NARMADA BACHAO ANDOLAN ETC. ETC. v. UNION OF INDIA AND ORS.

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 D 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 .E Environment Protection Act cannot be regarded as having any retrospective effect. The said not_ifi.cation _dated 27th January 1994, inter alia, provides as follows: "Now, therefore, in exercise of the powers conferred by sub-section (l) and clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 (29of1986) read with clause (d) of sub-rule (3) F 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 clearance of the Central Government in accordance with the procedure now specified. In

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 179

the present case clearance was given by the Central Government in 19~7 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 B 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 C 100 or so villages which are almost I 00 % 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 modem amenities like roads, hospitals and schools are far more a reflection of the neglect and disregard by the Government over tht'. last fifty years than on anything else. Of the 193 villages stated to be affected by Sardar Sarover 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 G

lands will be acquired for drainage; I 0,000 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 H

180 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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 B and the estimate of the land required for these PAFs is also on a much lower side. The basis for making this submission is:

(l) 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. c (2) Incorrect surveys have been conducted and the affected persons have serious apprehensiorts about the validity of the surveys since at many places the level markings are suspect, in many cases the people '1affected 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 D 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 soh is linked to the· date of issuance of notification. Since land acquisition process is still incomplete the number of adult sons entitled to land would increase with the issuance of fresh Section E 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 muc~ larger than what is considered in the Master Plan.

F 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 bein£ more favourable, is leading to a situation where the oustees are forced to shift to Gujarat. The other lacunae which are stated to have mafly serious prob.terns ..... _ G 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,

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 181

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 llJarmada Tribunal made detailed provision regarding rehabilitation of the oustees which required that there should be village wise community rehabilitation. D 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 E submission is that no specific rehabilitation village, as envisaged by the Tribunal's 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, ;tis alleged, is being destroyed due to dispersal of the community who are being resettled at different sites. F 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 G 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 H

182 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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 ·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 - B 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 hecta~es 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 n 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 oustee~ 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 . E 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 F 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. G 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 ofsubmersion. lil B.D. Sharma v. Union of India's case this Court has held that resettlement and rehabilitation has to be do.ne at least six months in advance of submersion, complete in all respects. H It is, therefore, contended that since offers to the Madhya Pradesh oustees

NARMADA BACHAO ANDOLAN v. U.O.I. [KIRPAL, J.] 183

affected at 90 mtr. to be settled in Madhya Pradesh has not be~n made, there cannot be any question of fuf'ther 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 i.s contended that the decisions which are taken in an effort to solve the grievantes 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. D It is a case of the petitioners that there is a need for independent monitoring agency in the three States ~ho should be asked to monitor the R&R of the oustees and see to the compliance with the NOWT award. No construction should be permitted to be undertaken without clearance from E. 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 red.uce submersion and displacement of 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 I village in Madhya Pradesh) are getting submerged fully and the rest 241 villages are getting affected partially. H

184 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A The state-wise land coming under submergence (category-wise) is given below: STATES (In Hectares)

SI. No Type of Gujarat Maharashtra Madhya Total B land Pradesh

Cultivated land 1877 1519 7883 11279

Forest Land 41(i6 6488 2731 13385 Other land c including river bed 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). E The ratio of some of the existing schemes is as much as 25% as can be seen from the table below:

Sr. Name of State Benefite d Sub me Irrigation Percentage No. Project Area (in ha) rgence benefit of area Area. per ha submerged F (in ha) Suber- to area gence irrigated

Hirakud Orissa 251150 73892 3.40 29.42

G Shriram- Andhra sagar Pradesh 230679 44517 524 19.14

Gandhisa- Madhya gar Pradesh 503200 66186 7.60 13.15

H Paithan Mahara- 278000 35000 7.94 1529

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, .I.] 185 shtra A Tungbha- Kamataka 372000 37814 9.84 10.16 dra ,,. Pench Maharashtra 94000 7750 12.13 824 B Nagarjun- Andhra 895000 28500 31.40 3.18 sagar Pradesh

Bhakra Himachal 676000 16800 4024 2.48 Pradesh Sardar Gujarat 1903500 37533 50.71 1.97 c Sarovar

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, D namely, 97% and I 00% 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 modem 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 H

186 SUPREME COURT REPORTS (2000] SUPP. 4 S.C.R.

A richer, non-tribal families ofNimad 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, 1~94 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 Sarovar 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 ttie 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 dispensary, one seed store, one children's 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 read; 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 G 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 H unmarried major <;laughters of all categories of PAFs.

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 187

In the environmental clearance granted by the Ministry of Environment A 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 Tribunal's Award as well as environmental clearance. The Tribunal's Award B

- 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 lettP-r 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 ~ngle, it was estimated that 12180 families would be atfe:.•..u in three States. Based on these numbers, the State Governments independently prepared their action plans and announced their R&R policy based on E Tribunal's 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 3/4.5.1989. 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 F benefits even to other categories of persons who were not covered -by the Tribunal's 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 G . 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, H

188 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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 l 00 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.

B The reason for increase in number of PAFs has been explained in the Master Plan and the reasons given, inter a/ia, are:

(a) After CWC prepared backwater level data, the number of PAFs in Madhya Pradesh (MP) increased by 12000 PAFs as their houses are affected in a l in I 00 years flood. c (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 ... (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 E 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.

F (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-l in its 1994 report G 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 H was held. This meeting was attended by the Chief Ministers of all the States

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 189

including Rajasthan and representatives of Ministry of Environment and A 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 B 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 C to the Government of India, Ministry of So:ial Justice and Empowennent on 21st January, 1999 at New Delhi and action plan for re-settl~ment 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 F~ 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, G festivals, eye camps, rural development seminar for village workers etc.

* Establishment of rehabilitation committees at different levels.

* Respect of traditional beliefs, rituals and rights at the starting of H

190 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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. .... I

* Installation of all the religious deities with the due consultation of B 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 0 C culture.

* P_roper use of built-in-mechanism of cultural heritage of the displaced persons.

* Launching of culturally appropriate development plan. D * 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 exist~ng development programmes were strengthened for ensuring sustainable development at the rehabilitation sites. These were Integrated E 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 F Training Institute (ITI); Tribal Development Programme (TOP), financial benefits to the backward classes, economically weaker sections, tribals and other backward classes (OBC), eye camps, subsidies to farmers (seed, tractorisation, fertilizers, 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

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 191 irrigation, fertilizers kit distribution, gypsum treatment of soil etc. A 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 area'i/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. Whereas at an earlier point of time in \ 994, the construction schedule had required the minimum block level to be raised to E 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 Tribunal's Award. The reason for the same, as already noticed, is the liberalisation of the R&R H

192 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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 th~ liberalisation of the packages by three States shquld 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 envis·aged in the Tribunal's Award. E 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 F 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 G 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 l 00. 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

NARMADA BACHAO ANDOLAN v. U.0 .1. [KIRPAL, J.] 193 rehabilitated as per the Award will be provided with benefits of the package offered and chosen.

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 th~ landholders had continued to stay in their original houses and about 381 p·ersons were stated to have been provided permanent employment in the project works. At the time, the land was acquired in I 962-63, 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. C

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 D 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 l_eading to greater agricultural output. We agree with this view and that is why, in the E 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 p clear requirement of village-wise communication rehabilitation which had not been complied with, the contention of the respondents was that no provision of Tribunal's Award had been shown which caused any such obligation on the Government of Gujarat. What the Award of the Trib1,mal required is re- 1 settlement of the PAFs in Gujarat at places where civic amenities like dispensary, schools, as already been referred to hereinabove, are available. G Subsequent to the Tribunal's 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 Tribunal's Award H

194 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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 B 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-a-vis the number of oustees families. Thus, one panchayat ghar, one dispensary, one childrens' park, one s.eed store and one village pond is the norm for 500 families, one primary school (3 rooms) for 100 C 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 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 Tribunal's Award stipulated and one objective could not be seen in isolation of the other objectives. F The Master Plan, 1995 of Narmada Control Authority also pointed out that "~he 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

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 195

the living conditions of the PAFs in their submerging villages with the rehabilitation packages first provided by the Tribunal's 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 C Gujarat, it was, inter alia, mentio'1ed 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 D 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 children's 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. E

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 Tribunal's 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 H

196 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R ..

A have adequate irrigation facilities. It was contended that because of the delay in the construction of the project, the cut off date of I st January~ 19'i!7 for extending R&R facilities to major sons were not provided. The Tribunal's 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 B by fixing the cut off date of 1.1.1987 for granting benefits to major sons. According to the Tribunal's 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. C 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 mer~ly to comply with the provisions of the Tribunal's 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 D 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 E undertaken without the clearance of such an authority, the respondents are right in submitting that there is no warrant for such a contention. The Tribunal's 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 F 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 G 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 H The Ministry of Water Resources, Government of India is the Nodal

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 197

Ministry for the Sardar Sarovar Project and other Union Ministries involved A are the Ministries of Environment and Forests and Social Justice and Empowerment. As a consequence of the Tribunal's Award, Narmada Control Authority was created to co-ordinate and oversee the Q¥erall 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 B 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 & C 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: D I. 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 E 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 in respect of monitoring and evaluation of the progress in F

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 G from environmental angle by the Government of India and the Ministry of Environment a~d Forests.

6. To coordinate states/agencies involved in the R&R programmes of SSP and ISP. H

198 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 7. To undertake any or all activities in the matter of re-settlement and rehabilitation pertaining to SSP and ISP. REHABILITATION COMMITIEE

This Court vide order dated 9.8.1991 in B.D. Sharma v. Union of India B and others, [ 1992] Suppl. 3 sec 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 rel?ort 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 C 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 D 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 .. E are also stated to be monitoring the progress ofR&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

F 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 .

.G 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.O. Desai, retired Chief Justice as its H Chairman. This machinery had been established to:

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 199

(A) create an Authority before whom oustees who have re-settled A 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 B 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. c 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. D (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., E (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/J 3.1.2000 has noted as follows: H

200 SUPREME COURT REPORTS (2000] SUPP. 4 S.C.R.

A "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 country's B development".

The Grievances Redressal Cell has dealt with and decided a total of over 6500 grievances.

C 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 D 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 E 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; F (ii) Review of Narmada oustees employment opportunity rules;

(iii) Issue relating to Kevadia Colony;

(iv) Issue relating to tapu land;

G (v) Development of Kevadia as a tourist centre etc.

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

NARMADA BACHAO ANDOLAN v. U.O.I. [KIRPAL, J.] 201

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 B 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 ofR&R official before the District Collector who is required to dispose off the same within a period C 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 D 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 E 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 F 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 G 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, H

202 SUPREME COURT REPORTS (2000] SUPP. 4 S.C.R.

A 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.

B 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 C 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 D and each of the three rehabilitating States have set up an 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. .• I

E 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 hav~ also filed an affidavit. F 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:

G State Total number of PAFs Balance PAFs to be ~

resettled/allotted agricultural resettled in Gujarat ' land in Gujarat

Gujarat 4575 25 H

.. NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, .I.] 203 Maharashtra 710 290 A Madhya Pradesh 3280 10450

Total 8565 10765

It is the case of State of Gujarat that 8565 PAFs have been accommodated B in 182 R&R sites fully equipped with the requisite civic amenities as provided by the Tribunal's 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 C 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 D 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 selected 35 sites in Gujarat." E 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 F 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. G With.r~gard to the status of PAFs at RL I IO mtr. all the PAFs of Gujarat have been re-settled and 276}. PAFs [2642 of Madhya Pradesh and 119 of Maharashtra] remain to be re-settled in Gajarat 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 H

204 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A has in its possession 8146 hectares. The civic amenities in 40 new R&R sites ai;e 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: D Sr. No. PARTICULARS Land {Jn ha]

1. Land identified (offers received in respect of 15716 ha. private land and Government land) !5716 ha.

E 2. Land available (private land for which price is 480 ha.

approved by Expert Committee and offer/counter offer conveyed and acceptance of land holder obtained. , Land in possession of SSPA/GOG in 12 districts 8416 ha. F 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. G 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

NARMADA BACHAO ANDOLAN v. U.O.I. [KIRPAL, J.] 205

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 C 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-grouµ 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) . At the time of allotment, the State Government would again have H

206 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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 neighbourµtg farmers removing the top soil or from diverting natural drains B passing through their fields towards the land purchased for R&Retc.

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 C of the salient features which are highlighted in this behalf ~re as under:

* 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 D 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. E * 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 ofNGOs.

F 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 G 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 H also informed that if he is aggrieved with the decision he may

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.) 207 prefer an appeal to GRA within thirty days. A * The Single Window Clearance System's 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 upgradfog 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 E 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. H

208 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A * 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 problems (getting ration B 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 C 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- D 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.

E * 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 speciality hospital and necessary treatment given free of cost. F * 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.

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 209

* School going children are covered under the Mid-Day Meal A 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 B

.... * 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 c 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. D An Agricultural Cell has been set up in the SSP~ which assists the Grievances Redressal Machinery in resolving the problem relating to the agricultural land. Th~ salient features of this cell are as follows:

* The Agriculture Cell is involved in pu~chasing 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.

* 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 H

210 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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%).

B * 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.

c * 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.

D * 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 E number of measures have been taken to improve the 0rganisational 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 SSP A for Rehabilitation, Re-settlement and Planning. F 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 lev~I.

G * 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 spec"ial reference H to their family composition, marriage, births; deaths, life

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 211 expectancy, literacy, customs, culture, social integration etc. A * Staff is being trai~1ed 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 lndia, Hyderabad. B 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 Tribunal's 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. lt 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. lo this connection we may take note of the 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:-

I. 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 3 lst December, 2000. ln 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 G 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 H

212 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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.

B 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 c during monsoon, an un.dertaking 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 ofSSPA 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 D December, 2000.

In addition to the aforesaid undertaking of Sh. V.K. Babbar, undertakings of the Collectors ofKhedr, 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 ofright 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 satis.fied that more than adequate steps are being taken by the State of Gujarat not only to implement the A ward 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 Court's H order dated 9th May, 2000, an affidavit of Sh. H.N. Tiwari, Director (TW),

NARMADA BACHAO ANDOLAN v. U.O.I. [KIRPAL, J.] 213

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 G 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. H

214 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A 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 B 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. c Affidavit on behalf of the State of Madhya Pradesh draws a picture of rehabilitation which is quite different from that of Gujarat. T~ere 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 D been passed. The impression which one gets after reading 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 E 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 Tribunal's 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 F 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, ..... G 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 H the construction of the dam is to be of Gujarat and to a lesser extent to

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 215

Maharashtra and Rajasthan. In a federal set up like India whenever any such A 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 B to comply with the terms thereof.

On behalf of the State of Maharashtra affidavit in response to this Court's 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 c Department 4191.86 Hectares

(ii) Land which could not be allotted at present to PAF

(a) Gaothan land [used residential purposes 209.60 hectares D (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 E Total area of land allotted To 1600 PAFs 2434.01 hectares

Remaining cultivable land Available with the State 2752 - 2434.01 318.50 hectares F 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 funding, 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 Maharashtra has G 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 Chainnan. 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. H

216 SUPREME COURT. REPORTS [2000] SUPP. 4 S.C.R.

A 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.

B There are only three sources of water. They are rainfall, ground ~ater 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. E which is incidentally less than the capacity ofKariba 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 p 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 G 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 tb the smallest percolating tanks meant H to tap the rain water are nothing but water harvesting structures to function

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 217 by receiving water from the common rainfall. A 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- B 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 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 E 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 F 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.

rt is now well-settled that the courts, in the exercise of their jurisdiction, G 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 people's fundamental rights are not transgressed upon H

218 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A 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 it's 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 D Interest Litigation or Private Inquisitiveness Litigation.

o 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 E 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.

F While protecti11g the rights of the people from being violated in any manner utmost care has to be taken that the C:mrt 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 Court's jurisdiction. ....• .

G 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 a constitutional fundamental. The role of the higher judiciary under the H constitution casts on it a great obligation as the sentinel to defend the values