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Sabrang
Sabrang

A Mockery of Justice Delivery

29 Dec 2015

 
Justice Panachand Jain
Justice V. D. Gyani
Justice N.K. Modi
Justice Nagamohan Das

Four retired justices of the Supreme Court have expressed grave concerns at the violation of the law by the states of Madhya Pradesh, Gujarat and Maharashtra with the oustees (internally displaced persons) of the Sardar Sarovar project remaining without fair rehabilitation; the Justices have also decried the false information, on rehabilitation, provided by the (three) state and union government(s) to the Supreme Court where matters related to accountability remain pending since 2008
 
“No Submergence without Rehabilitation” is the law as laid down by the Narmada Water Disputes Tribunal (NWDT) Award and upheld by the Supreme Court of India. Despite this, the hasty manner in which the dam height is sought to be raised by 17 metres today threatens the lives of densely populated villages and a township besides threatening to submerge ancient historical sites of the indigenous peoples, the Adivasis.  This decision to raise the height by 17 metres was suddenly taken by the union government on June 12, 2014. At immediate risk is the fair and legally required rehabilitation of a massive 2.5 lakh population (45-48,000 families) of the Sardar Sarovar project, 45,000 of which are in Madhya Pradesh alone.
 
Four retired judges of the higher judiciary, Justice Panachand Jain of the Rajasthan High Court, Justice V. D. Gyani of the Madhya Pradesh High Court, Justice N.K. Modi of the Madhya Pradesh High Court and Justice Nagamohan Das of the Karnataka High Court conducted the IPT at Rajghat, Badwani in Madhya Pradesh on September 11 and 12, 2015. The complete report is available at
https://www.sabrangindia.in/reports/independent-people%E2%80%99s-tribunal-sardar-sarovar-claims-and-realities-development-and
 
Earlier, a Fact-Finding Committee had surveyed the area and recorded detailed findings. The Tribunal verified these Findings in detail. The concerns expressed by the Central Fact Finding  Committee are:
 
  • Thousands of families, especially the Tribals (Adivasis), fisher folk, landless poor who are under the threat of imminent inundation and thus – forcible displacement, are not being given any alternative place to live, as also, alternative land and livelihood sources, in many cases.
  • The essential components of land-based rehabilitation for even those recognised as project affected, is not being implemented, with many instances of oustees being compelled to opt between barren/conflict ridden lands or paltry monetary compensation, not resulting in actual purchase of land. Cultivable, irrigable lands are not located nor purchased by the Government of Madhya Pradesh (MP) and Maharashtra, while Gujarat seems to be refusing identification of land for those who seeking change of these ‘bad’ lands.
  • Several thousands of people whose houses and lands are in actuality, under threat of being submerged – either permanently or periodically during high flood levels, are not even currently being recognised as project affected families/persons.
  • The reported large scale frauds in compensation and rehabilitation, reached such massive proportions that the MP High Court has constituted a Judicial Commission under Justice S.S. Jha (retired), who has been investigating these widespread fraudulent practices, and is slated to submit its report soon. (This report is expected to be out by December 31,2015)
  • The rehabilitation sites chosen/identified by the governments are in extremely poor conditions, having no adequate facilities for people to live there as per the NWDT norms, with poor water supply, broken roads, no electricity, and non-existent or pathetic education and health facilities.
  • The widespread allegations of gross violation of the laws including the Narmada Tribunal Award, orders of the Supreme Court policy provisions on rehabilitation, orders of the Grievance Redressal Authorities (GRA), guarantees by the Land Acquisition Act, 2003, PESA Act, 1996 in the scheduled areas etc.
The members of the Indian People’s Tribunal visited number of villages on September 11, 2015, villages which are affected by the submergence. The Tribunal heard the testimonies of project affected persons/families and oustees on September 12, 2015 in the presence of about 10,000 oustees of the Sardar Sarovar Dam. The deponents before Tribunal included representatives of the Adivasis from the hilly and plain areas, other farmers who have been entangled in the fake registries scam and who have received meagre cash and denied land, or given land from the land bank, landless oustees, including fish workers, potters, boatmen, small traders etc. Oustees from Maharashtra and Gujarat also expressed their concern and pointed out various violations of the Award. The tribunal held its hearing on the Narmada river bank at Rajghat for five hours and each oustee / deponent stood in the ‘dock’, to make their statements. The following persons deposed:

Devram Kanera, Kailash Awasya, Gokaru Bhilala, Shanta Yadav, Sanobar B Mansuri, Bhagirath Dhangar, Mohan Patidar, Pemal Bahan, Madu Kahar, Sawa Bahan, Ramesh Prajapati, Rahul Yadav, Dayaram Bhai, Mahesh Patel, Hari Bhai, Jagdish Patidar, Mukesh Bhagoria, Ad Umesh Patidar. The deponents from Maharashtra were Noorji Padwi, Punya Bhai, Yogini Khanolkar and from Gujarat deponents were Shankar Kagda, Lakhan Musaphir, Chintamani Bhai, all representing project affected families (PAFs).

A People’s Tribunal headed by four retired judges of India’s higher judiciary has decried the false information, on rehabilitation, provided by the (three) state and union government(s) to the Supreme Court where matters related to accountability remain pending since 2008
 
Bhagirath Dhangar spoke of the plight of hundreds of farmers, workers, small traders, shopkeepers, hawkers etc. whose lands and livelihoods are to be lost by the dam increase, with no alternative Relief & Rehabilitation (R & R) in sight. He questioned the fact that, if the balance is indeed ‘0’, then how is it that the government fair price shops, panchayats, voting and even government licensed wine shops are functioning here? Mahesh Patel exposed the fraud in the name of back water levels due to which 16,000 families has been declared “out of submergence”. He said that all these unscientific claims would be blown up by Narmada herself and her fury into which 99 tributaries and 999 large drains flow. Fish worker families represented by Savabai (Pichhodi) & Madubhai (Chikalda) demanded fishing rights in the reservoir and alternative livelihood. They said that fishing and riverine rights cannot be compensated in monetary terms.
 
Karan Yadav from Pipri read out the message from Ramesh Patel, the MLA of Badwani, admitting that governmental reports of R&R are patently false and that 99% oustees, still reside in the original villages awaiting R&R; which means that there has been no real rehabilitation at all. Patel submitted a written demand to the Tribunal that the SSP gates should not be installed at this stage, without completion of R&R, as per law. Meera spoke of the absolute failure and connivance of the elaborate machinery of monitoring and project authorities in complying with the Supreme Court’s orders and demanded that all the clearances granted by the authorities are unlawful and need to be set aside by the Apex Court. Advocate Umesh stated that thousands of SSP oustees are now owners of the acquired lands/houses as per 2013 Law Acquisition Act and Government dare not dispossess them.
 
Medha Patkar described the massive violation of the rights of the Gram Sabhas in the constitutionally protected scheduled Adivasi areas. She spoke of the possibilities of and need for a review even at this stage to avert the inhuman pauperization of 2.5 lakh people, for the benefits of corporates. “While displacement and disaster is planned by the State, development and rehabilitation is not” she said and concluded that continuation with the dam would mean a mass atrocity on both Dalits and Adivasis.
 
Soumya Dutta, one of the members of the recent Fact-Finding Committee to the Narmada valley (May, 2015), whose report has received wide attention and even alerted the Judges to the disaster in Narmada moderated the proceedings and shared with the Judicial panel, the findings of his Report co-authored by senior political leaders and experts including Hannan Mollah, Annie Raja, Dr. Sunilam, Raj Kachroo and Benoy Vishwam.
 
Three members of the Tribunals Justice P.C. Jain, Justice Nag Mohan Das and Justice P.D. Gyani visited many villages in five tehsils, including Khalghat, Dharampuri Township as well as village Semalda and village Chhoti Badri, Pipri and Chikalda Kamal Khaparkheda.
The villagers said that there are hundreds of oustees at the resettlement sites where R&R is incomplete as yet. They stated that the claim of the government of MP. that PAFs have been rehabilitated is manifestly false and untrue. The fishermen voiced concerns for the exclusion of fishing rights in the R&R demanding that boats and other things are required to establish new forms/sources of livelihood. In the same way potters claimed their right to allotment of land adjacent to the reservoir.
 
The villagers pointed out that, at the rehabilitated sites provided by government, there are no roads, no water supply or electricity and other facilities of schools, health centres and consequently the affected family are refusing to settle in these incomplete R&R sites. At one place where we had held our meeting a villager pointed out at two houses: on our right side the house will be under submergence and on the left side, the house is outside the submergence area, though they are on the same level and at the distance of 100 ft from each other! Note: (All activities of the visit on 11th September 2015 and proceedings of the Tribunal have been captured on video.).


 
Verdict of the People’s Tribunal
 
The People’s Tribunal has examined the findings of the Fact Finding Committee and has recorded its finding on the basis of evidence produced during visit of the villages of five Tehsils on September 11, 2015 and at the time of holding the sitting of the Tribunal at Rajghat. The Tribunal has come to the conclusion that the findings of the Fact Finding Committee stand corroborated by the Tribunal’s finding. The finding of the Tribunal is based on the actual ground situation and on the basis of the statements made by numerous project affected persons and oustees and landless persons and also further corroborated by the signed representations submitted to the Tribunal at the time of its hearing.
 
False Averments by State and Central Government to the Supreme Court
 
On the basis of the concurrent findings of the FF Team and the Independent People’s Tribunal, the Tribunal has held that "we are of the opinion that the claims of the Central Government and the Governments of Madhya Pradesh(MP), Maharashtra and Gujarat before the Supreme Court that the rehabilitation was fully or substantially completed - is false and the affidavit submitted to support the claim appears to have been prepared to support a false claim; the motive appears to be to create false evidence to obtain a favourable order from the Hon’ble Supreme Court. The petitioners have proved that on the date the impugned order was passed by the Hon’ble Supreme Court, R&R were incomplete in any real or material sense. Hence, the Governments concerned obtained an order for raising the construction height of the dam through this false representation and in gross violation of the Supreme Court direction that construction for raising the dam height can only be pari passu with rehabilitation measures."

It is in violation of this clearly laid down principle of the Supreme Court, that despite R&R of the PAFs affected under 121.92 meters height of the dam, or the R&R of those affected by the back water of MWL not being completed, the Narmada Control Authority (NCA) permitted height increase. There is further violation of the direction that the R&R sub-group would give clearance for further construction only after consulting the three GRAs and also violation of direction that “the three states must implement the award and given R&R to oustees in terms of packages offered by them and with the fully complied with directions of the NCA, GRA and Review Committee”.
 
Besides, there is further violation of the mandate (laid down in judgment 2005(4) SCC 32) to provide cultivable, irrigable, suitable land by offering ex-parte uncultivable/ encroached grazing land and unlawful introduction of the Special Rehabilitation Package (SRP) cash in lieu of land, violation of the mandatory pari passu preconditioned i.e. completion of R&R of all PAFs affected upto 138.68 meters, upto MWL 141.2 meters and BWL of MWL before undertaking construction beyond 121.92 meters and no submergence of any PAF till 6 months after completion of R&R and violation of recommendation of Over Sight Group. In addition to the aforesaid violation there is violation of PESA Act, 1996. Before R&R the Gram Sabhas were not consulted as per Section 4(1) of the Act of 1996.
 
In the light of the above gross violations the clearance granted by the ESG on 1.4.2000, R&R sub-group on 27.6.2013, consent by Former GRA (M.P.) on 26.4.2000 and NCA on 12.6.2014 are legally not tenable or sustainable and consequently require to be set aside and quashed.
 
The representatives of the petitioners represented by Medha Patkar, Soumya Dutta and Meera Narmada strongly urged before us that the order dated June 12, 2014  passed by the NCA is not legally correct. We humbly explained that this Tribunal is an Independent People’s Tribunal, which has no legal sanction behind it and in the legal hierarchy any declaration made by the Apex Court is binding on all legally constituted courts or tribunals and public authorities.  This Tribunal has been constituted by the people of this country for seeking guidance as to what remedy, is available to the PAFs and oustees against the order dated June 12, 2014 and to seek any relief against the orders or directions passed by the court, if any, in violation of mandatory direction issued by the Hon’ble Supreme Court itself or in violation of any statutory law.
 
In the instant matter the dispute arose as the Government of India, Madhya Pradesh and Gujarat had claimed that all project affected families were rehabilitated as per NWDT and the order/ or direction of the Hon’ble Supreme Court and the claim of the Government has been challenged to be false and untrue on the basis of actual facts on the ground. It is thus a case of error apparent on the face of the record and the mistake is of substantial character. Further the order under challenge has been passed in violation of the many orders of the Supreme Court and other instrumentalities of State or its agencies as already discussed above.
 
The mistake or the error even stands admitted as already discussed above or stands proved by the enquiry made by the Fact Finding Committee and by the Independent People’s Tribunal and gets support from the opinion dated October 8, 2009 of the Attorney General of India that approval of the Hon’ble Supreme Court needs to be taken for any construction of the Sardar Sarovar Dam beyond 121.92 metres and further construction of piers and bridge would be fresh construction and cannot be carried out without permission. The error is apparent and there is noncompliance of R&R stands corroborated by the fact that the Hon’ble Court has through its order dated January 16, 2015 and March 13, 2015 directed the GRAs to dispose of all applications and petitions pending before them as early as possible in Narmada Bachao Andolan versus Union of India.

The essential components of land-based rehabilitation for even those recognised as project affected, is not being implemented, with many instances of oustees being compelled to opt between barren/conflict ridden lands or paltry monetary compensation, not resulting in actual purchase of land
 
The Tribunal, therefore, humbly expresses its opinion and advises the petitioners that they may approach the Hon’ble Supreme Court for review of the order dated June 12,2014 under Article 137 of the Constitution of India and pray before the Hon’ble Court that it should to reexamine and determine the rights of the PAFs, oustees, landless persons and other adversely affected persons living in Narmada Valley under Article 21 of the Constitution of India relating to R/R and appropriate relief to which they are entitled be kindly provided in the facts and circumstances of the case as under :-
 
1.   (a)   All PAFs entitled to land and alternative livelihood, house plots affected below 121.92 meters not yet rehabilitated as per NWDTA, R&R Policies of the States and 2002 and 2005 judgments of the Hon’ble Supreme Court as NCA’s Annual Report 2012-13 itself admits that 2143 PAFs under 121.92 meters yet to receive land indicating that 2006 clearance to raise dam beyond 110.64 meters was itself illegal and violative of judgments.
 
The State must therefore undertake the following with due urgency.
 
(b)        To identify and provide cultivable and irrigable lands to about 6000+ oustee families who have been paid compensation or SRG/SRP and reside in the hilly as well as plain villages, with legal rights to land and even GRA orders in their favour, or

(c)        The PAFs who have been paid one meagre installment of this SRP (almost a decade ago) but have not been able to purchase land (they are about 1505 PAFs) and

(d)        PAFs who have been paid both instalments of SRP, but entangled in the fake registry scam under inquiry by the Commission (they are about 2000 PAFs)

(e)        Land Bank and Land Availability: Joint inspections have revealed that Goverment Land Bank is largely comprised of uncultivable/ encroached land and not fit for R&R. Go MP must identify and purchase land for R&R of PAFs.

(f)         Adult Sons: Denial of independent land allotment to adult sons based on a misinterpretation of the Omkareshwar Judgement (2011) despite clear Orders of NCA, GRA, R&R Sub Group. It has now been upheld by the Apex Court vide Order dated 28/9/2015 that the 2005 judgement shall remain applicable for the adult sons of SSP and they have been allotted 5 acres of land each.

(g)        Livelihoods: Failure to provide alternative livelihood based rehabilitation to thousands of landless workers, fisher folk, potters, small shopkeepers, artisans etc. who are only being offered meagre cash compensation instead of alternative livelihoods, fishing rights etc, which was part of the R&R packages, mentioned in the NVDA Action Plan, 1993 and 2000 Judgement.
 
2.   (a)   Non-compliance of GRA Orders: Gross non-compliance of hundreds of orders of the GRA with regard to allotment of cultivable and un-encroached land to single and joint land holders, adult sons, minor, widow and female land holders, encroachers, R&R site affected; payment of interim relief for delay in R&R compensation for land beneath house acquired, fishing rights and recognition of fish workers co-operatives, re-survey of land and houses etc.

(b)        Illegality of Cash Schemes: The Special Rehabilitation Grant (SRG)/ Special Rehabilitation Package (SRP) in lieu of land, cash in lieu of house plots and cash in lieu of livelihood are all in violation of the NWDTA, R&R Policy and Judgments and have not led to actual R&R of the oustees.

(c)        R&R Sites: Inadequate, Sub-standard amenities and no land & livelihood sources at most resettlement sites, as established by the Technical Team of MANIT & IIT, Mumbai appointed by Justice Jha Commission.

(d)        Undeclared PAFs: Hundreds of poor oustees, especially in the hilly tribal and some plain villages not yet declared, despite being affected, due to faulty/ in accurate surveys or even corruption.

(e)        Submergence before rehabilitation: Hundreds of oustees have been facing unlawful submergence of land and/or houses, fishing nets, boats etc. without lawful rehabilitation and compensation, in violation of NWDTA, since 1993-94 and subsequent years upto 2012-13.

(f)        Justice Jha Commission Inquiry: The ongoing inquiry by the M.P. High Court appointed Justice Jha Commission into fake land registries, R&R sites, house plot allotments, livelihood grants and other issues of corruption in R&R of PAFs mostly under 121.92 metres etc. is at a crucial stage and further dam work without consideration of Commission’s report with major R&R implications is unlawful.

(g)        Flawed ATRs: The so-called Action Taken Reports (ATRs) by the Government of MP/ NVDA indicating no balance R&R [‘0’ Balance] are grossly untrue vis-à-vis the field situation of R&R. This was reported by the states of NCA and appeared in the NCA’s Reports from 2008-2011. However, the figure was changed in the Annual Reports of 2011-12 and 2012-13 and NCA recorded that 2,143 PAFs are yet to get land (although 6000+ PAFs are entitled to land in M.P. alone)

(h)        No field verification by NCA: Over the past 15 years, NCA has not undertaken any effective field verification of the land bank available, inadequate amenities at R&R sites, meagre cash grants not leading to land purchase/ livelihood assets, incomplete R&R, legal violations, non-compliance of GRA’s orders etc.

(i)         Limitations of GRA: Out of thousands of oustees, only few are in a position to approach GRA and thousands who have not approached GRA are also not rehabilitated. GRA must verify the village-wise ATRs in the context of NWDTA, R&R Policies, and judgments. GRA also has no powers to monitor and ensure compliance of its own orders

3.   Game of Numbers: Unlawful Reduction in number of PAFs:
The Supreme Court of India, in its judgment noted as to how the Government of Madhya Pradesh (GoMP) resorted to an unlawful Game of Numbers, to artificially refuse the total number of oustees and seek clearance for raise in dam height. The latest Game of Numbers includes:
  • 15,946 PAFs stated to be “out of submergence” due to flawed revision of Back Water Levels, but are likely to face submergence. R&R denied to all these oustees by NCA & GRA.         
  • 4374 PAFs declared as “ineligible” by NDVA, while hundreds out
of this category have been declared as eligible by GRA.
 
4.   R&R of Tapu-affected: Hundreds of oustees whose land would be marooned by the reservoir waters, are being denied of R&R despite clear position of the R&R Sub Group and the NCA that tapu-affected would also be entitled to R&R in Madhya Pradesh.

5.   Maharashtra:
(About 1,200 Adivasi PAFs mostly under 121.92 mts in 33 villages and/or R&R sites yet to be rehabilitated, as we are informed by the representatives of the PAFs.  
Pending R&R of hundreds of tribal PAFs affected under 121.92 metres, having faced submergence, but not yet rehabilitated. Latest Official Joint survey of July, 2014 reveals 791 PAFs in original villages not yet rehabilitated, although this is also an underestimated figure.
Non-attainment of cultivable land and R&R sites with civic amenities for R&R of balance 800 declared and 400 undeclared Adivasi PAFs. Land is claimed to be not available, although efforts have been made by Government of Maharashtra (GoM).
Illegality of the ex parte offers of uncultivable/ encroached land, in violation of NWDTA and GoM’s own mandate and decision dated October 22, 2001 conveyed to NCA.
Illegality of the Special Economic Package (SEP) in the context of the mandate in NWDTA and 2000, 2005 judgments to only allot land.
Issues of the R&R of Tapu affected, forest encroachers, oustees who have faced submergence without land acquisition etc.
Non-compliance with the Orders of the GRA.
Unjustifiability, against the legal mandate, of forwarding cases from GRA to Additional Collector (lower authority) for decision and disposal, delaying the process of R&R of eligible PAFs. Illegality of the decision of the R&R Sub Group and NCA to permit raise dam height despite the clear Opinion of GRA dated August 8, 2012, refusing to grant consent. 

The figure that R&R of only 207 PAFs is pending, as shown by the Government  of Maharashtra is neither final nor correct, considering the joint surveys of the GoM itself.  

1.   Gujarat - (R&R related grievances of a few hundred PAFs affected between 69 metres to 121.92 metres unresolved)
Issues of oustees from different villages of Gujarat, who have not yet received part or full land, house plots and other R&R entitlements or not shifted to R&R sites as per the NWDT provisions, Gujarat R&R policy and various government orders GOs/GRs. (Ex. Village Mukhdi, Vadgam, Gadher, Dumna and Makadkheda).
Issues of PAFs from Gujarat as well as from Maharashtra and Madhya Pradesh resettled in Gujarat, but not yet received cultivable land and amenities at R&R sites and with grievances pending such as bad land not being exchanged, land less than entitlement received, severe water logging, lack of irrigation facilities, non-declaration of eligible oustees etc.
Issues of hundreds of oustees who were promised employment as per the Narmada Oustees Employment Opportunity Rules, 1988 but not given employment.
Questionable process of threatening hundreds of PAFs declared earlier as “wrongly declared” and “ineligible” and threat of reclamation of land and other R&R entitlements granted many years ago. Land of some families has already been taken back.

2.   To enquire into as to what are the social, economic and livelihoods costs of raising the dam height from 121.62 metres. to 138.68 metres. and how do these costs compare with potential benefits from raising the dam height? As Tata Institute of Social Sciences in its study has opined as under:
“It is strongly recommended that the dam height at 121.92 m should not be raised further by installing 17 m high gates which would take the dam height to be 138.68 m, at least until the past obligations are fulfilled, the benefits of 121.92 m are completely realized, and a honest comparative analysis of future costs and benefits is carried out. Such a decision would also ensure that concern on social and ecological impacts are addressed, responsibility for non-compliance is fixed, and violators are penalized.
 
3.   To direct the SSNNL, NCA and the Government of MP, Gujarat and Maharashtra to complete R&R within a period as specified by the Hon’ble Supreme Court.

4.   To appoint a commissioner to make an enquiry and report as to under whose instructions false affidavit was prepared and filed in the Supreme Court for raising the height of the dam up to 138.68 metres. In case it is prima facie proved that affidavit is false then whey a criminal case of conspiracy, forgery and perjury etc. may not be lodged and the wrong doers be not prosecuted and punished in accordance with law after making a probe against NCA for taking a decision to increase the height of the Dam by 17 meters.

5.   The Hon’ble Supreme Court may be requested to redefine the definition of the Project affected persons (as a large number of families facing submergence have not been counted as PAFs and re-determine the amount of compensation in the light of the new Land Acquisition Act and in view of the enormous delay caused in the construction of the dam and the procedure so far followed is not right, just and fair.

On the basis of the concurrent finding the FF Team and Independent People’s Tribunal we are of the opinion that the claims of the Central Government and the Governments of Madhya Pradesh(MP), Maharashtra and Gujarat before the Supreme Court that the rehabilitation was fully or substantially completed - is false and the affidavit submitted to support the claim appears to have been prepared to support a false claim; the motive appears to be to create false evidence to obtain a favourable order from the Hon’ble Supreme Court.

6.   The Government of MP and all agencies be kindly directed to cancel all leases granted for sand mines in the villages affected by the SSP, since as rightly directed by the High Court of Madhya Pradesh, land vested with the NVDA cannot be leased out by the state government, which is in violation of NWDT Award.  

7.   The Tribunal sincerely expresses its grateful thanks to all oustees and PAFs and NBA for reposing confidence in us and we hope that our verdict or report will generate discussion and deeper analysis in the interest of people living in Narmada valley and elsewhere for safeguarding the right to life for all.

8.    We may again reiterate that the Tribunal is fully aware of the fact that its verdict and/or direction are not enforceable. However, we may expect the Governments both Central and State Governments to treat it as recommendation and seek judicial review of the impugned order from the Hon’ble Supreme Court or may make use of it in filing a writ petition before the Hon’ble Supreme Court as there is violation of fundamental rights of the peasants, farmers, labourers and other citizens under Article 14, 19(1)(g) and 21 of the Constitution of India. The action is violating of Article 21 read with Articles 39(a) and 47 and the International Covenant on Economic, Social, Cultural Right and International Covenant on Civil and Political Rights and the 73rd amendment of the Indian Constitution and as all rights are part of human rights are automatically enforceable as if they are domestic laws.
 

In the Judgment of the Supreme Court dated October 18, .2000 (Narmada Bachao Andolan V/s Union of India, 2000(10) SCC 664) – the Hon’ble Supreme Court clearing the construction of Sardar Sarovar Project emphasized that land based rehabilitation is a right of the project affected families and further mandated that rehabilitation shall be done on the “better off” principle. The Hon’ble Supreme Court further while disposing of the case imposed two conditions to be kept in mind (i) the completion of the project at the earliest and (ii) ensuring compliance with the condition of relief and rehabilitation work and taking of ameliorative and compensatory measures for environmental protection in compliance with the scheme framed by the Govt. thereby protecting the rights under Article 21 of the Constitution and keeping these principles in view the court issued the following directions:-

1)   Construction of the dam will continue as per the Award of the Tribunal;

2)   As the Relief and Rehabilitation Sub-group have cleared the construction up to 90 meters, the same can be undertaken immediately. Further, raising of the height will be only pari passu with the implementation of the relief and rehabilitation and on the clearance by the Relief and Rehabilitation Sub-group. The Relief and Rehabilitation Sub-group will give clearance of further construction after consulting the three Grievances Redressal Authorities. The Rehabilitation Master Plan is to be prepared by December 1989;

3)   The Environment Sub-group under the Secretary, Ministry of Environment & Forests, Government of India, will consider and give environmental clearance, at each stage of the construction of the dam before further construction beyond 90 meters can be undertaken.

4)   The permission to raise the dam height beyond 90 meters will be given by the Narmada Control Authority, from time to time, after it obtains the abovementioned clearances from the Relief and Rehabilitation Sub-group and the Environment Sub-group;

5)   The reports of the Grievances Redressal Authorities, and of Madhya Pradesh in particular, shows that there is a considerable slackness in the work of identification of land, acquisition of suitable land and the consequent steps necessary to be taken to rehabilitate the project oustees. We direct the States of Madhya Pradesh, Maharashtra and Gujarat to implement the Award and give relief and rehabilitation to the oustees in terms of the packages offered by them and these states shall comply with any direction in this regard which is given either by NCA or the Review Committee or the Grievance Redressal Authorities;

6)   Even though there has been substantial compliance with the conditions imposed under the environment clearance the NCA and the Environment Sub-group will continue to monitor and ensure that all steps are taken not only to protect but to restore and improve the environment;

7)   The NCA will, within four weeks from today draw up an Action Plan in relation to further construction and the relief and rehabilitation work to be undertaken. Such an Action Plan will fix a time frame so as to ensure relief and rehabilitation pari passu with the increase in the height of the dam. Each State shall abide by the terms of the action plan so prepared by the NCA and in the event of any dispute or difficulty arising, representation may be made to the Review Committee. However, each State shall be bound to comply with the directions of the NCA with regard to the acquisition of land for the purpose of relief and rehabilitation to the extent and within the period specified by the NCA;

8)   The Review Committee shall meet whenever required to do so in the event of their being any un-resolved dispute on an issue which is before the NCA. In any event the Review Committee shall meet at least once in three months so as to oversee the progress of construction of the dam and implementation of the R&R programmes. If for any reason serious differences in implementation of the Award arise and the same cannot be resolved in the Review Committee, the Committee may refer the same to the Prime Minister whose decision, in respect thereof, shall be final and binding on all concerned;

9)   The Grievance Redressal Authorities will be at liberty, in case the need arises, to issue appropriate directions to the respective States for due implementation of the R&R programmes and in case of non-implementation of its directions, the GRAs will be at liberty to approach the Review Committee for appropriate orders;

10)   Every endeavor shall be made to see that the project is completed as expeditiously as possible.
 
Highlights of the judgment of Hon’ble Supreme Court dated 15.3.2005 (2005 (4) SCC 32). A 3-Judge Bench of the Hon’ble Supreme Court delivered another significant order in the Narmada Bachao Andolan case in IA Nos 10, 11 and Ors. wherein it was recorded that in the 2000 Judgment construction of the dam was permitted upto 90 metres on the condition that further raising of the height would be only pari passu with the implementation of resettlement and rehabilitation measures. This Hon’ble Court clearly noted Para 55 that those PAFs who are affected with the raising of dam height at 90 metres “remain affected” by further rising thereof upto 100 metres.

After noting the condition of the river valley of Narmada shaped lie an inverted cone, where area of submergence increases exponentially for each meter of height raised, it was directed that people should be rehabilitated immediately before permitting the dam height to be increased by applying the principle of pari passu. The Hon’ble Court categorically, interalia directed:
  • Allotment of cultivable, irrigable and suitable agricultural land to all the eligible PAFs affected by SSP and their major sons, as per NWDTA.
  • There shall be no distinction between temporary and permanent submergence in so far as R&R is concerned.
  • Referring to the Judgment of 2000, the Hon’ble Court has stated “In view of the dicta of this Court that the oustees would be better off at the rehabilitated place, they should be offered lands which are really cultivable or irrigable.”
Section 7: Entitlements and Violations:
Entitlement
PAF must receive the following entitlements:-
  1. Allotment of a minimum 2 hectares of cultivable and irrigable agricultural land to all those oustees from whom more than 25% land is acquired for the SSP and their adult sons. 
  2. A plot of land measuring 60’x90’ free of cost to oustees in rehabilitation villages.
  3. The rehabilitation village must also have all  civil amenities including Primary School, Panchayat Ghar for every 500 families, village pond for 500 families, drinking water well for every 50 families, access road etc.
  4. In no event shall any area be submerged unless all payments of compensation, expenses and cost are made.
  5. The displaced families must improve their previous standard of living.
  6. Special care would be taken of the families of scheduled castes, scheduled tribes, marginal farmers and small farmers.
  7. The rehabilitation policy be so implemented that middlemen and profiteers would get eliminated.
  8. Rehabilitation be completed six months prior to submergence, leading to vacation of the land / house.
  9. Rise in dam height has been made conditional with “Pari Passu” with rehabilitation measures (2000(10) SCC664) and on clearance by the Relief and Rehabilitation Sub-group.
  10. The land required to be allotted to the tribal is likely to be equal if not better, then what they had own.
  11. Consent of PAFs for rehabilitation is essential.
  12. Land offered in fact should be cultivable and irrigable (2005(4) SCC 32)
  13. The Government should ensure that the allocated land is not encroached upon by the unscrupulous persons.
  14. The GRA is to ensure the complete resettlement and rehabilitation of SSP PAFs.
The Right to compensation of PAFs for illegal submergence prior to rehabilitation

A Mockery of Justice Delivery


 
Justice Panachand Jain
Justice V. D. Gyani
Justice N.K. Modi
Justice Nagamohan Das

Four retired justices of the Supreme Court have expressed grave concerns at the violation of the law by the states of Madhya Pradesh, Gujarat and Maharashtra with the oustees (internally displaced persons) of the Sardar Sarovar project remaining without fair rehabilitation; the Justices have also decried the false information, on rehabilitation, provided by the (three) state and union government(s) to the Supreme Court where matters related to accountability remain pending since 2008
 
“No Submergence without Rehabilitation” is the law as laid down by the Narmada Water Disputes Tribunal (NWDT) Award and upheld by the Supreme Court of India. Despite this, the hasty manner in which the dam height is sought to be raised by 17 metres today threatens the lives of densely populated villages and a township besides threatening to submerge ancient historical sites of the indigenous peoples, the Adivasis.  This decision to raise the height by 17 metres was suddenly taken by the union government on June 12, 2014. At immediate risk is the fair and legally required rehabilitation of a massive 2.5 lakh population (45-48,000 families) of the Sardar Sarovar project, 45,000 of which are in Madhya Pradesh alone.
 
Four retired judges of the higher judiciary, Justice Panachand Jain of the Rajasthan High Court, Justice V. D. Gyani of the Madhya Pradesh High Court, Justice N.K. Modi of the Madhya Pradesh High Court and Justice Nagamohan Das of the Karnataka High Court conducted the IPT at Rajghat, Badwani in Madhya Pradesh on September 11 and 12, 2015. The complete report is available at
https://www.sabrangindia.in/reports/independent-people%E2%80%99s-tribunal-sardar-sarovar-claims-and-realities-development-and
 
Earlier, a Fact-Finding Committee had surveyed the area and recorded detailed findings. The Tribunal verified these Findings in detail. The concerns expressed by the Central Fact Finding  Committee are:
 
  • Thousands of families, especially the Tribals (Adivasis), fisher folk, landless poor who are under the threat of imminent inundation and thus – forcible displacement, are not being given any alternative place to live, as also, alternative land and livelihood sources, in many cases.
  • The essential components of land-based rehabilitation for even those recognised as project affected, is not being implemented, with many instances of oustees being compelled to opt between barren/conflict ridden lands or paltry monetary compensation, not resulting in actual purchase of land. Cultivable, irrigable lands are not located nor purchased by the Government of Madhya Pradesh (MP) and Maharashtra, while Gujarat seems to be refusing identification of land for those who seeking change of these ‘bad’ lands.
  • Several thousands of people whose houses and lands are in actuality, under threat of being submerged – either permanently or periodically during high flood levels, are not even currently being recognised as project affected families/persons.
  • The reported large scale frauds in compensation and rehabilitation, reached such massive proportions that the MP High Court has constituted a Judicial Commission under Justice S.S. Jha (retired), who has been investigating these widespread fraudulent practices, and is slated to submit its report soon. (This report is expected to be out by December 31,2015)
  • The rehabilitation sites chosen/identified by the governments are in extremely poor conditions, having no adequate facilities for people to live there as per the NWDT norms, with poor water supply, broken roads, no electricity, and non-existent or pathetic education and health facilities.
  • The widespread allegations of gross violation of the laws including the Narmada Tribunal Award, orders of the Supreme Court policy provisions on rehabilitation, orders of the Grievance Redressal Authorities (GRA), guarantees by the Land Acquisition Act, 2003, PESA Act, 1996 in the scheduled areas etc.
The members of the Indian People’s Tribunal visited number of villages on September 11, 2015, villages which are affected by the submergence. The Tribunal heard the testimonies of project affected persons/families and oustees on September 12, 2015 in the presence of about 10,000 oustees of the Sardar Sarovar Dam. The deponents before Tribunal included representatives of the Adivasis from the hilly and plain areas, other farmers who have been entangled in the fake registries scam and who have received meagre cash and denied land, or given land from the land bank, landless oustees, including fish workers, potters, boatmen, small traders etc. Oustees from Maharashtra and Gujarat also expressed their concern and pointed out various violations of the Award. The tribunal held its hearing on the Narmada river bank at Rajghat for five hours and each oustee / deponent stood in the ‘dock’, to make their statements. The following persons deposed:

Devram Kanera, Kailash Awasya, Gokaru Bhilala, Shanta Yadav, Sanobar B Mansuri, Bhagirath Dhangar, Mohan Patidar, Pemal Bahan, Madu Kahar, Sawa Bahan, Ramesh Prajapati, Rahul Yadav, Dayaram Bhai, Mahesh Patel, Hari Bhai, Jagdish Patidar, Mukesh Bhagoria, Ad Umesh Patidar. The deponents from Maharashtra were Noorji Padwi, Punya Bhai, Yogini Khanolkar and from Gujarat deponents were Shankar Kagda, Lakhan Musaphir, Chintamani Bhai, all representing project affected families (PAFs).

A People’s Tribunal headed by four retired judges of India’s higher judiciary has decried the false information, on rehabilitation, provided by the (three) state and union government(s) to the Supreme Court where matters related to accountability remain pending since 2008
 
Bhagirath Dhangar spoke of the plight of hundreds of farmers, workers, small traders, shopkeepers, hawkers etc. whose lands and livelihoods are to be lost by the dam increase, with no alternative Relief & Rehabilitation (R & R) in sight. He questioned the fact that, if the balance is indeed ‘0’, then how is it that the government fair price shops, panchayats, voting and even government licensed wine shops are functioning here? Mahesh Patel exposed the fraud in the name of back water levels due to which 16,000 families has been declared “out of submergence”. He said that all these unscientific claims would be blown up by Narmada herself and her fury into which 99 tributaries and 999 large drains flow. Fish worker families represented by Savabai (Pichhodi) & Madubhai (Chikalda) demanded fishing rights in the reservoir and alternative livelihood. They said that fishing and riverine rights cannot be compensated in monetary terms.
 
Karan Yadav from Pipri read out the message from Ramesh Patel, the MLA of Badwani, admitting that governmental reports of R&R are patently false and that 99% oustees, still reside in the original villages awaiting R&R; which means that there has been no real rehabilitation at all. Patel submitted a written demand to the Tribunal that the SSP gates should not be installed at this stage, without completion of R&R, as per law. Meera spoke of the absolute failure and connivance of the elaborate machinery of monitoring and project authorities in complying with the Supreme Court’s orders and demanded that all the clearances granted by the authorities are unlawful and need to be set aside by the Apex Court. Advocate Umesh stated that thousands of SSP oustees are now owners of the acquired lands/houses as per 2013 Law Acquisition Act and Government dare not dispossess them.
 
Medha Patkar described the massive violation of the rights of the Gram Sabhas in the constitutionally protected scheduled Adivasi areas. She spoke of the possibilities of and need for a review even at this stage to avert the inhuman pauperization of 2.5 lakh people, for the benefits of corporates. “While displacement and disaster is planned by the State, development and rehabilitation is not” she said and concluded that continuation with the dam would mean a mass atrocity on both Dalits and Adivasis.
 
Soumya Dutta, one of the members of the recent Fact-Finding Committee to the Narmada valley (May, 2015), whose report has received wide attention and even alerted the Judges to the disaster in Narmada moderated the proceedings and shared with the Judicial panel, the findings of his Report co-authored by senior political leaders and experts including Hannan Mollah, Annie Raja, Dr. Sunilam, Raj Kachroo and Benoy Vishwam.
 
Three members of the Tribunals Justice P.C. Jain, Justice Nag Mohan Das and Justice P.D. Gyani visited many villages in five tehsils, including Khalghat, Dharampuri Township as well as village Semalda and village Chhoti Badri, Pipri and Chikalda Kamal Khaparkheda.
The villagers said that there are hundreds of oustees at the resettlement sites where R&R is incomplete as yet. They stated that the claim of the government of MP. that PAFs have been rehabilitated is manifestly false and untrue. The fishermen voiced concerns for the exclusion of fishing rights in the R&R demanding that boats and other things are required to establish new forms/sources of livelihood. In the same way potters claimed their right to allotment of land adjacent to the reservoir.
 
The villagers pointed out that, at the rehabilitated sites provided by government, there are no roads, no water supply or electricity and other facilities of schools, health centres and consequently the affected family are refusing to settle in these incomplete R&R sites. At one place where we had held our meeting a villager pointed out at two houses: on our right side the house will be under submergence and on the left side, the house is outside the submergence area, though they are on the same level and at the distance of 100 ft from each other! Note: (All activities of the visit on 11th September 2015 and proceedings of the Tribunal have been captured on video.).


 
Verdict of the People’s Tribunal
 
The People’s Tribunal has examined the findings of the Fact Finding Committee and has recorded its finding on the basis of evidence produced during visit of the villages of five Tehsils on September 11, 2015 and at the time of holding the sitting of the Tribunal at Rajghat. The Tribunal has come to the conclusion that the findings of the Fact Finding Committee stand corroborated by the Tribunal’s finding. The finding of the Tribunal is based on the actual ground situation and on the basis of the statements made by numerous project affected persons and oustees and landless persons and also further corroborated by the signed representations submitted to the Tribunal at the time of its hearing.
 
False Averments by State and Central Government to the Supreme Court
 
On the basis of the concurrent findings of the FF Team and the Independent People’s Tribunal, the Tribunal has held that "we are of the opinion that the claims of the Central Government and the Governments of Madhya Pradesh(MP), Maharashtra and Gujarat before the Supreme Court that the rehabilitation was fully or substantially completed - is false and the affidavit submitted to support the claim appears to have been prepared to support a false claim; the motive appears to be to create false evidence to obtain a favourable order from the Hon’ble Supreme Court. The petitioners have proved that on the date the impugned order was passed by the Hon’ble Supreme Court, R&R were incomplete in any real or material sense. Hence, the Governments concerned obtained an order for raising the construction height of the dam through this false representation and in gross violation of the Supreme Court direction that construction for raising the dam height can only be pari passu with rehabilitation measures."

It is in violation of this clearly laid down principle of the Supreme Court, that despite R&R of the PAFs affected under 121.92 meters height of the dam, or the R&R of those affected by the back water of MWL not being completed, the Narmada Control Authority (NCA) permitted height increase. There is further violation of the direction that the R&R sub-group would give clearance for further construction only after consulting the three GRAs and also violation of direction that “the three states must implement the award and given R&R to oustees in terms of packages offered by them and with the fully complied with directions of the NCA, GRA and Review Committee”.
 
Besides, there is further violation of the mandate (laid down in judgment 2005(4) SCC 32) to provide cultivable, irrigable, suitable land by offering ex-parte uncultivable/ encroached grazing land and unlawful introduction of the Special Rehabilitation Package (SRP) cash in lieu of land, violation of the mandatory pari passu preconditioned i.e. completion of R&R of all PAFs affected upto 138.68 meters, upto MWL 141.2 meters and BWL of MWL before undertaking construction beyond 121.92 meters and no submergence of any PAF till 6 months after completion of R&R and violation of recommendation of Over Sight Group. In addition to the aforesaid violation there is violation of PESA Act, 1996. Before R&R the Gram Sabhas were not consulted as per Section 4(1) of the Act of 1996.
 
In the light of the above gross violations the clearance granted by the ESG on 1.4.2000, R&R sub-group on 27.6.2013, consent by Former GRA (M.P.) on 26.4.2000 and NCA on 12.6.2014 are legally not tenable or sustainable and consequently require to be set aside and quashed.
 
The representatives of the petitioners represented by Medha Patkar, Soumya Dutta and Meera Narmada strongly urged before us that the order dated June 12, 2014  passed by the NCA is not legally correct. We humbly explained that this Tribunal is an Independent People’s Tribunal, which has no legal sanction behind it and in the legal hierarchy any declaration made by the Apex Court is binding on all legally constituted courts or tribunals and public authorities.  This Tribunal has been constituted by the people of this country for seeking guidance as to what remedy, is available to the PAFs and oustees against the order dated June 12, 2014 and to seek any relief against the orders or directions passed by the court, if any, in violation of mandatory direction issued by the Hon’ble Supreme Court itself or in violation of any statutory law.
 
In the instant matter the dispute arose as the Government of India, Madhya Pradesh and Gujarat had claimed that all project affected families were rehabilitated as per NWDT and the order/ or direction of the Hon’ble Supreme Court and the claim of the Government has been challenged to be false and untrue on the basis of actual facts on the ground. It is thus a case of error apparent on the face of the record and the mistake is of substantial character. Further the order under challenge has been passed in violation of the many orders of the Supreme Court and other instrumentalities of State or its agencies as already discussed above.
 
The mistake or the error even stands admitted as already discussed above or stands proved by the enquiry made by the Fact Finding Committee and by the Independent People’s Tribunal and gets support from the opinion dated October 8, 2009 of the Attorney General of India that approval of the Hon’ble Supreme Court needs to be taken for any construction of the Sardar Sarovar Dam beyond 121.92 metres and further construction of piers and bridge would be fresh construction and cannot be carried out without permission. The error is apparent and there is noncompliance of R&R stands corroborated by the fact that the Hon’ble Court has through its order dated January 16, 2015 and March 13, 2015 directed the GRAs to dispose of all applications and petitions pending before them as early as possible in Narmada Bachao Andolan versus Union of India.

The essential components of land-based rehabilitation for even those recognised as project affected, is not being implemented, with many instances of oustees being compelled to opt between barren/conflict ridden lands or paltry monetary compensation, not resulting in actual purchase of land
 
The Tribunal, therefore, humbly expresses its opinion and advises the petitioners that they may approach the Hon’ble Supreme Court for review of the order dated June 12,2014 under Article 137 of the Constitution of India and pray before the Hon’ble Court that it should to reexamine and determine the rights of the PAFs, oustees, landless persons and other adversely affected persons living in Narmada Valley under Article 21 of the Constitution of India relating to R/R and appropriate relief to which they are entitled be kindly provided in the facts and circumstances of the case as under :-
 
1.   (a)   All PAFs entitled to land and alternative livelihood, house plots affected below 121.92 meters not yet rehabilitated as per NWDTA, R&R Policies of the States and 2002 and 2005 judgments of the Hon’ble Supreme Court as NCA’s Annual Report 2012-13 itself admits that 2143 PAFs under 121.92 meters yet to receive land indicating that 2006 clearance to raise dam beyond 110.64 meters was itself illegal and violative of judgments.
 
The State must therefore undertake the following with due urgency.
 
(b)        To identify and provide cultivable and irrigable lands to about 6000+ oustee families who have been paid compensation or SRG/SRP and reside in the hilly as well as plain villages, with legal rights to land and even GRA orders in their favour, or

(c)        The PAFs who have been paid one meagre installment of this SRP (almost a decade ago) but have not been able to purchase land (they are about 1505 PAFs) and

(d)        PAFs who have been paid both instalments of SRP, but entangled in the fake registry scam under inquiry by the Commission (they are about 2000 PAFs)

(e)        Land Bank and Land Availability: Joint inspections have revealed that Goverment Land Bank is largely comprised of uncultivable/ encroached land and not fit for R&R. Go MP must identify and purchase land for R&R of PAFs.

(f)         Adult Sons: Denial of independent land allotment to adult sons based on a misinterpretation of the Omkareshwar Judgement (2011) despite clear Orders of NCA, GRA, R&R Sub Group. It has now been upheld by the Apex Court vide Order dated 28/9/2015 that the 2005 judgement shall remain applicable for the adult sons of SSP and they have been allotted 5 acres of land each.

(g)        Livelihoods: Failure to provide alternative livelihood based rehabilitation to thousands of landless workers, fisher folk, potters, small shopkeepers, artisans etc. who are only being offered meagre cash compensation instead of alternative livelihoods, fishing rights etc, which was part of the R&R packages, mentioned in the NVDA Action Plan, 1993 and 2000 Judgement.
 
2.   (a)   Non-compliance of GRA Orders: Gross non-compliance of hundreds of orders of the GRA with regard to allotment of cultivable and un-encroached land to single and joint land holders, adult sons, minor, widow and female land holders, encroachers, R&R site affected; payment of interim relief for delay in R&R compensation for land beneath house acquired, fishing rights and recognition of fish workers co-operatives, re-survey of land and houses etc.

(b)        Illegality of Cash Schemes: The Special Rehabilitation Grant (SRG)/ Special Rehabilitation Package (SRP) in lieu of land, cash in lieu of house plots and cash in lieu of livelihood are all in violation of the NWDTA, R&R Policy and Judgments and have not led to actual R&R of the oustees.

(c)        R&R Sites: Inadequate, Sub-standard amenities and no land & livelihood sources at most resettlement sites, as established by the Technical Team of MANIT & IIT, Mumbai appointed by Justice Jha Commission.

(d)        Undeclared PAFs: Hundreds of poor oustees, especially in the hilly tribal and some plain villages not yet declared, despite being affected, due to faulty/ in accurate surveys or even corruption.

(e)        Submergence before rehabilitation: Hundreds of oustees have been facing unlawful submergence of land and/or houses, fishing nets, boats etc. without lawful rehabilitation and compensation, in violation of NWDTA, since 1993-94 and subsequent years upto 2012-13.

(f)        Justice Jha Commission Inquiry: The ongoing inquiry by the M.P. High Court appointed Justice Jha Commission into fake land registries, R&R sites, house plot allotments, livelihood grants and other issues of corruption in R&R of PAFs mostly under 121.92 metres etc. is at a crucial stage and further dam work without consideration of Commission’s report with major R&R implications is unlawful.

(g)        Flawed ATRs: The so-called Action Taken Reports (ATRs) by the Government of MP/ NVDA indicating no balance R&R [‘0’ Balance] are grossly untrue vis-à-vis the field situation of R&R. This was reported by the states of NCA and appeared in the NCA’s Reports from 2008-2011. However, the figure was changed in the Annual Reports of 2011-12 and 2012-13 and NCA recorded that 2,143 PAFs are yet to get land (although 6000+ PAFs are entitled to land in M.P. alone)

(h)        No field verification by NCA: Over the past 15 years, NCA has not undertaken any effective field verification of the land bank available, inadequate amenities at R&R sites, meagre cash grants not leading to land purchase/ livelihood assets, incomplete R&R, legal violations, non-compliance of GRA’s orders etc.

(i)         Limitations of GRA: Out of thousands of oustees, only few are in a position to approach GRA and thousands who have not approached GRA are also not rehabilitated. GRA must verify the village-wise ATRs in the context of NWDTA, R&R Policies, and judgments. GRA also has no powers to monitor and ensure compliance of its own orders

3.   Game of Numbers: Unlawful Reduction in number of PAFs:
The Supreme Court of India, in its judgment noted as to how the Government of Madhya Pradesh (GoMP) resorted to an unlawful Game of Numbers, to artificially refuse the total number of oustees and seek clearance for raise in dam height. The latest Game of Numbers includes:
  • 15,946 PAFs stated to be “out of submergence” due to flawed revision of Back Water Levels, but are likely to face submergence. R&R denied to all these oustees by NCA & GRA.         
  • 4374 PAFs declared as “ineligible” by NDVA, while hundreds out
of this category have been declared as eligible by GRA.
 
4.   R&R of Tapu-affected: Hundreds of oustees whose land would be marooned by the reservoir waters, are being denied of R&R despite clear position of the R&R Sub Group and the NCA that tapu-affected would also be entitled to R&R in Madhya Pradesh.

5.   Maharashtra:
(About 1,200 Adivasi PAFs mostly under 121.92 mts in 33 villages and/or R&R sites yet to be rehabilitated, as we are informed by the representatives of the PAFs.  
Pending R&R of hundreds of tribal PAFs affected under 121.92 metres, having faced submergence, but not yet rehabilitated. Latest Official Joint survey of July, 2014 reveals 791 PAFs in original villages not yet rehabilitated, although this is also an underestimated figure.
Non-attainment of cultivable land and R&R sites with civic amenities for R&R of balance 800 declared and 400 undeclared Adivasi PAFs. Land is claimed to be not available, although efforts have been made by Government of Maharashtra (GoM).
Illegality of the ex parte offers of uncultivable/ encroached land, in violation of NWDTA and GoM’s own mandate and decision dated October 22, 2001 conveyed to NCA.
Illegality of the Special Economic Package (SEP) in the context of the mandate in NWDTA and 2000, 2005 judgments to only allot land.
Issues of the R&R of Tapu affected, forest encroachers, oustees who have faced submergence without land acquisition etc.
Non-compliance with the Orders of the GRA.
Unjustifiability, against the legal mandate, of forwarding cases from GRA to Additional Collector (lower authority) for decision and disposal, delaying the process of R&R of eligible PAFs. Illegality of the decision of the R&R Sub Group and NCA to permit raise dam height despite the clear Opinion of GRA dated August 8, 2012, refusing to grant consent. 

The figure that R&R of only 207 PAFs is pending, as shown by the Government  of Maharashtra is neither final nor correct, considering the joint surveys of the GoM itself.  

1.   Gujarat - (R&R related grievances of a few hundred PAFs affected between 69 metres to 121.92 metres unresolved)
Issues of oustees from different villages of Gujarat, who have not yet received part or full land, house plots and other R&R entitlements or not shifted to R&R sites as per the NWDT provisions, Gujarat R&R policy and various government orders GOs/GRs. (Ex. Village Mukhdi, Vadgam, Gadher, Dumna and Makadkheda).
Issues of PAFs from Gujarat as well as from Maharashtra and Madhya Pradesh resettled in Gujarat, but not yet received cultivable land and amenities at R&R sites and with grievances pending such as bad land not being exchanged, land less than entitlement received, severe water logging, lack of irrigation facilities, non-declaration of eligible oustees etc.
Issues of hundreds of oustees who were promised employment as per the Narmada Oustees Employment Opportunity Rules, 1988 but not given employment.
Questionable process of threatening hundreds of PAFs declared earlier as “wrongly declared” and “ineligible” and threat of reclamation of land and other R&R entitlements granted many years ago. Land of some families has already been taken back.

2.   To enquire into as to what are the social, economic and livelihoods costs of raising the dam height from 121.62 metres. to 138.68 metres. and how do these costs compare with potential benefits from raising the dam height? As Tata Institute of Social Sciences in its study has opined as under:
“It is strongly recommended that the dam height at 121.92 m should not be raised further by installing 17 m high gates which would take the dam height to be 138.68 m, at least until the past obligations are fulfilled, the benefits of 121.92 m are completely realized, and a honest comparative analysis of future costs and benefits is carried out. Such a decision would also ensure that concern on social and ecological impacts are addressed, responsibility for non-compliance is fixed, and violators are penalized.
 
3.   To direct the SSNNL, NCA and the Government of MP, Gujarat and Maharashtra to complete R&R within a period as specified by the Hon’ble Supreme Court.

4.   To appoint a commissioner to make an enquiry and report as to under whose instructions false affidavit was prepared and filed in the Supreme Court for raising the height of the dam up to 138.68 metres. In case it is prima facie proved that affidavit is false then whey a criminal case of conspiracy, forgery and perjury etc. may not be lodged and the wrong doers be not prosecuted and punished in accordance with law after making a probe against NCA for taking a decision to increase the height of the Dam by 17 meters.

5.   The Hon’ble Supreme Court may be requested to redefine the definition of the Project affected persons (as a large number of families facing submergence have not been counted as PAFs and re-determine the amount of compensation in the light of the new Land Acquisition Act and in view of the enormous delay caused in the construction of the dam and the procedure so far followed is not right, just and fair.

On the basis of the concurrent finding the FF Team and Independent People’s Tribunal we are of the opinion that the claims of the Central Government and the Governments of Madhya Pradesh(MP), Maharashtra and Gujarat before the Supreme Court that the rehabilitation was fully or substantially completed - is false and the affidavit submitted to support the claim appears to have been prepared to support a false claim; the motive appears to be to create false evidence to obtain a favourable order from the Hon’ble Supreme Court.

6.   The Government of MP and all agencies be kindly directed to cancel all leases granted for sand mines in the villages affected by the SSP, since as rightly directed by the High Court of Madhya Pradesh, land vested with the NVDA cannot be leased out by the state government, which is in violation of NWDT Award.  

7.   The Tribunal sincerely expresses its grateful thanks to all oustees and PAFs and NBA for reposing confidence in us and we hope that our verdict or report will generate discussion and deeper analysis in the interest of people living in Narmada valley and elsewhere for safeguarding the right to life for all.

8.    We may again reiterate that the Tribunal is fully aware of the fact that its verdict and/or direction are not enforceable. However, we may expect the Governments both Central and State Governments to treat it as recommendation and seek judicial review of the impugned order from the Hon’ble Supreme Court or may make use of it in filing a writ petition before the Hon’ble Supreme Court as there is violation of fundamental rights of the peasants, farmers, labourers and other citizens under Article 14, 19(1)(g) and 21 of the Constitution of India. The action is violating of Article 21 read with Articles 39(a) and 47 and the International Covenant on Economic, Social, Cultural Right and International Covenant on Civil and Political Rights and the 73rd amendment of the Indian Constitution and as all rights are part of human rights are automatically enforceable as if they are domestic laws.
 

In the Judgment of the Supreme Court dated October 18, .2000 (Narmada Bachao Andolan V/s Union of India, 2000(10) SCC 664) – the Hon’ble Supreme Court clearing the construction of Sardar Sarovar Project emphasized that land based rehabilitation is a right of the project affected families and further mandated that rehabilitation shall be done on the “better off” principle. The Hon’ble Supreme Court further while disposing of the case imposed two conditions to be kept in mind (i) the completion of the project at the earliest and (ii) ensuring compliance with the condition of relief and rehabilitation work and taking of ameliorative and compensatory measures for environmental protection in compliance with the scheme framed by the Govt. thereby protecting the rights under Article 21 of the Constitution and keeping these principles in view the court issued the following directions:-

1)   Construction of the dam will continue as per the Award of the Tribunal;

2)   As the Relief and Rehabilitation Sub-group have cleared the construction up to 90 meters, the same can be undertaken immediately. Further, raising of the height will be only pari passu with the implementation of the relief and rehabilitation and on the clearance by the Relief and Rehabilitation Sub-group. The Relief and Rehabilitation Sub-group will give clearance of further construction after consulting the three Grievances Redressal Authorities. The Rehabilitation Master Plan is to be prepared by December 1989;

3)   The Environment Sub-group under the Secretary, Ministry of Environment & Forests, Government of India, will consider and give environmental clearance, at each stage of the construction of the dam before further construction beyond 90 meters can be undertaken.

4)   The permission to raise the dam height beyond 90 meters will be given by the Narmada Control Authority, from time to time, after it obtains the abovementioned clearances from the Relief and Rehabilitation Sub-group and the Environment Sub-group;

5)   The reports of the Grievances Redressal Authorities, and of Madhya Pradesh in particular, shows that there is a considerable slackness in the work of identification of land, acquisition of suitable land and the consequent steps necessary to be taken to rehabilitate the project oustees. We direct the States of Madhya Pradesh, Maharashtra and Gujarat to implement the Award and give relief and rehabilitation to the oustees in terms of the packages offered by them and these states shall comply with any direction in this regard which is given either by NCA or the Review Committee or the Grievance Redressal Authorities;

6)   Even though there has been substantial compliance with the conditions imposed under the environment clearance the NCA and the Environment Sub-group will continue to monitor and ensure that all steps are taken not only to protect but to restore and improve the environment;

7)   The NCA will, within four weeks from today draw up an Action Plan in relation to further construction and the relief and rehabilitation work to be undertaken. Such an Action Plan will fix a time frame so as to ensure relief and rehabilitation pari passu with the increase in the height of the dam. Each State shall abide by the terms of the action plan so prepared by the NCA and in the event of any dispute or difficulty arising, representation may be made to the Review Committee. However, each State shall be bound to comply with the directions of the NCA with regard to the acquisition of land for the purpose of relief and rehabilitation to the extent and within the period specified by the NCA;

8)   The Review Committee shall meet whenever required to do so in the event of their being any un-resolved dispute on an issue which is before the NCA. In any event the Review Committee shall meet at least once in three months so as to oversee the progress of construction of the dam and implementation of the R&R programmes. If for any reason serious differences in implementation of the Award arise and the same cannot be resolved in the Review Committee, the Committee may refer the same to the Prime Minister whose decision, in respect thereof, shall be final and binding on all concerned;

9)   The Grievance Redressal Authorities will be at liberty, in case the need arises, to issue appropriate directions to the respective States for due implementation of the R&R programmes and in case of non-implementation of its directions, the GRAs will be at liberty to approach the Review Committee for appropriate orders;

10)   Every endeavor shall be made to see that the project is completed as expeditiously as possible.
 
Highlights of the judgment of Hon’ble Supreme Court dated 15.3.2005 (2005 (4) SCC 32). A 3-Judge Bench of the Hon’ble Supreme Court delivered another significant order in the Narmada Bachao Andolan case in IA Nos 10, 11 and Ors. wherein it was recorded that in the 2000 Judgment construction of the dam was permitted upto 90 metres on the condition that further raising of the height would be only pari passu with the implementation of resettlement and rehabilitation measures. This Hon’ble Court clearly noted Para 55 that those PAFs who are affected with the raising of dam height at 90 metres “remain affected” by further rising thereof upto 100 metres.

After noting the condition of the river valley of Narmada shaped lie an inverted cone, where area of submergence increases exponentially for each meter of height raised, it was directed that people should be rehabilitated immediately before permitting the dam height to be increased by applying the principle of pari passu. The Hon’ble Court categorically, interalia directed:
  • Allotment of cultivable, irrigable and suitable agricultural land to all the eligible PAFs affected by SSP and their major sons, as per NWDTA.
  • There shall be no distinction between temporary and permanent submergence in so far as R&R is concerned.
  • Referring to the Judgment of 2000, the Hon’ble Court has stated “In view of the dicta of this Court that the oustees would be better off at the rehabilitated place, they should be offered lands which are really cultivable or irrigable.”
Section 7: Entitlements and Violations:
Entitlement
PAF must receive the following entitlements:-
  1. Allotment of a minimum 2 hectares of cultivable and irrigable agricultural land to all those oustees from whom more than 25% land is acquired for the SSP and their adult sons. 
  2. A plot of land measuring 60’x90’ free of cost to oustees in rehabilitation villages.
  3. The rehabilitation village must also have all  civil amenities including Primary School, Panchayat Ghar for every 500 families, village pond for 500 families, drinking water well for every 50 families, access road etc.
  4. In no event shall any area be submerged unless all payments of compensation, expenses and cost are made.
  5. The displaced families must improve their previous standard of living.
  6. Special care would be taken of the families of scheduled castes, scheduled tribes, marginal farmers and small farmers.
  7. The rehabilitation policy be so implemented that middlemen and profiteers would get eliminated.
  8. Rehabilitation be completed six months prior to submergence, leading to vacation of the land / house.
  9. Rise in dam height has been made conditional with “Pari Passu” with rehabilitation measures (2000(10) SCC664) and on clearance by the Relief and Rehabilitation Sub-group.
  10. The land required to be allotted to the tribal is likely to be equal if not better, then what they had own.
  11. Consent of PAFs for rehabilitation is essential.
  12. Land offered in fact should be cultivable and irrigable (2005(4) SCC 32)
  13. The Government should ensure that the allocated land is not encroached upon by the unscrupulous persons.
  14. The GRA is to ensure the complete resettlement and rehabilitation of SSP PAFs.
The Right to compensation of PAFs for illegal submergence prior to rehabilitation

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