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The Narmada Dispute

Written by: Neha Bahl - 3rd Year Student, NALSAR University of Law, Hyderabad
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It is universally acknowledged that every development project is meant for the larger good of the people. But no project has stirred up such widespread controversy as the largest Sardar Sarovar Project on Narmada River. The humanitarian issue of the neglect of the poor, displaced and the delayed and half-hearted efforts made by the Government to rehabilitate them, made the Narmada Bachoa Andolan activists led by Medha Patkar take their agitation right to the heart of India, i.e., New Delhi where they thought they would get the attention of the entire country through media

The project was welcomed by the Governments of beneficiary States- Rajasthan, Gujarat, Maharashtra and Madhya Pradesh. But controversies arose from the displacement of thousands of people as a result of submergence of vast areas, inhabited mostly by Dalits and Adivasis. There is no doubt that the huge hydro-electric project will benefit all the four States, providing easy access to drinking water, irrigation and power on its completion. But when and how long one has to wait for these benefits. The benefits may be commendable, but the community and the Governments must take due care of those in these four States who have lost their homes and livelihood when Narmada has submerged their sweet homes and surroundings.

The Narmada Bachoa Aandolan pinpointed that providing alternative means of livelihood along with houses is more important than distribute money. It also exposed the chinks of corruption at different stages of rehabilitation and underlined the rights of the displaced persons to a decent living. But the Government remained insensitive to the plight of several hundreds who are uprooted from their homes and livelihood. Even the Government is turning deaf ear to the cries of project affected families inspite of their peaceful agitation. Some critics are of the opinion that the dam will benefit the rich industrialists instead of poor agriculturists.

According to Narmada Water Dispute Tribunal Award, the conditions of the clearance of the project, and Supreme Court's judgment of October, 2000 and March, 2005, the construction of the dam is not allowed to outpace rehabilitation work. The main cry of Narmada Bachoa Aandolan is that there should be no question of raising the height of the dam without providing for the corrective measures to meet the failures and deficiencies in rehabilitation work. The current agitation against the project is justified if we see that poor, voiceless, displaced persons are denied justice and human rights. Many of the project affected families complain that they had not been offered compensation. Where they got compensation, its amount was so meager that they could not purchase the area of land to which they were entitled. Some people had to pay bribes for the receipt of compensation. More shocking was that income tax was deducted at source from the amount of compensation paid to the oustees. It is submitted that compensation packages involving cash payment should not be subjected to payment of income-tax because compensation is not the income of the oustees rather it is being paid to them in lieu of what has been taken from them.

According to Naramada Bachoa Andolan, more than 35,000 families remained to be rehabilitated in Madhya Pradesh, Maharashtra and Gujarat at the present height of the dam at 110 meters. According to Narmada Water Dispute Tribunal Award, and the Supreme Court orders, project affected families should be settled at least 6 months in advance of raising the dam height above 110 meters.

It is, however, submitted that the Government and authorities cannot ignore the voice of the poor in a development process. Development need not mean displacement as has happened in Narmada project. Displaced people?s participation in the decision making process should be invited in order to cope with the ground realities which they are facing. We are witnessing the displacement of families in the wake of development projects since 1960. But until the anti-dam movement in the Narmada valley, the displaced persons were treated as dispensable citizens. The time was opportune for court's intervention.

The foundation of Narmada dispute was laid with the Sardar Sarovar Project. In order to resolve the Narmada dispute the Government of India in exercise of its power conferred upon it under the Inter State Water Disputes Act, 1956, Section 4, constituted a tribunal and referred the matter to the tribunal. The State of Gujarat made an offer before the tribunal that the oustees can be resettled and rehabilitated in the State of Gujarat where a rehabilitation package would be granted if they opt for the same and if the oustees opt to stay back in their home state, the entire expenses for the purpose of rehabilitation shall be borne by the State of Gujarat.

The Narmada Water Dispute Tribunal gave an award on 16-8-78, by virtue of Section 5 (2), (4) of the Inter State Water Dispute Act, 1956. As regards Relief and Rehabilitation, the award inter alia provides that no submergence of any area would take place unless the oustees are rehabilitated. In terms of the award, the tribunal directed constitution of an inter state administrative authority known as Narmada Control Authority for the purpose of securing compliance and implementation of the decision and directions of the tribunal. The Narmada Control Authority in its turn constituted one or more sub-committees including one relating to Relief and Rehabilitation.

Failed Rehabilitation and Continuing Outrage:

The agitation of Narmada Bachoa Andolan shows that the project affected families have not been fully rehabilitated. Court permitted the height of the dam upto 90 metres. Rise in the height of the dam means submergence of more villages and displacement of thousands of more people from there homes. Since even those displaced earlier had not been adequately rehabilitated, what would be the fate of such additional displaced persons? The Madhya Pradesh Government has been indulging in illegal acts of ex parte land allotments and disbursement of cash compensation to the oustees in order to displace them. According to Narmada Water Dispute Tribunal, the work on the dam could go ahead only if the land based resettlement of oustees below the height is complete and if any of the State could not resettle the people below the particular height, it has to stop the project. According to a survey conducted by Narmada Bachoa Andolan, it was found that more than 3,500 families are still to be resettled as per Narmada Water Dispute Tribunal.

Impact of Intervention of the Court:

Narmada Bachoa Andolan, filed a writ petition before Supreme Court raising several issues including Relief and Rehabilitation. One of the grievances of Narmada Bachoa Aandolan was regarding attitude on the part of the State of Madhya Pradesh as it made an attempt to wriggle out of its responsibilities to provide rehabilitation facilities to the oustees by offering them cash compensation. It was argued before the Supreme Court that since offer to oustees affected at the 90 metres of the height of the dam to be settled in the State of Madhya Pradesh had not been made, further construction should not be permitted till one year after the resettlement of these project affected families at 90 metres.

Judgment of Supreme Court:

The court gave its main judgment on 18-10-2000 in Narmada Bachoa Andolan v. Union of India. The court was of the opinion that -
(1) Displacement of the tribals and other persons would not per se result in violation of their fundamental or other rights;
(2) On their rehabilitation at new locations, they would be better of than what they were;
(3) At the rehabilitation sites they will have more and better amenities
than those they enjoyed in their tribal hemlets; and
(4) The gradual assimilation in the main stream of society would lead to betterment and progress.

The court further observed that the project affected families will be allotted a house/plot free of cost. The court also noticed that the State Governments have liberalized the policy with regard to resettlement and have offered packages more than what was provided for in the Narmada Water Dispute Tribunal award. In the scheme of liberalization, those project affected families who were even encroachers, landless/displaced persons, joint holders, tapu landholders and major sons having acquired 18 years of age were included.

The Supreme Court also took stock of the situation that although in terms of the award, those sons of the oustees who had become major one year prior to the issue of the notification for land acquisition were entitled to the allotment of the land. The State of Gujarat made a relaxation thereto so as to cover all those who became major upto 1-1-87. The court noticed that Relief and Rehabilitation group and the Grievance Redressal Authority having been established a system had come into force for ensuring satisfactory Relief and Rehabilitation of the oustees. Court also noticed that at the instance of Grievance Redressal Authority, project affected families were being issued sanads or certificates for the lands allotted to them.

The Supreme Court revealed the impression of State of Madhya Pradesh that the main effort of the said State was to try and convince project affected families that they should go to Gujarat whose rehabilitation package and effort is far superior to that of State of Madhya Pradesh. Because of better rehabilitation package a vast majority of project affected families of Madhya Pradesh have opted to be resettled in Gujarat. It is submitted that this does not by itself absolve the State of Madhya Pradesh of its responsibility to take prompt steps in accordance with the award relating to Relief and Rehabilitation. In fact, the State of Madhya Pradesh has been contending before the Supreme Court that the height of the dam should be lowered to 436 feet so that lesser number of people are dislocated. But the court found that even with regard to Relief and Rehabilitation of the oustees at 436 feet, the Relief and Rehabilitation programme of the State is nowhere implemented. Truly speaking, the State of Madhya Pradesh is under an obligation to affectively resettle those oustees whose choice is not to go to Gujarat. Thus, the court gave appropriate directions to ensure that the speed in implementing Relief and Rehabilitation picks up.

Directions of the SC:
a) As the Relief and Rehabilitation subgroup has cleared the construction upto 90 metres, the same can be undertaken immediately. Further raising of the height will be only pari passu with the implementation of the Relief and Rehabilitation measures and on the clearance by the Relief and Rehabilitation subgroup. The Relief and Rehabilitation subgroup will give clearance for further construction after consulting the 3 Grievance Redressal Authorities.

b) The State of Madhya Pradesh, Maharashtra and Gujarat were directed to implement the award and give Relief and Rehabilitation to the oustees in terms of the packages offered by them. States were also directed to comply with the directions of the Narmada Control Authority or the review committee or the Grievance Redressal Authorities.

c) Naramada Control Authority will within 4 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 and each State shall abide by the terms of the action plan so prepared by the Narmada Control Authority and in the event of any dispute or difficulty arising, representation may be made to the review committee. But each State shall be bound to comply with the directions of Narmada Control Authority with regard to the acquisition of land for the purposes of Relief and Rehabilitation to the extent and within the period specified by Narmada Control Authority.

It is most respectfully submitted that the directions of the Supreme Court given in the main judgment of 2000 were not implemented in letter and spirit. Thus, further applications were filed by Narmada Bachoa Andolan in the Supreme Court for rehabilitation of the oustees in accordance with Narmada Water Dispute Tribunal award. They also prayed for direction that the orders passed by the Grievance Redressal Authority be set aside and not acted upon.
asa The Supreme Court in its main judgment had permitted the construction of the dam upto 90 metres and held that further raising of the height would be only pari passu with the implementation of Relief and Rehabilitation measures. This part of the judgment if analyzed appears to be most important because the expression pari passu according to Black's Law dictionary meaning has a direct nexus with the raising of the height vis-a-vis implementation of Relief and Rehabilitation progress both of which must proceed equably or ratably which means that Relief and Rehabilitation measures must be undertaken as and when the height of the dam is further raised. Thus, it was held that the applicants are entitled to the benefit of rehabilitation package. The court did not agree with decision of Grievance Redressal Authority in which a distinction was made between temporary and permanent affected.

The decision of the Supreme Court in this respect is justified because if temporarily affectees were kept out of rehabilitation package it would have meant pushing those affectees to a stage of primary poverty. The judgments of the Supreme Court in 2000 and 2005 has glaring as well as darker shades in as much as the project is pushing the project affected families to the stage of primary poverty, the Supreme Court has given a leverage to the State Government not to adhere to the directions of the tribunal because Supreme Court has given a green signal to work on the dam to be completed expeditiously. The lack of linkage between displacement, development and rehabilitation makes out a case for comprehensive review of the project, if not it's scaling down. Otherwise ?tiger-aping? dimension of the project will continue to cause systematic subversion of rule of law.

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