court directed the Pollution Board to grant
consent subject to such conditions as may be imposed by it.
It is this decision which was the subject-matter of challenge in this
Court. After referring to the different concepts in relation to environmental
cases like the precautionary principle and the polluter-pays principle, this
Court relied upon the earlier decision of this Court in Vellore Citizens
Welfare Forum Vs. Union of India (1996) 5 SCC 647 and observed that
there was a new concept which places the burden of proof on the developer
or industrialist who is proposing to alter the status quo and has become part
of our environmental law. It was noticed that inadequacies of science had
led to the precautionary principle and the said precautionary principle in its
turn had led to the special principle of burden of proof in environmental
cases where burden as to the absence of injurious effect of the actions
proposed is placed on those who want to change the status quo. At page
735, this Court, while relying upon a report of the International Law
Commission, observed as follows:
The precautionary principle suggests that where there is an
identifiable risk of serious or irreversible harm, including, for
example, extinction of species, widespread toxic pollution is
major threats to essential ecological processes, it may be
appropriate to place the burden of proof on the person or entity
proposing the activity that is potentially harmful to the
environment.
It appears to us that the precautionary principle and the
corresponding burden of proof on the person who wants to change the
status quo will ordinarily apply in a case of pulluting or other project or
industry where the extent of damage likely to be inflicted is not known.
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When there is a state of uncertainty due to lack of data or material about the
extent of damage or pollution likely to be caused then, in order to maintain
the ecology balance, the burden of proof that the said balance will be
maintained must necessarily be on the industry or the unit which is likely to
cause pollution. On the other hand where the effect on ecology or
environment of setting up of an industry is known, what has to be seen is
that if the environment is likely to suffer, then what mitigative steps can be
taken to off set the same. Merely because there will be a change is no
reason to presume that there will be ecological disaster. It is when the
effect of the project is known then the principle of sustainable development
would come into play which will ensure that mitigative steps are and can be
taken to preserve the ecological balance. Sustainable development means
what type or extent of development can take place which can be sustained
by nature/ecology with or without mitigation.
In the present case we are not concerned with the polluting industry
which is being established. What is being constructed is a large dam. The
dam is neither a nuclear establishment nor a polluting industry. The
construction of a dam undoubtedly would result in the change of
environment but it will not be correct to presume that the construction of a
large dam like the Sardar Sarovar will result in ecological disaster. India
has an experience of over 40 years in the construction of dams. The
experience does not show that construction of a large dam is not cost
effective or leads to ecological or environmental degradation. On the
contrary there has been ecological upgradation with the construction of
large dams. What is the impact on environment with the construction of a
dam is well-known in India and, therefore, the decision in A.P. Pollution
Control Boards case (supra) will have no application in the present case.
Reference was made by Sh. Shanti Bhushan to the decision of the
United States District Court in the case of Sierra Club et. V. Robert F.
Froehlke [350bF.Supp.1280(1973)]. In that case work had begun on
Wallisville Project which, inter alia, consisted of a construction of a low dam.
It was the case of the plaintiff that the construction of the project would
destroy hundreds of thousands of trees and enormous grain, fish and other
wild life will lose their habitat and perish. It was contended that the
defendants were proceeding in violation of law by not complying with the
requirements of National Environmental Policy Act, 1969, [NEPA]. Plaintiff,
inter alia, sought an injunction for restraining the undertaking of the project
in violation of the said Act. The District Court held that notwithstanding the
substantial amount of work had already been done in connection with the
project but the failure to satisfy full disclosure requirement of NEPA
injunction would be issued to halt any further construction until requirements
of NEPA had been complied with, that even though there was no Act like
NEPA in India at the time when environmental clearance was granted in
1987, nevertheless by virtue of Stockholm Convention and Article 21 of the
Constitution the principles of Sierra Club decision should be applied.
In India notification had been issued under Section 3 of the
Environmental Act regarding prior environmental clearance in the case of
undertaking of projects and setting up of industries including Inter-State
River Project. This notification has been made effective from 1994. There
was, at the time when the environmental clearance was granted in 1987, no
obligation to obtain any statutory clearance. The environmental clearance
which was granted in 1987 was essentially administrative in nature, having
regard and concern of the environment in the region. Change in
environment does not per se violate any right under Article 21 of the
Constitution of India especially when ameliorative steps are taken not only
to preserve but to improve ecology and environment and in case of
displacement, prior relief and rehabilitation measures take place pari passu
with the construction of the dam.
At the time when the environmental clearance was granted by the
Prime Minister whatever studies were available were taken into
consideration. It was known that the construction of the dam would result in
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submergence and the consequent effect which the reservoir will have on the
ecology of the surrounding areas was also known. Various studies relating
to environmental impact, some of which have been referred to earlier in this
judgment, had been carried out. There are different facets of environment
and if in respect of a few of them adequate data was not available it does
not mean that the decision taken to grant environmental clearance was in
any way vitiated. The clearance required further studies to be undertaken
and we are satisfied that this has been and is being done. Care for
environment is an on going process and the system in place would ensure
that ameliorative steps are taken to counter the adverse effect, if any, on the
environment with the construction of the dam.
Our attention was also drawn to the case of Tennessee Valley
Authority v. Hiram G. Hill [437 US 153, 57 L Ed 2d 117, 98 S Ct 2279]
where the Tennessee Valley Authority had begun construction of the Tellico
Dam and reservoir project on a stretch of Little Tennessee River. While
major portion of the dam had been constructed the Endangered Species Act
1973 was enacted wherein a small fish popularly known as the Snail
darter was declared an endangered species. Environmental groups
brought an action in the United States District Court for restraining
impounding of the reservoir on the ground that such an action would violate
the Endangered Species Act by causing the snail darter extinction. The
District Court refused injunction but the same was granted by the United
States Court of Appeal. On further appeal the US Supreme Court held that
the Endangered Species Act prohibited the authority for further impounding
the river. The said decision has no application in the present case because
there is no such act like the Endangered Species Act in India or a
declaration similar to the one which was issued by the Secretary of the
Interior under that Act. What is, however, more important is that it has not
been shown that any endangered species exists in the area of
impoundment. In Tennessee Valley Authority case it was an accepted
position that the continued existence of snail darter which was an
endangered species would be completely jeopardised.
Two other decisions were referred to by Sh. Shanti Bhushan
Arlington Coalition on Transportation v. John A. Volpe [458 F.2d 1323
(1972)] and Environmental Defense Fund, Inc. v Corps of Engineers of
United States Army [325 F.Supp.749 (1971)]. In both these decisions it
was decided that the NEPA would be applicable even in case of a project
which had commenced prior to the coming into force of the said Act but
which had not been completed. In such cases there was a requirement to
comply with the provisions of NEPA as already noticed earlier. The
notification under Section 3 of the Environment Protection Act cannot be
regarded as having any retrospective effect. The said notification dated 27th
January 1994, inter alia, provides as follows:
Now, therefore, in exercise of the powers
conferred by sub-section (1) and clause (v) of sub-
section (2) of Section 3 of the Environment
(Protection) Act, 1986 (29 of 1986) read with clause
(d) of sub-rule (3) of rule 5 of the Environment
(Protection) Rules, 1986, the Central Government
hereby directs that on and from the date of
publication of this notification in the Official Gazette
expansion or modernization of any activity (if
pollution load is to exceed the existing one) or a
new project listed in Schedule I to this notification,
shall not be undertaken in any part of India unless it
has been accorded environmental clearance by the
Central Government in accordance with the
procedure hereinafter specified in this notification.
This notification is clearly prospective and inter alia prohibits the
undertaking of a new project listed in Schedule I without prior environmental
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clearance of the Central Government in accordance with the procedure now
specified. In the present case clearance was given by the Central
Government in 1987 and at that time no procedure was prescribed by any
statute, rule or regulation. The procedure now provided in 1994 for getting
prior clearance cannot apply retrospectively to the project whose
construction commenced nearly eight years prior thereto.
RELIEF AND REHABILITATION
It is contended by the petitioner that as a result of construction of
dam over 41,000 families will be affected in three States spread over 245
villages. The number of families have increased from 7000 families
assessed by the Tribunal. It was further contended that the submergence
area can be broadly divided into two areas, fully tribal area which covers the
initial reach of about 100 or so villages which are almost 100 % tribal and
hilly. These include all the 33 villages of Maharashtra, all 19 of Gujarat and
many of the Madhya Pradesh. The second part of the submergence area is
the mixed population area on the Nimad plains with a very well developed
economy that is well connected to the mainstream. While the tribal areas
are stated to be having a rich and diverse resource base and the self
sufficient economy, the lack of so-called modern amenities like roads,
hospitals and schools are far more a reflection of the neglect and disregard
by the Government over the last fifty years than on anything else. Of the
193 villages stated to be affected by Sardar Savorar submergence 140 lie in
the Nimad plains. The population of these villages are a mixture of caste
and tribal and these villages have all the facilities like schools, post offices,
bus service etc.
It was contended that whereas the project authorities talk only about
the families affected by submergence, none of the other families affected by
the project are considered as PAFs nor has any rehabilitation package been
designed for them. These non-recognised categories for whom no
rehabilitation package is given are stated to be those persons living in
submergence area who are not farmers but are engaged in other
occupation like petty traders, village shop-keepers who are to be affected by
submergence; colony affected people whose lands were taken in 1960 to
build the project colony, warehouses etc.; canal affected people who would
be losing 25 per cent of their holdings because of the construction of the
canals; drainage affected people whose lands will be acquired for drainage;
10,000 fishing families living downstream whose livelihood will be affected;
lands of the tribals whose catchment treatment area has been carried out;
persons who are going to be affected by the expansion Shoolopaneshwar
Sanctuary; persons going to be affected by Narmada Sagar Project and
Garudeshwar Weir. It was contended that there was an urgent need to
assess comprehensively the totality of the impact and prepare category
specific rehabilitation policies for all of them.
It was also submitted that the total number of affected families in all
the three States as per the Master Plan prepared by the Narmada Control
Authority is 40727. According to the petitioner, however, this figure is an
under-estimate and the estimate of the land required for these PAFs is also
on a much lower side. The basis for making this submission is:
1] In each village there are many persons left out of the Government list
of declared PAFs. These are joint holders [non recognised as landed
oustees or PAFs] and the adult sons.
2] Incorrect surveys have been conducted and the affected persons
have serious apprehensions about the validity of the surveys since at many
places the level markings are suspect, in many cases the people affected at
higher levels have been given notices for lower levels, many others at the
same levels have been left out and so on. It is also alleged that there have
been short-comings in the policies and if they are corrected many more
oustees will be entitled to PAFs status. Further more the cut off date for
PAFs in Madhya Pradesh including adult son is linked to the date of
issuance of notification. Since land acquisition process is still incomplete
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the number of adult sons entitled to land would increase with the issuance
of fresh Section 4 Notification.
From the aforesaid it was contended that the total impact in terms of
number of oustees as well as land entitlement will be much larger than what
is considered in the Master Plan.
It is also submitted that there was major lacunae in the said policy
like the three States having dissimilar policy for R&R. This difference in
rehabilitation packages of different States, with the package of Gujarat
being more favourable, is leading to a situation where the oustees are
forced to shift to Gujarat. The other lacunae which are stated to have many
serious problems are alleged to be non provision for fuelwood and grazing
land with fodder. No provision for rehabilitation of people involved in non-
agricultural occupation. According to the petitioner the number of affected
people even by submergence have been underestimated. The policy
regime governing them has many serious lacunae. The increase in the
numbers is due to lack of proper surveys and planning and the provision of
just and due entitlements to the PAFs. Since this process of providing just
entitlements is still incomplete, and the policies need a thorough review, the
numbers and entitlements are likely to go up further. Even the magnitude of
the task of R&R cannot be assessed properly till the above are considered
and proper policies introduced.
It is also contended that before embarking on the Sardar Sarovar
Project it was necessary that the Master Plan for rehabilitation of the
families to be affected is completed. According to the petitioner the Master
Plan which was submitted in the Court cannot be regarded as an
acceptable Master Plan inasmuch as it has no mention of people affected
by Sardar Sarovar project other than those affected by submergence and it
has no estimate of resource base of the oustees in their original village.
Further the plan makes no estimation of the forest land, grazing land and
resources being used by the oustees. The Master Plan persists with the
discriminatory and differential policies which are less than just to the
oustees. There is also no planning for community resettlement even though
the Award of the Narmada Tribunal made detailed provision regarding
rehabilitation of the oustees which required that there should be village wise
community rehabilitation.
In support of this contention reliance is placed on the following
stipulation for rehabilitation contained in the Award of the Narmada Tribunal
That Gujarat shall establish rehabilitation villages in Gujarat in the irrigation
command of the SSP on the norms hereafter mentioned for rehabilitation of
the families who are willing to migrate to Gujarat. The submission is that
no specific rehabilitation village, as envisaged by the Tribunals Award, has
been established in Gujarat. The issue of community re-settlement is stated
to be not merely an issue of community facility but is a more fundamental
issue. The issue is really one of preserving social fabric and community
relation of the oustees which, it is alleged, is being destroyed due to
dispersal of the community who are being resettled at different sites.
Dealing with the situation of those oustees who have been resettled
in Gujarat it is submitted by the petitioner that there are large number of
grievances of the said outstees in 35 re-settlement sites. With the passage
of time the number of problems overall would become much more, is the
contention. The petitioner finds fault with the quality of land which has been
given in Gujarat to the oustees contending that large number of oustees
have been given land outside the command area of irrigation and in some
re-settlement sites there is a serious water-logging problem. It also
contends that though some amenities have been provided but they are not
adequate. It is also the case of the petitioner that sufficient land for re-
settlement of the oustees from Madhya Pradesh is not available in Gujarat
despite the claim of the State of Gujarat to the contrary.
With regard to Maharashtra it is contended by the petitioner that the
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official figure of the total number of PAFs affected in Maharashtra is not
correct and the number is likely to be more than 3113 PAFs estimated by
the State of Maharashtra. Further-more adequate land of desired quality
has not been made available for resettlement till 90 mtr. and even
thereafter. Reference is made to the affidavit of the State of Maharashtra in
which it is stated that it proposes to ask for the release of 1500 hectares of
forest land for re-settlement and the submission on behalf of the petitioner is
that release of such land shall be in violation of Forest Conservation Act,
1980 and is not in public interest for forest cover will be further depleted.
With regard to the State of Madhya Pradesh it is submitted that as
per the award the PAFs have a right to choose whether to go to Gujarat or
to stay in the home State. The State of Madhya Pradesh is stated to have
planned the whole re-settlement based on the assumption that
overwhelming proportion of oustees entitled to land will go to Gujarat yet
even for the limited number of oustees who are likely to stay in Madhya
pradesh the submission is that no land is available. The petitioner also
disputes the averment of the State of Madhya Pradesh that the oustees
have been given a choice as to whether they would like to go to Gujarat or
stay in the home State. According to the petitioner the majority of the
oustees would prefer to stay in the home State that is Madhya Pradesh but
sufficient land for their resettlement in Madhya Pradesh is not available.
According to the petitioner the State of Madhya Pradesh has stated that it
does not have land for any PAFs above 830 and even for 830 PAFs the
land is not available. It is also submitted that the Madhya Pradesh
Government cannot wriggle out of its responsibility to provide land for the
oustees by offering them cash compensation. The petitioner finds fault with
the effort of the State of Madhya Pradesh to push the oustees to Gujarat
whose rehabilitation scheme is more attractive and beneficial than that of
Madhya Pradesh.
The petitioner further contends that one of the fundamental principle
laid down is that all the arrangements and resettlement of the oustees
should be made one year in advance of submersion. In B.D. Sharma Vs.
Union of Indias case this Court has held that resettlement and rehabilitation
has to be done at least six months in advance of submersion, complete in
all respects. It is, therefore, contended that since offers to the Madhya
Pradesh oustees affected at 90 mtr. to be settled in Madhya Pradesh has
not been made, there cannot be any question of further construction till one
year after the resettlement of these PAFs at 90 mtr.
The petitioner is also critical of the functioning of the R&R Sub-group
and it is contended that the said Sub-group has not taken any cognizance of
the various issues and problems enumerated by the petitioner. It is
submitted that in assuring that the relief and rehabilitation arrangements are
being done the said R&R Sub-group merely accepts the assertions of the
Government rather than verifying the claims independently. There is also a
complaint regarding the manner in which the R&R Committee takes
decision on the spot when it makes frequent visits. It is contended that the
decisions which are taken in an effort to solve the grievances of the oustees
is done in the most insensitive way. The R&R Sub-group, it is contended, is
an official agency of the Government itself being a Sub-group of the NCA,
which is pushing the project ahead and the question raised by the petitioner
is as to how can the same body which is building a project and executing
the R&R be also monitoring it.
It is a case of the petitioners that there is a need for independent
monitoring agency in the three States who should be asked to monitor the
R&R of the oustees and see to the compliance with the NDWT award. No
construction should be permitted to be undertaken without clearance from
this authority. Lastly it is contended that large number of grievances are
persisting even after twenty years and the pace of resettlement has been
slow. The petitioner seems to have contended that the relief and
rehabilitation can be manageable only if the height of the dam is
significantly lessened which will reduce submersion and displacement of
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people.
In order to consider the challenge to the execution of the project with
reference to Relief and Rehabilitation it is essential to see as to what is the
extent and the nature of submergence.
The Sardar Sarovar Reservoir level at 455 ft. would affect 193
villages in Madhya Pradesh, 33 villages in Maharashtra and 19 villages in
Gujarat. The submergence villages are situated on the banks of river
Narmada having gentle to steep slopes of the Satpura hills. A village is
considered affected even when the water level touches the farm/hut at
lowest level. It may be noted that only 4 villages (3 villages in Gujarat and 1
village in Madhya Pradesh) are getting submerged fully and the rest 241
villages are getting affected partially.
The state-wise land coming under submergence (category-wise) is
given below:
STATES
(In(In Hectares)
S
S
r
N
o
.
Type of land
GUJARAT
MAHARASHTRA
MADHYA
PRADESH
TOTAL
1
Cultivated
land
1877
1519
7883
11279
2
Forest Land
4166
6488
2731
13385
3
Other land
including river
bed
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1069
1592
10208
12869
Total land
7112
9599
20822
37533
The aforesaid table shows that as much as 12869 hectares of the
affected land is other than agricultural and forest and includes the river bed
area.
When compared to other similar major projects, the Sardar Sarovar
Project has the least ratio of submergence to the area benefited (1.97%
only). The ratio of some of the existing schemes is as much as 25% as can
be seen from the table below:
S
Sr.
No.
Name of
Project
State
Benefite
d Area
(in ha)
Subme
rgence
Area
(in ha)
Irrigation
benefit per ha.
Submergence
Percentag
e of area
submerge
d to area
irrigated
1
Hirakud
Orissa
251150
73892
3.40
29.42
2
Shriram-
sagar
Andhra
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Pradesh
230679
44517
5.24
19.14
3
Gandhisa
gar
Madhya
Pradesh
503200
66186
7.60
13.15
4
Paithan
Maharasht
ra
278000
35000
7.94
15.29
5
Tungbha
dra
Karnataka
372000
37814
9.84
10.16
6
.
Pench
Maharasht
ra
94000
7750
12.13
8.24
7
.
Nagarjun
-sagar
Andhra
Pradesh
895000
28500
31.40
3.18
8
.
Bhakra
Himachal
Pradesh
676000
16800
40.24
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2.48
9
Sardar
Sarovar
Gujarat
1903500
37533
50.71 1.97
Countering the assertion that the construction of the dam would
result in large scale relocation and uprooting of tribals, the factual position
seems to be that the tribals constitute bulk of PAFs in Gujarat and
Maharasthra, namely, 97% and 100% respectively. In the case of Madhya
Pradesh, the tribals PAFs are only 30% while 70% are non-tribals.
The tribals who are affected are in indigent circumstances and who
have been deprived of modern fruits of development such as tap water,
education, road, electricity, convenient medical facilities etc. The majority of
the project affected families are involved in rain-fed agricultural activities for
their own sustenance. There is partial employment in forestry sector.
Since the area is hilly with difficult terrain, they are wholly dependent on
vagaries of monsoon and normally only a single crop is raised by them. Out
of the PAFs of Madhya Pradesh who have re-settled in Gujarat, more than
70% are tribal families. Majority of the total tribal PAFs are stated to have
already been re-settled in Gujarat after having exercised their option. It is
the contention of the State of Gujarat that the tribals in large number have
responded positively to the re-settlement package offered by that state.
In Madhya Pradesh, the agricultural lands of the tribal villages are
affected on an average to the extent of 28% whereas in the upper reaches
i.e. Nimad where the agriculture is advanced, the extent of submergence,
on an average, is only 8.5%. The surveys conducted by HMS Gour
University (Sagar) the Monitoring and Evaluation Agency, set up by
Government of Madhya Pradesh, reveals that the major resistance to
relocation is from the richer, non-tribal families of Nimad who fear shortage
of agricultural labour if the landless labourers from the areas accept re-
settlement.
The displacement of the people due to major river valley projects has
occurred in both developed and developing countries. In the past, there
was no definite policy for rehabilitation of displaced persons associated with
the river valley projects in India. There were certain project specific
programmes for implementation on temporary basis. For the land acquired,
compensation under the provisions of Land Acquisition Act, 1894 used to be
given to the project affected families. This payment in cash did not result in
satisfactory resettlement of the displaced families. Realising the difficulties
of displaced persons, the requirement of relief and rehabilitation of PAFs in
the case of Sardar Sarovr Project was considered by the Narmada Water
Disputes Tribunal and the decision and final order of the Tribunal given in
1979 contains detailed directions in regard to acquisition of land and
properties, provision for land, house plots and civic amenities for the re-
settlement and rehabilitation of the affected families. The re-settlement
policy has thus emerged and developed along with Sardar Sarovar Project.
The Award provides that every displaced family, whose more than
25% of agricultural land holding is acquired, shall be entitled to and be
allotted irrigable land of its choice to the extent of land acquired subject to
the prescribed ceiling of the State concerned with a minimum of two
hectares land. Apart from this land based rehabilitation policy, the Award
further provides that each project affected persons will be allotted a house
plot free of cost and re-settlement and rehabilitation grant. The civic
amenities required by the Award to be provided at places of re-settlement
include one primary school for every 100 families, one Panchayat Ghar, one
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dispensary, one seed store, one childrens park, one village pond and one
religious place of worship for every 500 families, one drinking water well
with trough and one tree platform for very 50 families; approach road linking
each colony to main road; electrification; water supply, sanitary
arrangement etc. The State Governments have liberalised the policies with
regard to re-settlement and have offered packages more than what was
provided for in the Award e.g the Governments of Madhya Pradesh,
Maharashtra and Gujarat have extended the R&R benefits through their
liberalised policies even to the encroachers, landless/displaced persons,
joint holders, Tapu land (Island) holders and major sons (18 years old) of all
categories of affected persons. The Government of Maharasthra has
decided to allot one hectare of agricultural land free of cost even to
unmarried major daughters of all categories of PAFs.
In the environmental clearance granted by the Ministry of
Environment and Forests vide its letter dated 24th June, 1987, one of the
conditions stipulated therein was for information from the project authorities
on various action plans including Rehabilitation Master Plan of 1989.
It is the contention of the petitioners that the failure to prepare a
Master Plan constitutes non-compliance with the requirement of the
Tribunals Award as well as environmental clearance. The Tribunals
Award does not use the expression Master Plan but as per clause XI Sub-
clause IV(2)(iii), what is required, is as under:
The three States by mutual consultation shall determine within
two years of the decision of the Tribunal, the number and
general location of rehabilitation villages required to be
established by Gujarat in its own territory.
It is with regard to this clause in the Award that, presumably, the
aforesaid letter of 24th June, 1987 granting environmental clearance
required the preparation of the new Master Plan.
In 1988 when the project was first cleared by the Planning
Commission from investment angle, it was estimated that 12180 families
would be affected in three States. Based on these numbers, the State
Governments independently prepared their action plans and announced
their R&R policy based on Tribunals Award. On the basis of the said action
plans the Narmada Control Authority submitted Rehabilitation Master Plan
to the Ministry of Environment and Forests along with its letter dated
¾.5.1989. Out of the total population, which is affected by the
submergence, large number are tribals and hence attention was paid by the
State Governments to liberalise their policies for protecting the socio-
economic and cultural milieu and to extend the R&R benefits even to other
categories of persons who were not covered by the Tribunals Award. This
led to the liberalisation of the R&R packages by the three States which
packages have been referred to hereinabove. As a result of the
liberalisation of the packages, the number of PAFs as estimated in 1992 by
the State Governments were 30144. Based on the material available, the
three State Governments prepared individual action plans in 1993 but those
action plans were integrated by the Narmada Control Authority first in 1993
and again in 1995 as an integrated Master Plan to present a holistic picture
of the R&R programme. The Master Plan deals with socio-economic and
cultural milieu of PAFs, the legal framework, R&R policy and procedures,
implementation machinery, organisation for R&R, monitoring and
evaluation, empowerment of women and youth, special care for vulnerable
groups, financial plans for R&R etc. As per the 1990 Master Plan the total
PAFs have increased to 40227 from 30144 due to addition of 100 more
genuine PAFs in Maharashtra. This Master Plan includes village-wise,
category-wise PAFs and their preference in R&R to settle in home State or
in Gujarat.
The reason for increase in number of PAFs has been explained in the
Master Plan and the reasons given, inter alia, are:
(a) After CWC prepared backwater level data, the number of
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PAFs in Madhya Pradesh (MP) increased by 12000 PAFs as
their houses are affected in a 1 in 100 years flood.
(b) Government of Gujarat (GOG) included major sons of the
dyke villages as PAFs.
(c) Cut off date for major sons was extended by GOG and
Government of Maharashtra (GOM).
(d) PAFs affected in MP, have increased due to delay in
publication of Section 4 notification under the Land Acquisition
Act.
(e) Persons socially or physically cut off due to impounding of
water in reservoir, are also considered as PAFs by all the
three States.
(f) All the three States decided to consider encroachers as PAFs.
(g) Major unmarried daughters in Maharashtra are considered as
a separate family by Government of Maharashtra.
(h) Some genuine PAFs were earlier left out (as many stayed in
remote areas or used to undertake seasonal migration to
towns and developed areas in search of casual work).
As far as the State of Gujarat is concerned, its contention is that the
task of R&R is not impossible as recognised by the FMG-I in its 1994 report
and according to the State, it is fully ready and prepared to re-settle in
Gujarat all the PAFs upto FRL 455 ft.
On 13th November, 1996, a meeting of the Review Committee of the
Narmada Control Authority chaired by the Union Minister of Water
Resources was held. This meeting was attended by the Chief Ministers of
all the States including Rajasthan and representatives of Ministry of
Environment and Forests, Ministry of Social Justice and Empowerment,
Government of India. In the meeting it was unanimously decided that the
reviews of the implementation of re-settlement and rehabilitation measures
will be undertaken for every five meter height of the dam jointly by the
concerned R&R Sub-group and Environmental Sub-group so that work
could progress pari passu with the implementation measurers. In its
meeting held on 6th January, 1999, R&R Sub-Group of Narmada Control
Authority observed that arrangements made by the States for R&R of the
balance families pertaining to the dam height EL 90 meter were adequate
and a meeting of the party States should be convened shortly to finalise the
action plan. Pursuant thereto a special Inter-State Meeting was convened
under the chairmanship of the Secretary to the Government of India,
Ministry of Social Justice and Empowerment on 21st January, 1999 at New
Delhi and action plan for re-settlement and rehabilitation for balanced
families of dam height EL 90 meter was finalised for implementation by the
States. It is the case of the State of Gujarat that it had issued notices and
made offers in January, 1998 to PAFs affected at RL 90 meter in connection
with the selection of land and their re-settlement in Gujarat. According to it,
even in respect of PAFs affected at RL 95 meter, notices were issued in
January, 1999 and to the PAFs included in the subsequent list, notices were
issued in September 1999. The process of land selection by PAFs who had
opted to resettle in Gujarat at RL 95 meter was already started. According
to the Union of India, the Master Plan was under implementation and the
progress of R&R at various elevations of dam viz. EL 90 meter, EL 95
meter, EL 110 meter and FRL 138.68 meter has been made.
The measures which have been implemented for sustainable
development with regard to preserving the socio-cultural environment of the
displaced persons in the States of Maharashtra, Gujarat and Madhya
Pradesh are stated to be as follows:
? Three choices to the people for the selection of relocation sites.
? Integration of the displaced person with the neighbouring villages
by organising medical check-up camps, animal husbandry camps,
festivals, eye camps, rural development seminar for village
workers etc.
? Establishment of rehabilitation committees at different levels.
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? Respect of traditional beliefs, rituals and rights at the starting of
house construction, the day and time of leaving the old house and
village and the day and time of occupying the new house etc.
? The sacred places at the native villages are being recreated along
with their settlements at new sites.
? Installation of all the religious deities with the due consultation of
religious heads.
? Promotion of cultural milieu viz. Social festivals, religious rights,
rights of passage, presence of priests, shaman, kinsmen,
clansmen etc.
? Special consideration for the preservation of holistic nature of the
culture.
? Proper use of built-in-mechanism of cultural heritage of the
displaced persons.
? Launching of culturally appropriate development plan.
? Genuine representation of the traditional leader.
The Tribunal had already made provision of various civic amenities
which were further liberalised by the State Governments during
implementation. The existing development programmes were strengthened
for ensuring sustainable development at the rehabilitation sites. These
were Integrated Rural Development Programme (IRDP) for agriculture,
business and village industries; Integrated Child Development Scheme
(ICDS) for nutrition, health and education; Jawahar Rojgar Yojna (JRY);
aids for improved seeds, fertilizers, irrigation, animal husbandry; Training
Rural Youth for self-employment (TRYSEM); Employment Guarantee
Scheme (EGS), Social Assistance; Industrial Training Institute (ITI); Tribal
Development Programme (TDP), financial benefits to the backward classes,
economically weaker sections, tribals and other backward classes (OBC),
eye camps, subsidies to farmers (seed, tractorisation, fertilizsers, diesel,
etc.) agricultural prices support subsidy etc.
Other benefits which were extended for improving the quality of life of
the re-settled PAFs included fodder farm, mobile sale, shop of fodder,
seeds cultivation training, initial help in land preparation for agricultural
activities, better seeds and fertilizers, access to finance, special programme
for women in the traditional skills enterpreneurship development,
employment skill formation, different plantation programmes, special
emphasis for pasture management, environment awareness and education
programme, programmes for bio-gas/smokeless chulhas, safe drinking
water supply, electricity, lift irrigation, fertilizers kit distribution, gypsum
treatment of soil etc.
The project authorities in these three States of Madhya Pradesh,
Gujarat and Maharashtra represented that comprehensive health care was
available in tribal areas where the displaced families had been re-settled. It
was contended that extensive preventive health measures like mass
immunization, anti-malaria programme, family welfare programmes, child
development schemes etc. had been undertaken. What is important is that
primary health centres were established at relocation sites for all necessary
health facilities to the PAFs.
The submission on behalf of Union of India was that there was a
well- established mechanism of Government of India for coordination and
monitoring of Re-settlement & Rehabilitation (R&R) programmes in case of
Sardar Sarovar Project. The R&R Sub-group and Rehabilitation Committee
of Narmada Control Authority are responsible for applying its independent
mind on R&R. The Sub-group convenes its meeting regularly to monitor
and review the progress of R&R while Rehabilitation Committee visits the
submergence areas/relocation sites to see whether the rehabilitation is
taking place physically and to hear the individual problems of the PAPs.
The R&R group, keeping in view the progress of relief and rehabilitation,
has not permitted the height to be raised, until and unless it is satisfied that
adequate satisfactory progress has been made with regard to R&R.
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Whereas at an earlier point of time in 1994, the construction schedule had
required the minimum block level to be raised to 85 meters, the R&R Sub-
group had permitted the same to be raised to EL 69 meter only during that
period to match the R&R activity. It was in the meeting of R&R Sub-group
on 6th January, 1999 after the R&R Sub-group had reviewed the progress
and had satisfied itself that the land for re-settlement in Gujarat,
Maharashtra and Madhya Pradesh, which were available, was more than
required for the re-settlement of the balanced PAFs that it cleared the
construction upto the dam height EL 90 meters. The action plan for the
same had been approved and is under implementation by the States
concerned.
The petitioners had contended that no proper surveys were carried
out to determine the different categories of affected persons as the total
number of affected persons had been shown at a much lower side and that
many had been denied PAF status. From what is being stated
hereinabove, it is clear that each State has drawn detailed action plan and
it is after requisite study had been made that the number of PAFs have
been identified. The number has substantially increased from what was
estimated in the Tribunals Award. The reason for the same, as already
noticed, is the liberalisation of the R&R packages by the State
Governments. Except for a bald assertion, there appears to be no material
on which this Court can come to the conclusion that no proper surveys had
been carried out for determining the number of PAFs who would be
adversely affected by the construction of the dam.
Re-settlement and rehabilitation packages in the three States were
different due to different geographical, local and economic conditions and
availability of land in the States. The liberal packages available to the
Sardar Sarovar Project oustees in Gujarat are not even available to the
project affected people of other projects in Gujarat. It is incorrect to say that
the difference in R&R packages, the package of Gujarat being the most
liberal, amounts to restricting the choice of the oustees. Each State has its
own package and the oustees have an option to select the one which was
most attractive to them. A project affected family may, for instance, chose
to leave its home State of Madhya Pradesh in order to avail the benefits of
more generous package of the State of Gujarat while other PAFs similarly
situated may opt to remain at home and take advantage of the less liberal
package of the State of Madhya Pradesh. There is no requirement that
the liberalisation of the packages by three States should be to the same
extent and at the same time, the States cannot be faulted if the package
which is offered, though not identical with each other, is more liberal than
the one envisaged in the Tribunals Award.
Dealing with the contention of the petitioners that there were large
number of persons who were living in the submergence area and were not
farmers and would lose their livelihood due to loss of the community and/or
loss of the river and were not being properly rehabilitated, Mr. Harish Salve,
learned Senior Counsel contended that this averment was not true.
According to him, all the families in the 105 hilly tribal villages were
agriculturists, cultivating either their own land or Government land and all of
whom would be eligible for alternative agricultural land in Gujarat. Only a
small number of non-agriculturists, mainly petty shopkeepers were found in
these villages of tribal areas. In Gujarat there were 20 such non-
agriculturists families out of a total of 4600 affected families and all of these
had been re-settled as per their choice so that they could restart their
business. In Maharashtra out of 3213 affected families, not a single family
was stated to fall under this category. Amongst the affected families of
Madhya Pradesh, the figure of such non-agriculturists family was also
stated to be not more than couple of 100. In our opinion it is neither
possible nor necessary to decide regarding the number of people likely to
be so affected because all those who are entitled to be rehabilitated as
per the Award will be provided with benefits of the package offered and
chosen.
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With regard to the colony affected people whose 1380 acres of land
was acquired in six villages for the construction of a colony, most of the
landholders had continued to stay in their original houses and about 381
persons were stated to have been provided permanent employment in the
project works. At the time, the land was acquired in 1962-63, compensation
was paid and in addition thereto, the Government of Gujarat devised a
special package in August, 1992 providing ex-gratia payment upto Rs.
36000.00 to the land losers for purchase of productive assets or land for
those who had not received employment in the project.
Dealing with the contention of the petitioners that there will be 23500
canal affected families and they should be treated at par to that of oustees
in the submergence area, the respondents have broadly submitted that
there is a basic difference in the impacts of the projects in the upstream
submergence area and its impacts in the beneficiary zone of the command
area. While people, who were oustees from the submergence zone,
required re-settlement and rehabilitation, on the other hand, most of the
people falling under the command area were in fact beneficiaries of the
projects and their remaining land would now get relocated with the
construction of the canal leading to greater agricultural output. We agree
with this view and that is why, in the Award of the Tribunal, the State of
Gujarat was not required to give to the canal affected people the same relief
which was required to be given to the oustees of the submergence area.
Dealing with the contention of the petitioners that the oustees were
not offered a chance to re-settle in Gujarat as a community and that there
was a clear requirement of village-wise communication rehabilitation which
had not been complied with, the contention of the respondents was that no
provision of Tribunals Award had been shown which caused any such
obligation on the Government of Gujarat. What the Award of the Tribunal
required is re-settlement of the PAFs in Gujarat at places where civic
amenities like dispensary, schools, as already been referred to
hereinabove, are available.
Subsequent to the Tribunals Award, on the recommendation of the
World Bank, the Government of Gujarat adopted the principle of re-
settlement that the oustees shall be relocated as village units, village
sections or families in accordance with the outstees preference. The
oustees choice has actively guided the re-settlement process. The
requirement in the Tribunals Award was that the Gujarat shall establish
rehabilitation villages in Gujarat in the irrigation command of the Sardar
Sarovar Project on the norms mentioned for rehabilitation of the families
who were willing to migrate to Gujarat. This provision could not be
interpreted to mean that the oustees families should be resettled as a
homogeneous group in a village exclusively set up for each such group.
The concept of community wise re-settlement, therefore, cannot derive
support from the above quoted stipulation. Besides, the norms referred to
in the stipulation relate to provisions for civic amenities. They vary as
regards each civic amenity vis-Ã -vis the number of oustees families. Thus,
one panchayat ghar, one dispensary, one childrens park, one seed store
and one village pond is the norm for 500 families, one primary school (3
rooms ) for 100 families and a drinking water well with trough and one
platform for every 50 families. The number of families to which the civic
amenities were to be provided was thus not uniform and it was not possible
to derive therefrom a standardised pattern for the establishment of a site
which had nexus with the number of oustees families of a particular
community or group to be resettled. These were not indicators envisaging
re-settlement of the oustees families on the basis of tribes, sub-tribes,
groups or sub-groups.
While re-settlement as a group in accordance with the oustees
preference was an important principle/objective, the other objectives were
that the oustees should have improved or regained the standard of living
that they were enjoying prior to their displacement and they should have
been fully integrated in the community in which they were re-settled. These
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objectives were easily achievable if they were re-settled in the command
area where the land was twice as productive as the affected land and where
large chunks of land were readily available. This was what the Tribunals
Award stipulated and one objective could not be seen in isolation of the
other objectives.
The Master Plan, 1995 of Narmada Control Authority also pointed out
that "the Bhils, who are individualistic people building their houses away
from one another, are getting socialised; they are learning to live together".
Looking to the preferences of the affected people to live as a community,
the Government of Gujarat had basically relied on the affected families
decision as to where they would like to relocate, instead of forcing them to
relocate as per a fixed plan.
The underlined principle in forming the R&R policy was not merely of
providing land for PAFs but there was a conscious effort to improve the
living conditions of the PAFs and to bring them into the mainstream. If one
compares the living conditions of the PAFs in their submerging villages with
the rehabilitation packages first provided by the Tribunals Award and then
liberalised by the States, it is obvious that the PAFs had gained
substantially after their re-settlement. It is for this reason that in the Action
Plan of 1993 of the Government of Madhya Pradesh it was stated before
this Court that therefore, the re-settlement and rehabilitation of people
whose habitat and environment makes living difficult does not pose any
problems and so the rehabilitation and re-settlement does not pose a threat
to environment. In the affidavit of Dr. Asha Singh, Additional Director
(Socio & CP), NVDA, as produced by the Government of Madhya Pradesh
in respect of visit to R&R sites in Gujarat during 21st to 23rd February, 2000
for ascertaining the status relating to grievances and problems of Madhya
Pradesh PAFs resettled in Gujarat, it was, inter alia, mentioned that the
PAFs had informed that the land allotted to them is of good quality and they
take the crops of Cotton, Jowar and Tuwar. They also stated that their
status has improved from the time they had come to Gujarat but they want
that water should start flowing in the canals as soon as possible and in that
case they will be able to take three crops in one year as their land is in the
command area. Whereas the conditions in the hamlets, where the tribals
lived, were not good enough the rehabilitation package ensured more basic
facilities and civic amenities to the re-settled oustees. Their children would
have schools and childrens park, primary health centre would take care of
their health and, of course, they would have electricity which was not a
common feature in the tribal villages.
Dealing with the contention of the petitioners that there was no
provision for grazing land and fuel wood for the PAFs, it is rightly contended
by the State of Gujarat that grazing land was not mandated or provided for
in the Tribunals Award but nevertheless, the grazing land of six villages
was available for use of PAFs. It may be that the grazing land was
inadequate but this problem will be faced by the entire State of Gujarat and
not making such land available for them does not in any way violate any of
the provisions of the Award.
With regard to providing irrigation facilities, most of the re-settlement
of the project affected families were provided irrigation facilities in the
Sardar Sarovar Project command area or in the command areas of other
irrigation projects. In many of the out of command sites, irrigated lands
were purchased. In cases where the irrigation facilities were not
functioning, the Government of Gujarat had undertaken the work of digging
tubewells in order to avoid any difficulty with regard to irrigation in respect of
those oustees who did not have adequate irrigation facilities. It was
contended that because of the delay in the construction of the project, the
cut off date of 1stJanuary, 1987 for extending R&R facilities to major sons
were not provided. The Tribunals Award had provided for land for major
sons as on 16.8.1978. The Government of Gujarat, however, extended this
benefit and offered rehabilitation package by fixing the cut off date of
1.1.1987 for granting benefits to major sons. According to the Tribunals
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Award, the sons who had become major one year prior to the issuance of
the Notification for land acquisition were entitled to be allotted land. The
Land Acquisition Notification had been issued in 1981-82 and as per the
Award, it was only those sons who had become major one year prior to that
date who would have become eligible for allotment of land. But in order to
benefit those major sons who had attained majority later, the Government of
Gujarat made a relaxation so as to cover all those who became major upto
1.1.1987. The Government of Gujarat was under no obligation to do this
and would have been quite within its right merely to comply with the
provisions of the Tribunals Award. This being so, relaxation of cut off date
so as to give extra benefit to those sons who attained age of majority at a
later date, cannot be faulted or criticised.
Dealing with the contention of the petitioners that there is a need for
a review of the project and that an independent agency should monitor the
R&R of the oustees and that no construction should be permitted to be
undertaken without the clearance of such an authority, the respondents are
right in submitting that there is no warrant for such a contention. The
Tribunals Award is final and binding on the States. The machinery of
Narmada Control Authority has been envisaged and constituted under the
Award itself. It is not possible to accept that Narmada Control Authority is
not to be regarded as an independent authority. Of course some of the
members are Government officials but apart from the Union of India, the
other States are also represented in this Authority. The project is being
undertaken by the Government and it is for the Governmental authorities to
execute the same. With the establishment of the R&R Sub-group and
constitution of the Grievances Redressal Authorities by the States of
Gujarat, Maharashtra and Madhya Pradesh, there is a system in force
which will ensure satisfactory re-settlement and rehabilitation of the
oustees. There is no basis for contending that some outside agency or
National Human Rights Commission should see to the compliance of the
Tribunal Award.
MONITORING OF REHABILITATION PROGRAMME
The Ministry of Water Resources, Government of India is the Nodal
Ministry for the Sardar Sarovar Project and other Union Ministries involved
are the Ministries of Environment and Forests and Social Justice and
Empowerment. As a consequence of the Tribunals Award, Narmada
Control Authority was created to co-ordinate and oversee the overall work of
the project and to monitor the R&R activities including environmental
safeguard measures. The Review Committee of the Narmada Control
Authority consists of the Union Minister of Water Resources as its
Chairman, the Union Ministry of Environment and Forests and the Chief
Ministers of Gujarat, Madhya Pradesh, Maharashtra and Rajasthan as
Members. This Review Committee may suo moto or on the application of
any party State or the Secretary, Ministry of Environment and Forests
review any decision of the Narmada Control Authority. In the Narmada
Control Authority, Re-settlement & Rehabilitation (R&R) Sub-group has
been created for closely monitoring the R&R progress. This Sub-group is
headed by the Secretary, Government of India, Ministry of Social Justice &
Empowerment and is represented by Members/Invitees of participating
States, academic institutions having expertise in R&R, independent socio-
anthropological experts and non-Governmental Organisations. The
functions of this Sub-group are as follows:
1. To monitor the progress of land acquisition in respect of
submergence land of Sardar Sarovar Project and Indira (Narmada)
Sagar Project (ISP).
2. To monitor the progress of implementation of the action plan of
rehabilitation of project affected families in the affected villages of
SSP and ISP in concerned states.
3. To review the R&R action plan from time to time in the light of results
of the implementation.
4. To review the reports of the agencies entrusted by each of the State
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in respect of monitoring and evaluation of the progress in the matter
of re-settlement and rehabilitation.
5. To monitor and review implementation of re-settlement and
rehabilitation programmes pari passu with the raising of the dam
height, keeping in view the clearance granted to ISP and SSP from
environmental angle by the Government of India and the Ministry of
Environment and Forests.
6. To coordinate states/agencies involved in the R&R programmes of
SSP and ISP.
7. To undertake any or all activities in the matter of re-settlement and
rehabilitation pertaining to SSP and ISP.
REHABILITATION COMMITTEE
This Court vide order dated 9.8.1991 in B.D.Sharma Vs. Union of
India and others 1992 Suppl.(3) SCC 93 directed the formation of a
Committee under the chairmanship of the Secretary, Ministry of Social
Justice & Empowerment, Government of India to visit the submergence
areas/re-settlement sites and furnish the report of development and
progress made in the matter of rehabilitation. The Rehabilitation Committee
headed by the Secretary, Government of India, Ministry of Social Justice
and Empowerment and having representatives of the three State
Governments as its members had been constituted. It is the case of the
Union of India that this Committee visited regularly the various R&R sites
and submergence villages in the three States and submitted reports to this
Court from time to time. By order dated 24th October, 1994, this Court in the
aforesaid case of B.D.Sharma (supra) observed that all the directions
issued by the Court from time to time have been complied with and nothing
more be done in the petition and the petition was disposed off. Most of the
recommendations/observations as made by this Committee are stated to
have been complied fairly by the States concerned.
In addition to the above, the officials of the Narmada Control
Authority are also stated to be monitoring the progress of R&R regularly by
making field visits. The individual complaints of the PAFs are attended and
brought to the notice of the respective Governments.
GRIEVANCES REDRESSAL MECHANISM
The appeal mechanism has been established in the policy
statements by all the three State Governments for the redressal of
grievances of the PAFs. According to this mechanism, if a displaced
person is aggrieved by the decision of the Rehabilitation Officers in respect
of any R&R process, he may appeal to the concerned agency/officers.
Vide Resolution dated February 17, 1999, the Government of Gujarat
set up a high-level authority called Grievance Redressal Authority (GRA)
before whom the oustees already re-settled and to be re-settled in Gujarat
could ventilate their grievances for redressal after their re-settlement till the
process of re-settlement and re-habilitation is fully completed. The said
Grievances Redressal Authority has Mr. Justice P.D. Desai, retired Chief
Justice as its Chairman. This machinery had been established to:
A) create an Authority before whom oustees who have re-settled
in the State of Gujarat can ventilate their grievances relating to
the R&R measures taken by the State of Gujarat;
B) ensure that the oustees already settled and the oustees
settled hereinafter in the R&R sites created for re-settlement
and rehabilitation of the oustees from the States of Madhya
Pradesh and Maharashtra receive all the benefits and
amenities in accordance with the Award and the various
Government resolutions made from time to time;
C) ensure that Gujarat oustees re-settled in Gujarat have
received all the benefits and amenities due to them.
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The Gujarat Rehabilitation Authority has installed a permanent in-
house Grievances Redressal Cell (GRC) within Sardar Sarovar
Punarvasavat Agency. The Grievances Redressal Cell deals with the
grievances of the PAFs and the grievances redressal is undertaken by it in
the following three ways.
i) Grievances Redressal Cell deals grievances in the regular
course on the basis of applications i.e. by holding enquiries
and implementing decisions taken pursuant thereto.
ii) Grievances redressal on the spot though mechanism of
Tatkal Fariyad Nivaran Samiti.
iii) Grievances redressal under the mechanism of Single Window
Clearance System.
Grievances Redressal Authority has surveyed sites in which PAFs
have been re-settled and has submitted reports to this Court from time to
time which disclose substantial compliance with the terms of the Award
and the rehabilitation package.
In its Fourth Report dated 15.11.1999, the Grievances
Redressal Authority observed pursuant to the grievances redressal
measures taken by GRC, whose approach is positive and grievance
redressal oriented, a considerable number of grievances have been
resolved by extensive land improvement work done on agricultural land at
different sites within a period of six months i.e. April-September, 1999.
The R&R Sub-group in its 20th field visit of the R&R sites in Gujarat
on 12/13.1.2000 has noted as follows:
The Committee after the visit and from interaction with the PAFs,
concluded that there is vast improvement in the conditions of
PAFs at these R&R sites as compared to the grievances reported
for the same sites during previous visits by the Committee/NCA
officers. Assessing the perception of PAFs the Committee
observed that the majority of PAFs are happy and joining
mainstream of countrys development.
The Grievances Redressal Cell has dealt with and decided a total of
over 6500 grievances.
At the instance of Grievances Redressal Authority, an
Agricultural Cell is set up in Sardar Sarovar Punarvasavat Agency with
effect from 1st July, 1999. This was done with an objective of enhancing the
productivity of agricultural land allotted to PAFs by adopting of suitable farm
management practices and in assisting in resolving land related grievances.
Similarly, w.e.f. 1.5.1999, Medical Cells have been set up in Sardar Sarovar
Punarvasavat Agency for ensuring effective functioning of medical
infrastructure and providing organised system of supervising and monitoring
and also for conducting health survey-cum-medical check up activities.
The Grievance Redressal Authority has become an effective monitoring and
implementing agency with regard to relief and rehabilitation of the PAFs in
Gujarat. Apart from resolving independent grievances of PAFs and
enforcing the compliance of the provisions of the Award through its
exhaustive machinery and mechanism, it is also trying to guide in respect of
various other issues not covered by the provisions of the Award such as
i) Vocational training of the oustees;
ii) Review of Narmada oustees employment opportunity rules;
iii) Issue relating to Kevadia Colony;
iv) Issue relating to tapu land;
v) Development of Kevadia as a tourist centre etc.
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In Maharashtra, a local committee was constituted comprising of
Additional Collector (SS), Divisional Forest Officer, Re-settlement Officer
and two representatives of the oustees nominated by the local Panchayat
Samities from among the elected members of the village panchayats in the
project affected villages/taluka. This Committee is required to examine the
claims of the PAFs and give directions within a time frame and an appeal
from its decision lies to the Commissioner. In addition thereto, vide
notification dated 17th April, 2000 the Government of Maharasthra has set
up a Grievances Redressal Authority in lines established by the State of
Gujarat and Mr. Justice S.P. Kurdukar, retired Judge of this Court, has been
appointed as its Chairman. This Authority is expected to be analogous to
the Grievances Redressal Authority of Gujarat.
In Madhya Pradesh, the grievances of the PAFs have first to be made
by a claim which will be verified by the patwari and then scrutinised by the
Tehsildar. PAFs may file an appeal against the decision of R&R official
before the District Collector who is required to dispose off the same within a
period of three months. In the case of Madhya Pradesh also by Notification
dated 30th March, 2000 the Government of Madhya Pradesh has constituted
a Grievances Redressal Authority similar to the one in Gujarat with Mr.
Justice Sohni, retired Chief Justice of Patna High Court as its Chairman.
INDEPENDENT MONITORING & EVALUATION AGENCIES
The Monitoring and Evaluation of the rehabilitation programme is
also being carried out by the independent socio-anthropological agencies
appointed by the State Governments of Maharashtra, Madhya Pradesh and
Gujarat as well as Narmada Control Authority. These agencies, which are
professional and academic institutes, conduct surveys and in-depth studies
relating to PAFs in the submergence and rehabilitation villages. The main
object of the monitoring is oriented towards enabling the management to
assess the progress, identify the difficulties, ascertaining problem areas,
provide early warning and thus call for corrections needed immediately.
The Center for Social Studies, Surat is the monitoring agency for the
Government of Gujarat. This Institute has prepared 24 six monthly progress
reports in relation to the re-settlement of PAFs of submergence villages of
Gujarat. Similarly for the project affected families of Madhya
Pradesh/Maharashtra who have re-settled in Gujarat, the Government of
Gujarat has appointed the Gujarat Institute of Development Research,
Ahmedabad as the independent Monitoring and Evaluation Agency for
monitoring R&R programmes.
In Madhya Pradesh the monitoring and evaluation had been carried
out by Dr. H.S.Gaur University, Sagar and the same has been dis-engaged
now and a new agency is being appointed. The findings of Dr. H.S. Guar
University, Sagar indicated that displaced families in Madhya Pradesh are,
by and large, happy with the new re-settlement in Gujarat and one of the
main reason behind their happiness was that the shifting from hamlets had
changed their socio-economic status.
In Maharashtra the monitoring and evaluation was earlier being done
by the Tata Institute of Social Sciences, Mumbai. This agency had reported
that overall literacy rate among project affected persons above six years of
age is about 97%, while illiteracy in submergence villages was rampant.
Further more the report showed that in the submergence villages, the tribals
mostly relied on traditional healers for their ailments. Now the current
scenario is that at R&R sites, health centres and sub-centres have been
established.
It is thus seen that there is in place an elaborate network of authorities
which have to see to the execution and implementation of the project in
terms of the Award. All aspects of the project are supervised and there is a
Review Committee which can review any decision of the Narmada Control
Authority and each of the three rehabilitating States have set up an
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independent Grievances Redressal Authority to take care that the relief and
rehabilitation measures are properly implemented and the grievances, if
any, of the oustees are redressed.
On 9th May, 2000, this Court directed the State Governments of
Gujarat, Madhya Pradesh and Maharashtra to file affidavits disclosing the
latest status of re-settlement and rehabilitation work for the existing as well
as prospective oustees likely to be affected by raising the height of the dam.
Pursuant to the said direction affidavits on behalf of the three States
have been filed and, in response thereto, the petitioners have also filed an
affidavit.
On behalf of the State of Gujarat the affidavit of Sh. V.K. Babbar,
Commissioner (Rehabilitation) and Chief Executive Officer, Sardar Sarovar
Punavasvat Agency [SSPA] has been filed, according to which at FRL
138.68 m. the status with regard to PAFs to be re-settled is stated to be as
follows:
State
Total number of PAFs
resettled/allotted
agricultural land in
Gujarat
Balance PAFs to be
resettled in Gujarat
Gujarat
4575
25
Maharashtra
710
290
Madhya
Pradesh
3280
10450
Total
8565
10765
It is the case of State of Gujarat that 8565 PAFs have been
accommodated in 182 R&R sites fully equipped with the requisite civic
amenities as provided by the Tribunals award. The agricultural land
allotted to these PAFs is 16973 hectares.
Dealing specifically with the status of PAFs at RL 90 mtr., 95 mtr. and
110 mtr. it is averred in the said affidavit that all the PAFs of Gujarat at RL
90 mtr. have been re-settled and the balance PAFs of Madhya Pradesh and
Maharashtra affected at RL 90 mtr. have already been offered R&R
package in Gujarat. The process of re-settlement is continuing and reliance
is placed on the observation of the GRA which has stated in its Fourth
Report dated 15th November, 1999 that There is substantial compliance of
the Re-settlement and Rehabilitation measures as mandated by the Final
Report of NWDT, including provision of civic amenities, and also of all the
inter-linked provisions of the Government of Gujarat and that, therefore,
PAFs from the States of Madhya Pradesh and Maharashtra affected upto
the height of RL 90 mtr. can be accommodated as per their choice at these
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selected 35 sites in Gujarat.
With respect to the PAFs affected at RL 95 mtr. the affidavit states
that the PAFs of Gujarat have already been settled and while the affected
PAFs of Madhya Pradesh and Maharashtra have been offered R&R
package in Gujarat in January 1999, September 1999 and January 2000.
The RL 95 mtr. Action Plan for these PAFs has also been prepared by the
Government of Gujarat in consultation with the Governments of Madhya
Pradesh and Maharashtra and has been sent to the NCA. The case of the
State of Gujarat, therefore, is that all the PAFs wanting to be re-settled in
Gujarat have been offered the package but consent of all the PAFs has not
so far been received but the Government of Gujarat has sufficient land
readily available which can be allotted to the said PAFs as soon as they
come and select the same.
With regard to the status of PAFs at RL 110 mtr. all the PAFs of
Gujarat have been re-settled and 2761 PAFs [2642 of Madhya Pradesh and
119 of Maharashtra] remain to be re-settled in Gujarat and R&R package
will be offered to them before November 2000. The land which is required
to be allotted to them is stated to be around 6074 hectares and the State of
Gujarat has in its possession 8146 hectares. The civic amenities in 40 new
R&R sites are scheduled to be completed by December 2000 and these
sites would serve to accommodate not only PAFs between RL 95 mtr. and
RL 110 mtr. but would also serve to accommodate PAFs from submergence
villages which would be getting affected at levels above RL 110 mtr. The
Action Plan giving the village-wise details is said to have been sent to NCA
in June 2000 for its approval.
According to the said affidavit the balance number of PAFs remaining
to be re-settled at Gujarat at FRL 138.68 mtr. is 10765. Taking into account
that an additional area of 10% towards house plot and common civic
amenities would be required in addition to the allotment of minimum 2
hectares of agricultural land, the total land requirement per PAF would be
approximately 2.2 hectares. For planning purposes in respect of 10765
PAFs the land requirement would be about 23700 hectares. As against this
requirement the status of land, as per the said affidavit, under different
categories with the Government of Gujarat is stated to be as under:
Sr. No.
PARTICULARS
Land
[In ha]
1.
Land identified (offers received in
respect of private land and
Government land)
15716 ha.
2.
Land available (private land for which
price is approved by Expert Committee
and offer/counter offer conveyed and
acceptance of land holder obtained.
480 ha.
3.
Land in possession of SSPA/GOG in
12 districts
8416 ha.
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Total
24612 ha.
It is averred that between March and 21st June 2000 the land in
possession as well as the land identified has increased considerably.
It has also been explained in the said affidavit that the Government of
Gujarat has a well-established practice of procuring land for R&R at realistic
market prices for willing sellers. Officers hold discussions with prospective
sellers, verify the suitability of land and after the prices is settled the same is
procured through legal process of Land Acquisition Act and consent awards
are passed so that the PAPs are assured of undisputed legal title free from
all encumbrances. This process of negotiated purchase has been
streamlined. At the instance of the GRA, a retired judge of the High Court is
now appointed as Chairman of the Expert Committee with retired senior
Government Secretaries as its members. This Expert Committee oversees
the exercise of purchase of suitable land at the market price. At the
instance of the GRA, PAPs are being issued Sanads for the land allotted to
them which will ensure provision of a proper legal document in their favour.
Dealing with the term of the Award to the effect that Gujarat shall
acquire and make available a year in advance of the submergence before
each successive stage, land and house sites for rehabilitation of the
oustees families from Madhya Pradesh and Maharashtra who are willing to
migrate to Gujarat, the affidavit states that the Gujarat Government has
already identified sufficient land for accommodating the balance PAFs
remaining to be re-settled in Gujarat at FRL 138.68 mtr. In respect of PAFs
upto RL 110 mtr. Gujarat has sufficient land available to meet the R&R
requirements but for the PAFs above RL 110 mtr. suitable land has already
been identified and the same would be acquired and made available one
year in advance of the submergence before each successive stage. The
affidavit gives reason as to why it is not advisable for the State, at this
stage, to acquire the total requirement of land for FRL in one go. What is
stated in the affidavit is as follows:
i. Since at present GOG has sufficient land to meet R&R
requirement to accommodate PAFs upto RL 110 m, it
would not be necessary to acquire further land
immediately, especially when the additional land would
be required only after the R&R Sub-group and
Environment Sub-group give approval for RL 95 m. to
RL 110 m. after examining the preparedness at
different stages. This would ensure that public money
is not unnecessarily blocked for a long period.
ii. By acquiring land much before it would be required,
problems of illegal trespass are likely to arise.
iii. The excess land would, by and large, remain fallow and
no agricultural production would take place.
iv. If the land remains fallow for long the overall
productivity of the land would be adversely affected.
v. All the time of allotment, the State Government would
again have to spend a sizeable amount to remove
weeds, bushes, small trees etc.
vi. The State Government would have to incur a sizeable
amount to prevent tampering with the boundary marks,
prevent neighbouring farmers removing the top soil or
from diverting natural drains passing through their fields
towards the land purchased for R&R etc.
The affidavit also gives facts and figures showing that all requisite
civic amenities have been developed and made available at the R&R sites.
Some of the salient features which are highlighted in this behalf are as
under:
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? A three-room primary school is provided in all MP/MH
sites irrespective of the number of families resettled.
? A dispensary with examination room, medical equipment,
medicines is provided in all MP/MH sites irrespective of the
number of resettled families.
? 3439 PAFs (86%) out of the total MP/MH PAFs resettled
in Gujarat have availed of the Rs.45,000 financial
assistance and built pucca core houses.
? Overhead tanks for drinking water are provided in large
R&R sites.
? At the instance of GRA, toilets are being provided in the
houses of PAFs with the help of NGOs.
The total cost incurred so far by the Government of Gujarat in
providing the land and civic amenities upto May 2000 is stated to be 194
crores. The Grievances Redressal Cell is stated to have redressed large
number of grievances of the PAFs whether they were related to land, grant
of civic amenities or others. The salient features of working of the
Grievance Redressal Cell is stated to be as follows:
? At present 2 senior IAS officers with supporting staff are
working exclusively for redressal of grievances.
? A reasoned reply is given to the applicants. The applicant
is also informed that if he is aggrieved with the decision he
may prefer an appeal to GRA within thirty days.
? The Single Window Clearance Systems main objective is
to proactively resolve grievances and to avoid delays in
inter-departmental co-ordination.
? Tatkal Fariyad Nivaran Samitis are held in the R&R sites to
resolve grievance of the PAFs in an open forum.
? The PAFs are being involved at every stage of grievance
redressal. The works have been carried out in most cases
by the PAFs.
? The Agriculture Officers of the Agricultural Cell are actively
helping, guiding the PAFs in their agricultural operations
and upgrading their skills.
With a view to effectively rehabilitate and assimilate the PAPs
Vasahat Samitis have been constituted in 165 R&R sites, consisting of 5
PAPs, one of whom is a female. This ensures the participation of the PAPs
in the process of development and these Samitis are vested with the
responsibility to sort out minor problems. With a view to ensure more
effective participation in Panchayat affairs and better integration of PAPs an
Order under Section 98 of the Gujarat Panchayats Act, 1993 has been
issued by the Government of Gujarat providing that there shall be upto two
invitees from amongst the PAPs depending upon the number of PAPs at the
sites in the village Panchayat within whose jurisdiction the R&R are
situated. Pursuant to this 196 PAPs have been inducted as invitees to then
Village Panchayats. The salient features of the rehabilitation programme of
the PAPs are as follows:
? PAFs are given productive assets in kind (7000/PAFs) to
purchase bullocks, bullock carts, oil engines etc.
? PAFs are given subsistence allowance (Rs.4500/PAF) in
cash to meet contingency needs in the initial period.
? Vocational training is provided to PAFs for improving their
income levels, priority being given to those dependents
who are not entitled to be declared as PAFs on their own
rights. Tool kits are supplied either free or with 50%
subsidy.
? NGOs are actively involved in all the rehabilitation
activities such as conducting training classes.
? PAFs are being covered by the ongoing developmental
schemes of the Government (DRDA, Tribal Sub Plan etc.)
? An Extension (Agriculture) officers has been appointed for
approximately every 150 families to guide them in
agriculture operation and assist them in day to day
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problems (getting ration cards, khedut khatavahis etc.)
? In recent years focus is on empowering the PAFs and
making them self dependent.
Medical cell has been set up for providing services and treatment to
PAPs free of cost. The cell is headed by Deputy Director (Medical) and is
having a nucleus of medical experts consisting of a physician, a
pediatrician, a gynecologist, 21 MBBS doctors, pharmacists etc. The salient
features of the medical help programme for the benefit of PAPs is stated to
be as follows:
? The Medical Officers and paramedic staff are making
house-to-house visits to motivate the PAPs to come
forward to avail of the medical services.
? In all dispensaries, a full time multipurpose health worker
(female) is available.
? Multi-specialization diagnostic/treatment camps are
organised fortnightly, where advance investigations are
diagnostic facilities like ECG, X-ray ultrasound are
available.
? Patients requiring further services are brought to
Government hospitals or any other specialty hospital and
necessary treatment given free of cost.
? GOG has placed an order for a mobile medical hospital
equipped with diagnostic and treatment equipments.
? A comprehensive health survey and medical check up
covering 29423 PAPs has been completed. A special
record system of family health folder and health profile of
each PAP is prepared.
? Nutrition supplements are given to children (upto 6 years),
expectant and lactating mothers through the Integrated
Child Development Scheme (ICDS).
? Special food supplement in the form of Hyderabad Mix is
given to malnourished children and vulnerable target
groups.
? School going children are covered under the Mid-Day Meal
Scheme.
? Under TB Control, all chest symptomatic persons are
screened by special examinations like sputum microscopy,
X-ray, blood tests and persons found positive for TB are
given domiciliary treatment under direct observation of
doctors or paramedics. In 77 cases, treatment is
completed and patients are cured.
? Under preventive health care, health education material is
distributed and Health and Cleanliness Shibirs are
organized.
? A special survey covering physically handicapped and
mentally retarded persons has been organized and social
welfare benefits given.
? Other National Health Programmes (maternal child health,
immunization, school health check up, family welfare etc.)
are regularly conducted.
An Agricultural Cell has been set up in the SSPA which assists the
Grievances Redressal Machinery in resolving the problem relating to the
agricultural land. The salient features of this cell are as follows:
? The Agriculture Cell is involved in purchasing land,
supervision of land improvement works and processing
land related grievances of the PAFs.
? Agriculture training classes are organized for PAFs in the
training institutes of the State Government.
? Assistance is given for availing crop-loan credit from banks
and extension education is imparted in matters of
marketing, cropping pattern, use of improved seeds,
insecticides and latest equipments.
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? Afforestation was carried out in 33 R&R sites during 1999-
2000 by planting 3500 saplings which are protected by
bamboo tree-guards. Plantation is done along the
roadside, common plots, school premises etc. In the
remaining sites plantation work is undertaken by NGOs.
At the instance of GRA an educational cell has been set up in the
SSPA. The main function of which is to improve the quality of education
imparted and to improve the school enrolment. The salient features of this
cell are as under:
? School enrolment which was 4110 in 1998-99, increased to
4670 in 1999-2000. Out of the 4670 students enrolled,
2126 were girls (46.3%).
? The number of schools is 170 and the number of teachers
in 384. In the last academic year, 66 schools were
upgraded by increasing the number of classes.
? SSPA is regularly sending the teachers for in-service
training. So far 120 teachers have been imparted training.
? Every year during the period of June to August, a special
drive is taken to increase the school enrolment.
? In the current year 150 adult education classes have been
started in the R&R sites with the help of NGOs.
? An advisory committee has been created to make
recommendations on how to improve the education being
imparted. Members include faculty of MS University,
officers of Education Department, Principal of Teacher
Training Centre.
It is further averred in this affidavit that at the instance of GRA a large
number of measures have been taken to improve the organisational
structure of SSPA so as to effectively meet the challenge of R&R and make
the R&R staff accountable. The salient features of this are stated to be as
follows:
? A strategic policy decision has been taken to create three
separate divisions in SSPA for Rehabilitation, Re-
settlement and Planning. Each division is in charge of a
senior level officer of the rank of Additional/Joint
Commissioner.
? Staff strength in SSPA has been considerably augmented
especially at the field level.
? To review the structural and functional aspects of SSPA
services of a management consultancy agency (M/s TCS)
has been engaged and draft report has been received and
is being examined.
? A demographic survey is to be conducted to
comprehensively document information regarding the
PAPs with special reference to their family composition,
marriage, births, deaths, life expectancy, literacy, customs,
culture, social integration etc.
? Staff is being trained to sensitize them especially with
regard to rehabilitation and second-generation issues.
Senior level officers have been sent for R&R training at
Administrative Staff College of India, Hyderabad.
From the aforesaid affidavit it is more than clear that the GRA, of
which Mr. Justice P.D. Desai, is the Chairman, has seen to the
establishment of different cells and have taken innovative steps with a view
to making R&R effective and meaningful. The steps which are being taken
and the assistance given is much more than what is required under the
Tribunals Award. There now seems to be a commitment on the part of the
Government of Gujarat to see that there is no laxity in the R&R of the PAPs.
It appears that the State of Gujarat has realised that without effective R&R
facilities no further construction of the dam would be permitted by the NCA
and under the guidance and directions of the GRA meaningful steps are
being undertaken in this behalf. In this connection we may take note of the
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fact that along with the said affidavit Sh. V.K. Babbar, again under the
directions of the GRA, has given an undertaking to this Court, which reads
as follows:-
1. As per this undertaking, inter alia, in respect of
scattered pieces or parcels of lands in possession of
the SSPA for R&R which do not add upto a contiguous
block of 7 hectares by themselves or in conjunction with
other lands steps will be taken to purchase or acquire
contiguous lands so that the said small pieces of land
become a part of continuous block of 6 hectares or
more. This exercise will be undertaken and completed
on or before 31st December, 2000. In case it is not
possible to have a contiguous block of minimum of 6
hectares further directions will be sought from GRA or
such piece or parcel of land will be put to use for other
public purposes relating to R&R but which may not
have been provided for in the NWDT award.
2. Henceforth, the land which is acquired or purchased for
R&R purposes shall be contiguous to each other so as
to constitute a compact block of 6 hectares.
3. Henceforth land to be purchased for R&R will be within
a radius of 3 kms. from an existing or proposed new
site and if there is a departure from this policy prior
approval of the GRA will be obtained.
4. Demarcation of boundary of 5211 hectares of land
whose survey has been undertaken by the GRA and
carving out individual plots of 2 hectares for allotment to
PAFs will be undertaken and completed on or before
31st December, 2000.
5. The other undertakings relate to soil testing and/or
ensuring that suitable land is made available to the
PAFs after the quality of land is cleared by the
agriculture experts of the Gujarat Agriculture University.
With regard to the lands in possession of the SSPA
which are low lying and vulnerable to water logging
during monsoon, an undertaking has been given that
the land has been deleted from the inventory of lands
available for R&R unless such lands are examined by
the Agricultural Cell of SSPA and it is certified that the
access to these lands is clear and unimpeded and that
they are suitable for R&R. Compliance report in this
regard is to be submitted to the GRA on or before 31st
December, 2000.
In addition to the aforesaid undertaking of Sh. V.K. Babbar,
undertakings of the Collectors of Khedr, Vadodara, Ahmedabad, Narmada,
Panchmahal and Bharuch Districts have also been filed. Apart from
reiterating what is contained in the undertaking of Sh. V.K. Babbar, in these
undertakings of the Collectors, it is stated that necessary mutation entries
regarding entering the name of SSPA/SSNNL in the village records of right
in respect of the land in possession for R&R or PAFs likely to be re-settled
in Gujarat have been made but the certification of these entries will be
completed and the matter reported to the GRA before 31st August, 2000. If
this is not done the land is to be deleted from the inventory of land available
for R&R. Necessary mutation entries in the village records or rights
regarding removal of encumbrances of original landholders shall also be
completed by that date.
From what is noticed hereinabove, this Court is satisfied that more
than adequate steps are being taken by the State of Gujarat not only to
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implement the Award of the Tribunal to the extent it grants relief to the
oustees but the effort is to substantially improve thereon and, therefore,
continued monitoring by this Court may not be necessary.
On behalf of the State of Madhya Pradesh, in response to this
Courts order dated 9th May, 2000, an affidavit of Sh. H.N. Tiwari, Director
(TW), Narmada Valley Development Authority has been filed. It is stated
therein that with a view to arrange re-settlement of the PAFs to be affected
at different levels detailed instructions to the Field Officers of the
submergence area were issued by Sh. Tiwari vide letter dated 20th May,
2000 in respect of all the aspects of resettlement of the PAFs. This is
related to identification of land, processing of land acquisition cases and
passing of the Award, taking of PAFs to Gujarat for selection of land,
allotment of land to the PAFs who decide to remain in Madhya Pradesh and
development of sites. There are 92 sites for re-settlement of the PAFs
which are required to be established and out of these 18 are stated to be
fully developed, development in 23 sites is in progress, 18 sites are such
where location has been determined and land identified but development
work has not started and 33 sites are such where location of land for the
development is to be decided by the task force constituted for this purpose.
Dealing specifically with the states of PAFs to be affected at different
levels this affidavit, inter alia, states that with regard to PAFs to be affected
at EL 85 mtr. those of whom who have opted to go to Gujarat land has been
offered to them by the Government of Gujarat, those PAFs who have
changed their mind and now want to remain in Madhya Pradesh land is
being shown to them in Madhya Pradesh.
It has not been categorically stated whether the PAFs who are so
affected have been properly resettled or not. On the contrary, it is stated
that no Awards in land acquisition cases have been passed in respect of six
villages and it is only after the Awards are passed that house plots will be
allotted and compensation paid. The provision for financial assistance for
purchase of productive assets will be released when the PAFs shift and
start construction of the houses. The reason for not making the payment in
advance rightly is that if the grants are paid to the oustees before they shift
they may possibly squander the grant and the State Government may be
required to pay again to establish them on some self employment venture.
For the re-settlement of PAFs in Madhya Pradesh out of ten relocation sites
mentioned in the affidavit only five have been fully developed. It is also
stated that 163 PAFs are resisting from shifting to Gujarat under the
influence of anti dam activists, though they have been given notices
containing offer of the land and house plots by the Government of Gujarat.
In addition thereto 323 PAFs who were earlier resisting have now been
persuaded and arrangements for selection of land for them in Gujarat has
been initiated.
With regard to the R&R status of PAFs to be affected at EL 95 mtr. it
is, inter alia, stated that those losing 25 per cent of their holdings are
entitled to be allotted cultivable land and notices were given to them to
identify the land which can be allotted. In the said notice it was stated that
the development process will be undertaken with regard to the said land
only after it is selected by the PAFs. There is also a mention in the affidavit
filed in the name of Narmada Bachao Andolan, the petitioner herein, not
allowing the State Government to conduct survey for demarcation of the
submergence area and identification of the PAFs to be affected at EL
132.86 mtrs. [436 ft.]. Six out of twenty five relocation sites required to be
developed have been fully developed.
Affidavit on behalf of the State of Madhya Pradesh draws a picture of
rehabilitation which is quite different from that of Gujarat. There seems to
be no hurry in taking steps to effectively rehabilitate the Madhya Pradesh
PAFs in their home State. It is indeed surprising that even awards in
respect of six villages out of 33 villages likely to be affected at 90 mtr. dam
height have not been passed. The impression which one gets after reading
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the affidavit on behalf of the State of Madhya Pradesh clearly is that the
main effort of the said State is to try and convince the PAFs that they should
go to Gujarat whose rehabilitation package and effort is far superior to that
of the State of Madhya Pradesh. It is, therefore, not surprising that vast
majority of the PAFs of Madhya Pradesh have opted to be re-settled in
Gujarat but that does not by itself absolve the State of Madhya Pradesh of
its responsibility to take prompt steps so as to comply at least with the
provisions of the Tribunals Award relating to relief and rehabilitation. The
State of Madhya Pradesh has been contending that the height of the dam
should be lowered to 436 ft. so that lesser number of people are dislocated
but we find that even with regard to the rehabilitation of the oustees at 436
ft. the R&R programme of the State is no where implemented. The State is
under an obligation to effectively resettle those oustees whose choice is not
to go to Gujarat. Appropriate directions may, therefore, have to be given to
ensure that the speed in implementing the R&R picks up. Even the interim
report of Mr. Justice Soni, the GRA for the State of Madhya Pradesh,
indicates lack of commitment on the States part in looking to the welfare of
its own people who are going to be under the threat of ouster and who have
to be rehabilitated. Perhaps the lack of urgency could be because of lack
of resources, but then the rehabilitation even in the Madhya Pradesh is to
be at the expense of Gujarat. A more likely reason could be that, apart from
electricity, the main benefit of the construction of the dam is to be of Gujarat
and to a lesser extent to Maharashtra and Rajasthan. In a federal set up
like India whenever any such Inter-State project is approved and work
undertaken the States involved have a responsibility to co-operate with
each other. There is a method of settling the differences which may arise
amongst there like, for example, in the case of Inter-State water dispute the
reference of the same to a Tribunal. The Award of the Tribunal being
binding the States concerned are duty bound to comply with the terms
thereof.
On behalf of the State of Maharashtra affidavit in response to this
Courts order dated 9th May, 2000, the position regarding the availability of
land for distribution to the PAFs was stated to be as follows:
i] Total land made available by the
Forest Department 4191.86 Hectares
ii] Land which could not be
allotted at present to PAF
[a] Gaothan land [used residential purposes} 209.60 hectares
[b] land occupied by river/
nallah/hills 795.62 hectares
[c] Land under encroachment
by third parties 434.13 hectares
Therefore, the net land available
At present for allotment was
4191.86 (-) 1439.35 2752.51 hectares
Total area of land allotted
To 1600 PAFs 2434.01 hectares
Remaining cultivable land
Available with the State
2752 2434.01 318.50 hectares
It is further stated in this affidavit that out of 795.62 hectares of forest land
which was reported to be uncultivable the State has undertaken a survey for
ascertaining whether any of these lands can be made available for
cultivation and distribution by resorting to measures like bunding, terracing
and levelling. It is estimated that 30 to 40 hectares of land would become
available. In addition thereto the affidavit states that the Government of
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Maharashtra has decided to purchase private land in nearby villages for re-
settlement of PAFs and further that GRA has been established and Justice
S.P. Kurdukar, a retired judge of this Court has been appointed as its
Chairman. It is categorically stated in this affidavit that the State
Government would be in a position to make these land available to all the
concerned project affected families.
CONCLUSION
Water is one element without which life cannot sustain. Therefore, it
is to be regarded as one of the primary duties of the Government to ensure
availability of water to the people.
There are only three sources of water. They are rainfall, ground
water or from river. A river itself gets water either by the melting of the
snow or from the rainfall while the ground water is again dependent on the
rainfall or from the river. In most parts of India, rainfall takes place during a
period of about 3 to 4 months known as the Monsoon Season. Even at the
time when the monsoon is regarded as normal, the amount of rainfall varies
from region to region. For example, North-Eastern States of India receive
much more rainfall than some of other States like Punjab, Haryana or
Rajasthan. Dams are constructed not only to provide water whenever
required but they also help in flood control by storing extra water. Excess of
rainfall causes floods while deficiency thereof results in drought. Studies
show that 75% of the monsoon water drains into the sea after flooding a
large land area due to absence of the storage capacity. According to a
study conducted by the Central Water Commission in 1998, surface water
resources were estimated at 1869 cu km and rechargeable groundwater
resources at 432 cu km. It is believed that only 690 cu km of surface water
resources (out of 1869 cu km) can be utilised by storage. At present the
storage capacity of all dams in India is 174 cu km. which is incidentally less
than the capacity of Kariba Dam in Zambia/Zimbabwe (180.6 cu km) and
only 12 cu km more than Aswan High Dam of Egypt.
While the reservoir of a dam stores water and is usually situated at
a place where it can receive a lot of rainfall, the canals take water from this
reservoir to distant places where water is a scare commodity. It was, of
course, contended on behalf of the petitioner that if the practice of water
harvesting is resorted to and some check dams are constructed, there
would really be no need for a high dam like Sardar Sarovar. The answer to
this given by the respondent is that water harvesting serves a useful
purpose but it cannot ensure adequate supply to meet all the requirements
of the people. Water harvesting means to collect, preserve and use the rain
water. The problem of the area in question is that there is deficient rainfall
and small scale water harvesting projects may not be adequate. During
the non rainy days, one of the essential ingredients of water harvesting is
the storing of water. It will not be wrong to say that the biggest dams to the
smallest percolating tanks meant to tap the rain water are nothing but water
harvesting structures to function by receiving water from the common
rainfall.
Dam serves a number of purposes. It stores water, generates
electricity and releases water throughout the year and at times of scarcity.
Its storage capacity is meant to control floods and the canal system which
emanates therefrom is meant to convey and provide water for drinking,
agriculture and industry. In addition thereto, it can also be a source of
generating hydro-power. Dam has, therefore, necessarily to be regarded
as an infrastructural project.
There are three stages with regard to the undertaking of an
infrastructural project. One is conception or planning, second is decision to
undertake the project and the third is the execution of the project. The
conception and the decision to undertake a project is to be regarded as a
policy decision. While there is always a need for such projects not being
unduly delayed, it is at the same time expected that as thorough a study as
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is possible will be undertaken before a decision is taken to start a project.
Once such a considered decision is taken, the proper execution of the same
should be taken expeditiously. It is for the Government to decide how to do
its job. When it has put a system in place for the execution of a project and
such a system cannot be said to be arbitrary, then the only role which a
Court may have to play is to see that the system works in the manner it was
envisaged.
A project may be executed departmentally or by an outside agency.
The choice has to be of the Government. When it undertakes the execution
itself, with or without the help of another organisation, it will be expected to
undertake the exercise according to some procedure or principles. The
NCA was constituted to give effect to the Award, various sub-groups have
been established under the NCA and to look after the grievances of the
resettled oustees and each State has set up a Grievance Redressal
Machinery. Over and above the NCA is the Review Committee. There is
no reason now to assume that these authorities will not function properly. In
our opinion the Court should have no role to play.
It is now well-settled that the courts, in the exercise of their
jurisdiction, will not transgress into the field of policy decision. Whether to
have an infrastructural project or not and what is the type of project to be
undertaken and how it has to be executed, are part of policy making
process and the Courts are ill equipped to adjudicate on a policy decision
so undertaken. The Court, no doubt, has a duty to see that in the
undertaking of a decision, no law is violated and peoples fundamental
rights are not transgressed upon except to the extent permissible under the
Constitution. Even then any challenge to such a policy decision must be
before the execution of the project is undertaken. Any delay in the
execution of the project means over run in costs and the decision to
undertake a project, if challenged after its execution has commenced,
should be thrown out at the very threshold on the ground of latches if the
petitioner had the knowledge of such a decision and could have approached
the Court at that time. Just because a petition is termed as a PIL does not
mean that ordinary principles applicable to litigation will not apply. Latches
is one of them.
Public Interest Litigation [PIL] was an innovation essentially to
safeguard and protect the human rights of those people who were unable to
protect themselves. With the passage of time the PIL jurisdiction has been
ballooning so as to encompass within its ambit subjects such as probity in
public life, granting of largess in the form of licences, protecting environment
and the like. But the balloon should not be inflated so much that it bursts.
Public Interest Litigation should not be allowed to degenerate to becoming
Publicity Interest Litigation or Private Inquisitiveness Litigation.
While exercising jurisdiction in PIL cases Court has not forsaken its
duty and role as a Court of law dispensing justice in accordance with law. It
is only where there has been a failure on the part of any authority in acting
according to law or in non-action or acting in violation of the law that the
Court has stepped in. No directions are issued which are in conflict with
any legal provisions. Directions have, in appropriate cases, been given
where the law is silent and inaction would result in violation of the
Fundamental Rights or other Legal provisions.
While protecting the rights of the people from being violated in any
manner utmost care has to be taken that the Court does not transgress its
jurisdiction. There is in our Constitutional frame-work a fairly clear
demarcation of powers. The Court has come down heavily whenever the
executive has sought to impinge upon the Courts jurisdiction.
At the same time, in exercise of its enormous power the Court should
not be called upon or undertake governmental duties or functions. The
Courts cannot run the Government nor the administration indulge in abuse
or non-use of power and get away with it. The essence of judicial review is
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a constitutional fundamental. The role of the higher judiciary under the
constitution casts on it a great obligation as the sentinel to defend the
values of the constitution and rights of Indians. The courts must, therefore,
act within their judicially permissible limitations to uphold the rule of law and
harness their power in public interest. It is precisely for this reason that it
has been consistently held by this Court that in matters of policy the Court
will not interfere. When there is a valid law requiring the Government to act
in a particular manner the Court ought not to, without striking down the law,
give any direction which is not in accordance with law. In other words the
Court itself is not above the law.
In respect of public projects and policies which are initiated by the
Government the Courts should not become an approval authority. Normally
such decisions are taken by the Government after due care and
consideration. In a democracy welfare of the people at large, and not
merely of a small section of the society, has to be the concern of a
responsible Government. If a considered policy decision has been taken,
which is not in conflict with any law or is not mala fide, it will not be in Public
Interest to require the Court to go into and investigate those areas which are
the function of the executive. For any project which is approved after due
deliberation the Court should refrain from being asked to review the
decision just because a petitioner in filing a PIL alleges that such a decision
should not have been taken because an opposite view against the
undertaking of the project, which view may have been considered by the
Government, is possible. When two or more options or views are possible
and after considering them the Government takes a policy decision it is then
not the function of the Court to go into the matter afresh and, in a way, sit in
appeal over such a policy decision.
What the petitioner wants the Court to do in this case is precisely
that. The facts enumerated hereinabove clearly indicate that the Central
Government had taken a decision to construct the Dam as that was the only
solution available to it for providing water to water scare areas. It was
known at that time that people will be displaced and will have to be
rehabilitated. There is no material to enable this Court to come to the
conclusion that the decision was mala fide. A hard decision need not
necessarily be a bad decision.
Furthermore environment concern has not only to be of the area
which is going to be submerged and its surrounding area. The impact on
environment should be seen in relation to the project as a whole. While an
area of land will submerge but the construction of the Dam will result in
multifold improvement in the environment of the areas where the canal
waters will reach. Apart from bringing drinking water within easy reach the
supply of water to Rajasthan will also help in checking the advancement of
the Thar Desert. Human habitation will increase there which, in turn, will
help in protecting the so far porous border with Pakistan.
While considering Gujarats demand for water, the Government had
reports that with the construction of a high dam on the river Narmada, water
could not only be taken to the scarcity areas of Northern Gujarat,
Saurashtra and parts of Kutch but some water could also be supplied to
Rajasthan.
Conflicting rights had to be considered. If for one set of people
namely those of Gujarat, there was only one solution, namely, construction
of a dam, the same would have an adverse effect on another set of people
whose houses and agricultural land would be submerged in water. It is
because of this conflicting interest that considerable time was taken before
the project was finally cleared in 1987. Perhaps the need for giving the
green signal was that while for the people of Gujarat, there was no other
solution but to provide them with water from Narmada, the hardships of
oustees from Madhya Pradesh could be mitigated by providing them with
alternative lands, sites and compensation. In governance of the State, such
decisions have to be taken where there are conflicting interests. When a
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decision is taken by the Government after due consideration and full
application of mind, the Court is not to sit in appeal over such decision.
` Since long the people of India have been deriving the benefits of the
river valley projects. At the time of independence, food-grain was being
imported into India but with the passage of time and the construction of
more dams, the position has been reversed. The large-scale river valley
projects per se all over the country have made India more than self-
sufficient in food. Famines which used to occur have now become a thing
of the past. Considering the benefits which have been reaped by the
people all over India with the construction of the dams, the Government
cannot be faulted with deciding to construct the high dam on the river
Narmada with a view to provide water not only to the scarcity areas of
Gujarat but also to the small areas of the State of Rajasthan where the
shortage of water has been there since the time immemorial.
In the case of projects of national importance where Union of India
and/or more than one State(s) are involved and the project would benefit a
large section of the society and there is evidence to show that the said
project had been contemplated and considered over a period of time at the
highest level of the States and the Union of India and more so when the
project is evaluated and approval granted by the Planning Commission,
then there should be no occasion for any Court carrying out any review of
the same or directing its review by any outside or independent agency or
body. In a democratic set up, it is for the elected Government to decide
what project should be undertaken for the benefit of the people. Once such
a decision had been taken that unless and until it can be proved or shown
that there is a blatant illegality in the undertaking of the project or in its
execution, the Court ought not to interfere with the execution of the
project.
Displacement of people living on the proposed project sites and the
areas to be submerged is an important issue. Most of the hydrology
projects are located in remote and in-accessible areas, where local
population is, like in the present case, either illiterate or having marginal
means of employment and the per capita income of the families is low. It is
a fact that people are displaced by projects from their ancestral homes.
Displacement of these people would undoubtedly disconnect them from
their past, culture, custom and traditions, but then it becomes necessary to
harvest a river for larger good. A natural river is not only meant for the
people close by but it should be for the benefit of those who can make use
of it, being away from it or near by. Realising the fact that displacement of
these people would disconnect them from their past, culture, custom and
traditions, the moment any village is earmarked for take over for dam or
any other developmental activity, the project implementing authorities have
to implement R&R programmes. The R&R plans are required to be
specially drafted and implemented to mitigate problems whatsoever relating
to all, whether rich or poor, land owner or encroacher, farmer or tenant,
employee or employer, tribal or non-tribal. A properly drafted R&R plan
would improve living standards of displaced persons after displacement.
For example residents of villages around Bhakra Nangal Dam, Nagarjun
Sagar Dam, Tehri, Bhillai Steel Plant, Bokaro and Bala Iron and Steel Plant
and numerous other developmental sites are better off than people living in
villages in whose vicinity no development project came in. It is not fair that
tribals and the people in un-developed villages should continue in the same
condition without ever enjoying the fruits of science and technology for
better health and have a higher quality of life style. Should they not be
encouraged to seek greener pastures elsewhere, if they can have access to
it, either through their own efforts due to information exchange or due to
outside compulsions. It is with this object in view that the R&R plans which
are developed are meant to ensure that those who move must be better off
in the new locations at Government cost. In the present case, the R&R
packages of the States, specially of Gujarat, are such that the living
conditions of the oustees will be much better than what they had in their
tribal hamlets.
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Loss of forest because of any activity is undoubtedly harmful.
Without going into the question as to whether the loss of forest due to river
valley project because of submergence is negligible, compared to de-
forestation due to other reasons like cutting of trees for fuel, it is true that
large dams cause submergence leading to loss of forest areas. But it
cannot be ignored and it is important to note that these large dams also
cause conversion of waste land into agricultural land and making the area
greener. Large dams can also become instruments in improving the
environment, as has been the case in the Western Rajasthan, which
transformed into a green area because of Indira Gandhi Canal, which draws
water from Bhakhra Nangal Dam. This project not only allows the farmers
to grow crops in deserts but also checks the spread of Thar desert in
adjoining areas of Punjab and Haryana.
Environmental and ecological consideration must, of course, be
given due consideration but with proper channellisation of developmental
activities ecology and environment can be enhanced. For example, Periyar
Dam Reservoir has become an elephant sanctuary with thick green forests
all round while at the same time wiped out famines that used to haunt the
district of Madurai in Tamil Nadu before its construction. Similarly
Krishnarajasagar Dam which has turned the Mandya district which was
once covered with shrub forests with wild beasts into a prosperous one with
green paddy and sugarcane fields all round.
So far a number of such river valley projects have been undertaken
in all parts of India. The petitioner has not been able to point out a single
instance where the construction of a Dam has, on the whole, had an
adverse environmental impact. On the contrary the environment has
improved. That being so there is no reason to suspect, with all the
experience gained so far, that the position here will be any different and
there will not be overall improvement and prosperity. It should not be
forgotten that poverty is regarded as one of the causes of degradation of
environment. With improved irrigation system the people will prosper. The
construction of Bhakra Dam is a shining example for all to see how the
backward area of erstwhile undivided Punjab has now become the granary
of India with improved environment than what was there before the
completion of the Bhakra Nangal project.
The Award of the Tribunal is binding on the States concerned. The
said Award also envisages the relief and rehabilitation measures which are
to be undertaken. If for any reason, any of the State Governments involved
lag behind in providing adequate relief and rehabilitation then the proper
course, for a Court to take, would be to direct the Awards implementation
and not to stop the execution of the project. This Court, as a Federal Court
of the country specially in a case of inter-State river dispute where an Award
had been made, has to ensure that the binding Award is implemented. In
this regard, the Court would have the jurisdiction to issue necessary
directions to the State which, though bound, chooses not to carry out its
obligations under the Award. Just as an ordinary litigant is bound by the
decree, similarly a State is bound by the Award. Just as the execution of a
decree can be ordered, similarly, the implementation of the Award can be
directed. If there is a short fall in carrying out the R&R measures, a time
bound direction can and should be given in order to ensure the
implementation of the Award. Putting the project on hold is no solution. It
only encourages recalcitrant State to flout and not implement the award with
impunity. This certainly cannot be permitted. Nor is it desirable in the
national interest that where fundamental right to life of the people who
continue to suffer due to shortage of water to such an extent that even the
drinking water becomes scarce, non-cooperation of a State results in the
stagnation of the project.
The clamour for the early completion of the project and for the water
to flow in the canal is not by Gujarat but is also raised by Rajasthan.
As per Clause 3 of the final decision of the Tribunal published in the
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Gazette notification of India dated 12th December, 1979, the State of
Rajasthan has been allocated 0.5 MAF of Narmada water in national
interest from Sardar Sarovar Dam. This was allocated to the State of
Rajasthan to utilise the same for irrigation and drinking purposes in the arid
and drought-prone areas of Jalore and Barmer districts of Rajasthan
situated on the international border with Pakistan, which have no other
available source of water.
Water is the basic need for the survival of human beings and is part
of right of life and human rights as enshrined in Article 21 of the Constitution
of India and can be served only by providing source of water where there is
none. The Resolution of the U.N.O. in 1977 to which India is a signatory,
during the United Nations Water Conference resolved unanimously inter alia
as under:
All people, whatever their stage of development and their social and
economic conditions, have the right to have access to drinking water in
quantum and of a quality equal to their basic needs.
Water is being made available by the State of Rajasthan through
tankers to the civilians of these areas once in four days during summer
season in quantity, which is just sufficient for their survival. The districts of
Barmer and Jalore are part of Thar Desert and on account of scarcity of
water the desert area is increasing every year. It is a matter of great
concern that even after half a century of freedom, water is not available to
all citizens even for their basic drinking necessity violating the human right
resolution of U.N.O. and Article 21 of the Constitution of India. Water in the
rivers of India has great potentiality to change the miserable condition of the
arid, drought-prone and border areas of India.
The availability of drinking water will benefit about 1.91 lac of people
residing in 124 villages in arid and drought-prone border areas of Jalore and
Barmer districts of Rajasthan who have no other source of water and are
suffering grave hardship.
As already seen, the State of Madhya Pradesh is keen for the
reduction of the dams height to 436 ft. Apart from Gujarat and Rajasthan
the State of Maharashtra also is not agreeable to this. The only benefit from
the project which Rajasthan get is its share of hydel power from the project.
The lowering of the height from 455 ft. to 436 ft. will take away this benefit
even though 9399 hectares of its land will be submerged. With the
reduction of height to 436 ft. not only will there be loss of power generation
but it would also render the generation of power seasonal and not
throughout the year.
One of the indicators of the living standard of people is the per capita
consumption of electricity. There is, however, perennial shortage of power
in India and, therefore, it is necessary that the generation increases. The
world over, countries having rich water and river systems have effectively
exploited these for hydel power generation. In India, the share of hydel
power in the total power generated was as high as 50% in the year 1962-63
but the share of hydel power started declining rapidly after 1980. There is
more reliance now on thermal power projects. But these thermal power
projects use fossil fuels, which are not only depleting fast but also contribute
towards environmental pollution. Global warming due to the greenhouse
effect has become a major cause of concern. One of the various factors
responsible for this is the burning of fossil fuel in thermal power plants.
There is, therefore, international concern for reduction of greenhouse gases
which is shared by the World Bank resulting in the restriction of sanction of
funds for thermal power projects. On the other hand, the hydel powers
contribution in the greenhouse effect is negligible and it can be termed
ecology friendly. Not only this but the cost of generation of electricity in
hydel projects is significantly less. The Award of the Tribunal has taken all
these factors into consideration while determining the height of the dam at
455 ft. Giving the option of generating eco-friendly electricity and
substituting it by thermal power may not, therefore, be the best option.
Perhaps the setting up of a thermal plant may not displace as many families
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as a hydel project may but at the same time the pollution caused by the
thermal plant and the adverse affect on the neighbourhood could be far
greater than the inconvenience caused in shifting and rehabilitating the
oustees of a reservoir.
There is and has been in the recent past protests and agitations not
only against hydel projects but also against the setting up of nuclear or
thermal power plants. In each case reasons are put forth against the
execution of the proposed project either as being dangerous (in case of
nuclear) or causing pollution and ecological degradation (in the case of
thermal) or rendering people homeless and posses adverse environment
impacts as has been argued in the present case. But then electricity has to
be generated and one or more of these options exercised. What option to
exercise, in our Constitutional framework, is for the Government to decide
keeping various factors in mind. In the present case, a considered decision
has been taken and an Award made whereby a high dam having an FRL of
455 ft. with capability of developing hydel power to be constructed. In the
facts and circumstances enumerated hereinabove, even if this Court could
go into the question, the decision so taken cannot be faulted.
DIRECTIONS
While issuing directions and disposing of this case, two conditions
have to be kept in mind, (i) the completion of project at the earliest and (ii)
ensuring compliance with conditions on which clearance of the project was
given including completion of relief and rehabilitation work and taking of
ameliorative and compensatory measures for environmental protection in
compliance with the scheme framed by the Government thereby protecting
the rights under Article 21 of the Constitution. Keeping these principles in
view, we issue the following directions.
1) Construction of the dam will continue as per the Award of the
Tribunal.
2) As the Relief and Rehabilitation Sub-group has cleared the
construction up to 90 meters, the same can be undertaken
immediately. Further raising of the height will be only pari passu with
the implementation of the relief and rehabilitation and on the
clearance by the Relief and Rehabilitation Sub-group. The Relief
and Rehabilitation Sub-Group will give clearance of further
construction after consulting the three Grievances Redressal
Authorities.
3) The Environment Sub-group under the Secretary, Ministry of
Environment & Forests, Government of India will consider and give,
at each stage of the construction of the dam, environment clearance
before further construction beyond 90 meters can be undertaken.
4) The permission to raise the dam height beyond 90 meters will be
given by the Narmada Control Authority, from time to time, after it
obtains the above-mentioned clearances from the Relief and
Rehabilitation Sub-group and the Environment Sub-group.
5) The reports of the Grievances Redressal Authorities, and of Madhya
Pradesh in particular, shows that there is a considerable slackness
in the work of identification of land, acquisition of suitable land and
the consequent steps necessary to be taken to rehabilitate the
project oustees. We direct the States of Madhya Pradesh,
Maharashtra and Gujarat to implement the Award and give relief and
rehabilitation to the oustees in terms of the packages offered by
them and these States shall comply with any direction in this regard
which is given either by the NCA or the Review Committee or the
Grievances Redressal Authorities.
6) Even though there has been substantial compliance with the
conditions imposed under the environment clearance the NCA and
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the Environment Sub-group will continue to monitor and ensure that
all steps are taken not only to protect but to restore and improve the
environment.
7) The NCA will within four weeks from today draw up an Action Plan in
relation to further construction and the relief and rehabilitation work to
be undertaken. Such an Action Plan will fix a time frame so as to
ensure relief and rehabilitation pari passu with the increase in the
height of the dam. Each State shall abide by the terms of the action
plan so prepared by the NCA and in the event of any dispute or
difficulty arising, representation may be made to the Review
Committee. However, each State shall be bound to comply with the
directions of the NCA with regard to the acquisition of land for the
purpose of relief and rehabilitation to the extent and within the period
specified by the NCA.
8) The Review Committee shall meet whenever required to do so in the
event of there being any un-resolved dispute on an issue which is
before the NCA. In any event the Review Committee shall meet at
least once in three months so as to oversee the progress of
construction of the dam and implementation of the R&R
programmes.
If for any reason serious differences in implementation of the
Award arise and the same cannot be resolved in the Review
Committee, the Committee may refer the same to the Prime Minister
whose decision, in respect thereof, shall be final and binding on all
concerned.
9) The Grievances Redressal Authorities will be at liberty, in case the
need arises, to issue appropriate directions to the respective States
for due implementation of the R&R programmes and in case of non-
implementation of its directions, the GRAs will be at liberty to
approach the Review Committee for appropriate orders.
10) Every endeavour shall be made to see that the project is completed
as expeditiously as possible. <H
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