Heights of concern

The Narmada Bachao Andolan's attempt to challenge the Narmada Control Authority's decision to raise the height of the Sardar Sarovar Dam to 95 metres suffers a setback in the Supreme Court.

A SUPREME COURT Bench consisting of Justices Santosh Hegde and Sam Variava transferred to another Bench on June 5 the Narmada Bachao Andolan's (NBA) petition seeking a stay on the construction of the Sardar Sarovar Dam as the Judges could not agree on its merits. The decision disappointed the NBA whose counsel, Shanti Bhushan and Prashant Bhushan, had sought to expose before the Bench the hollowness of the official claims on the rehabilitation and resettlement (R&R) of project-affected families (PAFs) in accordance with the Supreme Court's judgment of October 2000 permitting the construction of the dam.

In October 2000, the Court entrusted the Narmada Control Authority (NCA) with the responsibility of granting permission to raise the height of the dam above 90 metres. This, it said, should be done after ensuring that the plans to resettle the PAFs and safeguard the environment were implemented pari passu. The NCA acts on the advice of its sub-groups on R&R and the environment. In February at its 37th meeting, the sub-group on environment recommended that work on raising the dam height up to 100 m be taken up after receiving clearance from the sub-group on R&R. The latter recommended the raising of the height up to 95 m after consulting the grievance redressal authorities (GRAs) of Gujarat, Maharashtra and Madhya Pradesh on the resettlement work already carried out. (The GRAs were appointed by the Supreme Court to ascertain independently the facts and the ground realities and give directions to redress individual grievances.)

At its 64th meeting, held in New Delhi on May 17, the NCA decided to permit the raising of the dam's height from 90 m, its elevation level or EL, to 95 m, plus three-metre-high humps. The decision appears to have been influenced by an overriding concern to complete the project by June 2005 as per its action plan, regardless of the need to meet the R&R requirements corresponding to each stage of construction.

The NBA's petition challenges the legality of the NCA's decision on the grounds that several families facing submergence at a dam height of 95 m have not yet been rehabilitated in terms of the Narmada Water Dispute Tribunal Award (NWDTA) and the Supreme Court's judgments. The respondents - the NCA, the Central government and the governments of Gujarat, Madhya Pradesh and Maharashtra - filed detailed written affidavits in response to the petition. The NBA's counter-affidavits and replies throw light on the official claims about implementing R&R plans in accordance with the Supreme Court's judgment.

The Bench had asked GRAs of the three States to submit interim reports on R&R by June 1. The GRA of Maharashtra told the court that the State government did not have sufficient agricultural lands to resettle the displaced families. It doubted whether the PAFs could be resettled six months before submergence, as laid down by the Supreme Court in B.D. Sharma vs Union of India (1991).

The GRA of Madhya Pradesh admitted that it could not verify the information furnished by the Narmada Valley Development Authority because it did not have the necessary infrastructure. Curiously, it said that the R&R sub-group could give clearance to raise the dam height up to 95 m if it was satisfied, on the basis of verification by NCA officials, that there had been substantial compliance with the provisions in the NWDTA relating to rehabilitation. It pointed out that if clearance was given to raise the height up to 95 m, submergence was likely to take place in July 2002 and hence the six-month timeframe fixed by the Supreme Court for R&R could not be met. The GRA made it clear that if the Supreme Court's judgment in B.D. Sharma remained unaffected by its judgment in the Sardar Sarovar case in 2000, clearance could not be given to raise the height to 95 m even if the R&R sub-group was satisfied. It advised the government to seek the Attorney-General's opinion in this regard.

Attorney-General Soli Sorabjee's opinion was that the Supreme Court's October 2000 judgment reversed its judgment in B.D. Sharma. This helped the government take the stand that it was no longer necessary to adhere to the six-month timeframe for rehabilitation. In B.D.Sharma, the Supreme Court modified the NWDTA's insistence on completing rehabilitation one year prior to submergence. The principle behind the NWDTA and the Supreme Court fixing a timeframe was that it would give independent agencies sufficient time to verify official claims on rehabilitation. There is an opinion that the Supreme Court might not have intended to reverse this principle while giving the judgment in October 2000 as the context in which the majority Judges used the expression pari passu was a different one. Only a clarification from the Supreme Court could set at rest the doubts in this regard.

When another Bench of the Supreme Court takes up the NBA's petition, it may have to grapple with the correctness of the distinction made by the R&R sub-group between persons affected temporarily and permanently. The agenda notes of the 52nd meeting of the R&R sub-group, held in February 2002, say: "Bifurcation of PAFs into temporary/permanent affected PAFs and giving priority to permanently affected PAFs in R&R. This will reduce the R&R works drastically as the height of the Sardar Sarovar dam goes up." That is, if a piece of agricultural land faces submergence because of the 'backwater effect' caused by a one-in-100-year flood, it is deemed to face only temporary submergence and its owners need not be offered alternative arable land now. However, if the land has a house site that may be temporarily affected, its occupants require resettlement. Applying this principle, the Madhya Pradesh government claimed that only 1,833 PAFs in 32 villages were affected by permanent submergence of agricultural fields or temporary submergence of houses.

The NBA says that there is no basis to make a distinction between permanently and temporarily affected persons and that the NCA itself had rejected this distinction at its meeting on December 18, 1998. The NCA held then that resettlement of both categories would be a prerequisite for increasing the dam's height.

The NBA says in its petition that temporary submergence can destroy standing crops and wash away houses with all the possessions of their residents. This, it said, could be understood by anybody who had seen the fury of the Narmada. According to the NBA, around 8,000 families, mostly belonging to the Scheduled Tribes, in the three States face the prospect of submergence in the coming monsoon because of the NCA's decision to raise the height of the dam.