A tale of two dams

Jairam Ramesh's order of May 6 rescinding his earlier stop-work notice with regard to the Maheshwar dam surprises many.

in New Delhi

ON May 6, Jairam Ramesh, the Union Minister of State for Environment and Forests, made a confession while responding to a questioner at a public meeting. He said he had been under pressure to overlook environmental violations while clearing certain projects. Regularisation of illegality is a peculiar Indian characteristic. First you break the law and then you ask to regularise it, he said. Many times, I am forced to regularise it [violations]. But at some stage the signal has to go [that] laws are laws [and that] they cannot be violated, Jairam Ramesh said.

On the same day, Jairam Ramesh signed an order lifting his earlier stay on the completion of the Maheshwar hydel power project in Madhya Pradesh which only corroborated his confession about the limitations of his office. The order has 18 paragraphs chronicling developments since February 17, 2010, when the Ministry of Environment and Forests (MoEF) issued a show-cause notice under Section 5 of the Environment (Protection) Act, 1986, to Shree Maheshwar Hydel Power Corporation Limited (SMHPCL). The notice asked SMHPCL to explain why the original environmental clearance granted to it on May 1, 2001, should not be revoked and a direction for closure of the project should not be issued owing to its non-compliance with various conditions laid down when the environmental clearance was issued.

In particular, the MoEF brought it to SMHPCL's notice that no progress had been made regarding the creation of two wildlife sanctuaries or the resettlement and rehabilitation (R&R) of project-affected families (PAFs). The conditions for the environmental clearance specify clearly that progress in the implementation of measures to safeguard the environment and to rehabilitate the project-affected should keep pace with the concreting work.

In its reply to the notice, SMHPCL pointed out that the project was being set up in accordance with the terms of the national policy to promote the development of hydroelectric power. The project would ultimately provide 400 megawatt (MW) of peaking power and augment the supply of drinking water to Indore and adjoining cities/areas, which faced an acute shortage of drinking water, it said. The company also claimed that Rs.2,350 crore had already been spent on the project and that stopping it, therefore, would not be to the advantage of either the PAFs or the nation. The company alleged that the Narmada Bachao Andolan (NBA) was not only opposing the project but obstructing the R&R work in league with a few large landowners, who had traditionally been exploiting landless labourers. It placed the responsibility for the creation of the two sanctuaries on the State government.

The MoEF, after a detailed examination of SMHPCL's reply, issued a stop-work notice to it on April 23, 2010. The notice also carried a report on the status of the company's compliance with the various conditions stipulated in the environmental clearance. The project will affect 61 villages. Of these, 13 will be fully submerged and nine partially submerged. In 39 villages, only land will be affected, and no shifting of abadi (houses) will have to take place. But the R&R policy makes no distinction between villages where only land is affected and those that will be fully or partially submerged.

The MoEF cited three major grounds for issuing the stop-work notice: negligible R&R work has been done; no agricultural land has been identified for rehabilitation purpose (out of 22 submergence villages, R&R is almost complete in respect of only Jalud village); and two wildlife sanctuaries have not been created.

The Maheshwar project has 27 gates, 22 of which were installed and were operational before February 17, 2010. The stop-work order affects the remaining five gates, which are at the centre of the dam and the river.

Jairam Ramesh noted that between May 2010 and December 2010, letters were exchanged between the State government and the MoEF and that there were periodic reviews by the Prime Minister's Office (PMO) as both the current and former Chief Ministers of Madhya Pradesh, Shivraj Singh Chouhan and Digvijay Singh respectively, were keen that work on the project recommenced.

On December 22, 2010, Jairam Ramesh decided not to lift the stop-work order because he felt that there had been very little progress on R&R. The environmental clearance was clearly predicated on R&R proceeding at the same rate as dam construction. He found clear evidence that this condition had been violated. Despite continued pressure from the PMO, the Ministry of Power, the State government, and Digvijay Singh, Jairam Ramesh reiterated on January 14 that he would not lift the stop-work order in the absence of a credible guarantee that R&R would be completed as planned before March 31. He also recorded that the resumption of work must be linked with progress on R&R since R&R schedules had slipped badly in the past.

On April 13, Jairam Ramesh again recorded that the status provided by the Government of Madhya Pradesh for the villages coming under submergence was incomplete and its claim of having completed 70 per cent of R&R was not convincing. Therefore, he reasoned that the moratorium on the construction work on the five spillway gates should continue.

But Jairam Ramesh's May 6 order would like us to believe that things changed dramatically on May 2, when the PMO held its review meeting. He recorded that after this meeting, the Central Water Commission (CWC) had sent a technical report to the MoEF on May 4 recommending the installation of the remaining five radial gates to avoid damage to existing construction in the event of a breach of the cofferdam due to monsoon floods.

A cofferdam was constructed using compacted boulders and loose earth materials as a temporary measure while the dam was under construction. It is a semicircular mud structure built to allow the raising of the dam's height from the foundation to the crest level, which is a permanent cement structure. The gates are above this level. This concrete structure of the dam is already complete, making the cofferdam redundant. In any case, say the NBA activists, the cofferdam was there during the last monsoon, and it did not cause any damage. They are surprised that the CWC sought to raise a false alarm and that Jairam Ramesh uncritically accepted it.

In the last paragraph of his order, Jairam Ramesh concluded that he had no option but to agree to the lifting of the stop-work order on the construction of the last five spillway gates. However, he added that these gates should not be lowered until the satisfactory completion of R&R and its review and that the filling up of the reservoir up to 154 metres would only be considered after the R&R work had been completed. Jairam Ramesh's conclusion is inconsistent with all the facts, even though it sounds laudable.

Allowing the construction of the remaining gates to proceed without completing R&R will mean that the PAFs will be faced with a fait accompli. The authorities could then use this fait accompli to force the PAFs to accept whatever compensation is given to them. On the contrary, if R&R takes three long years after construction, Jairam Ramesh's order will ensure that the project cannot be operational and will cause huge losses to the taxpayer. That is why the government's R&R policy insists on R&R proceeding pari passu with construction.

This R&R policy, approved for those ousted from their lands for the Narmada projects in 1987, stipulates that they will have to be provided land for land, with a minimum entitlement of two hectares (ha) of irrigated land. The NBA has alleged that in the last 24 years, since the framing of the R&R policy, the state has refused to carry out its obligations and has not allotted land to a single person affected by the Narmada dam projects.

Omkareshwar dam case

To understand the importance of R&R proceeding pari passu with construction, Jairam Ramesh only needs to read the latest Supreme Court judgment in the Omkareshwar dam case, delivered on May 11. In this case, the NBA challenged the failure to implement the R&R policy in letter and spirit with regard to those affected by the dam an intra-State project to generate 520 MW of power, which also involved the irrigation of 1.47 lakh ha of agricultural land. Thirty villages were expected to be submerged at the full reservoir level, that is, 196.6 m. The dam was completed in 2006.

A Supreme Court Bench comprising Justices J.M. Panchal, Deepak Verma and B.S. Chauhan held in paragraph 48 of its judgment that the State authorities ought to have assisted the PAFs to purchase land of their choice from other agriculturists and met the difference of cost, if any, over and above the amount of compensation. While determining such issues, the Bench said, the State authorities could take into consideration the fact that the land so purchased should not be of a lower quality than the land the PAFs originally had. This exercise, the Bench opined, could have been done pari passu with the construction of the dam and could have been completed much in advance of the completion of the dam to its full water level.

In the process of development, the Bench held, the state could not be permitted to displace tribal people, a vulnerable section of society that suffers from poverty and ignorance, without taking appropriate remedial measures for their rehabilitation. The court was not oblivious to the fact that social and economic reasons had caused disaffection and thus tribal areas were today in the grip of extremism as tribal youths had fallen prey to extremists' propaganda, the Bench opined. The Bench further held that the right to cultivation was part of the fundamental right to life and that peasants whose only experience and skill was farming could not survive without land. Therefore, it said, payment of compensation might not be enough, and if an R&R scheme was framed by the government, it was required to be implemented not only as a fundamental right but also under the Directive Principles of State Policy.

The NBA has termed this judgment a moral victory, notwithstanding certain infirmities in it. It hopes that the judgment will be implemented properly as it could transform the lives of those ousted from the Narmada valley, who have hitherto been condemned to leading a life of hunger and pauperisation by the authorities.