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The Inter- State Water Disputes Act, 1956
Article 21 in The Constitution Of India 1949
Section 4 in The Inter- State Water Disputes Act, 1956
Article 12 in The Constitution Of India 1949
Section 5(3) in The Inter- State Water Disputes Act, 1956

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Central India Law Quarterly
Narmada Bachao Andolan Vs. Union Of India A.I.R 2000 S. C. 3751 - A Study
NARMADA BACHAO ANDOLAN VS. UNION OF INDIA A.I.R 2000 S. C. 3751 - A STUDY *Smt. Geeta Shrivastava **Ku. Shubhra Kochar Narmada is the fifth longest river in India and largest west flowing river of the Indian peninsula. Originating from the Maikala ranges at Amarkantak in MP. it flows Westward over the length of 1312 kms before flowing into the Gulf of Cambay. TIle first 1077 kms stretch lies in MP. and the next 35 kms stretch of the river forms the boundary between MP and Maharastra. The next 39 kms tonus the boundary between Maharastraand Gujarat and the last stretch of 161 kms lies in Gujarat. The Indian agricultural society is based on the irrigation from the rivers and rain. In 1946. the government of Central Provinces and Berar and the government of Bombay requested the Central Waterways. Irrigation. and Navigation Commission (C.W.I.N.C.) to take up investigation on the Narmada river system. It's objective was to devise a plan for basin wise development of the river with flood control. irrigation. power and extension of navigation. A Committee was formulated to study the matter. The study commenced in 1947 and in 1948, under a committee headed by Shri A. N. Khosla. Chairman (c. W.I.N.C.). The Khosla Committee 2. The committee started its study on the river in the year 1947. After a tedious evaluation of the river basin by the engineers and * Principal. Central India Law Institute. Associate Editor Central India Law Quarterly. Life member Central India Law Quarterly, Jabalpur. ** Advocate M.P. High Court, Jabalpur. 102 CENTRAL INDIA LAW Qt~. 2004 geologists the committee recommended a detailed investigation for seven projects. In 1948, the Central Ministry of Works, Mines and Power appointed an Ad-hoc Committee headed by Shri A. N. Khosla, Chairman, CWINC to study the projects and to recommend the priorities. The following projects were recommended keeping in view the availability of men, materials and resources. 1. Bargi Project 2. Tawa Projects near Hoshangabad 3. Punasa Project and 4. Broach Project The Government of India sanctioned funds for the above- mentioned projects in March 1949. The Central Water & Power Commission carried out a study of the hydroelectric potential of the Narmada basin in the year 1955. After the Central Water & Power Commission carried out the investigations, the Navagam site was finally decided upon in consultation with the erstwhile Government of Bombay for the construction of the dam and forwarded the recommendations. At that the implementation was contemplated to be in two stages. In Stage-I, the Full Reservoir Level (hereinafter referred to as 'FRL') was restricted to 160 ft with provision for winder foundations to enable raising of the dam to 300ft. In Stage II, a high .level . canal was to be constructed. However, the Bombay Government suggested two modifications, first the FRL of the dam be raised from 300 to 320 ft. and second the provision of a powerhouse in the riverbed and a powerhouse at the head of the level canal be also made. Vol. XVII NARMADA BACHAO ANDOLAN 103 The panel of Consultants appointed by the Ministry of Irrigation and Power reviewed the report in 1960 and suggested that the two stages of the Navagam dam as proposed should be combined into one and the dam be constructed to its final FRL 320 ft. in one stage only. The Consultants also stated was a further scope for extending irrigation from the high lev~l canal towards the Rann of Kutch. When the stage of Gujarat was founded on 1st May 1960, the Narmada Project .stood transferred to the state. Accordingly, the Government of Gujarat gave an administrative approval to Stage-I of the Narmada Project in February 1961. The preliminary works such as approach roads & bridges, colonies, staff buildings and remaining investigations for dam foundations were soon taken up. The Bhopal Agreement 3. In November 1963. the Union Minister of Irrigation and Power held a meeting with the Chief Ministers of Gujarat arid Madhya Pradesh at Bhopal. As a result of the discussions and exchange of views, an agreement (Bhopal Agreement) was arrived. Stating that the Navagam Dam be built to FRL 425 by the Government of c Gujarat and enjoy its entire benefits. Secondly the Punasa Dam (Madhya Pradesh) should be built to FRL 850 such that the costs and benefits are shared in the ratio 1:2 between the Government of Gujarat and Madhya Pradesh. However, out of the power available to Madhya Pradesh half of the quantum was to be given to the State of Maharashtra for a period of 25 years for which the State of Maharashtra was to provide a loan to the extent of one-third the cost ofPunasa Dam. The loan to be given by the State of Maharashtra was to be returned within a period of 25 years. Thirdly 104 CENTRAL INOlA LAW Q.y. 2004 the Bargi Project be implemented by the State of Madhya Pradesh. Bargi Dam was to be FRL 1365 in Stage I and fRL 1390 in stage II and the Government of Gujarat were to give a total loan assistance of Rs. 10 crores for the same. Master Plan for the development of the Narmada Basin 4. In order to fulfil the requirements of the Bhopal Agreement, a brief report was formulated by the Government of Gujarat envisaging the Navagam Dam FRL 425 1'1. and submitted the same to the Central Water and Power Commission under Gijarat Government's letter dated 14th February, )984. Madhya Pradesh. however, did not ratify the Bhopal Agreement. In order to overcome the statement following the rejection of the Bhopal Agreement by Madhya Pradesh. a High Level Committee of eminent engineers headed by Dr. A. N. Khosla. the then Governor of Orissa. was constituted on 51h September. 1964 by the Government. of India. The Government of India after consulting the related state' s referred the following points to the committee. i) Drawing up of a Master plan for the optimum and integrated development of the Narmada water resources. ii) Phasing of its implementation for maximum development of the resources and other benefits. iii) The examination. in particular of Navagam and alternative projects. if any and determining the optimum reservoir revel or levels. iv) Making recommendations of any other ancillary matters. The Khosla Committee submitted the unanimous report to the Government of India in September 1965 and recommended a Vol. XVII "ARMADA BACI-IAO ANDOLAN Master plan of the Narmada Water Development. In Chapter XI of the Report. the Khosla Committee outlined its approach to the plan of Narmada Development. The Committee finally decided that the plan should be such that it fulfilled the necessary restrictions: (a) The plan should not against the National interest: (b) The fights of all the related states should be protected. (c) More stress should be given on irrigation without reducing the power generation. (d) The quantum of irrigated land should be raised so that even the arid and dry areas could be made habitable; and (e) Maximum utilization of water was to be achieved so that all the water entering the sea without any proper use could be reduced. The Master Plan recommended by the Khosla Committee envisaged 12 major projects to be taken up in Madhya Pradesh and one, viz .. Navagam in Gujarat. However, the Khosla Committee report could not be implemented on account of disagreement among the Stage. On 6th July. 1968 the State of Gujarat made a complaint to the Government of India under Section 3 of the Inter-State Water Disputes Act. 1956. It stated a water dispute had arisen between the State of Gujarat and the Respondent States of Madhya Pradesh and Maharashtra over the use, distribution and control of the waters of the Inter-State River Narmada. it was alleged that executive action had been taken by Maharashtra and Madhya Pradesh. prejudicially affecting the State 106 CENTRAL INDIA LAW Q'!I. 2004 of Gujarat and its inhabitants. The State of Gujarat objected to the proposal of the State of Madhya Pradesh to construct Maheshwar and Harinphal Dams over the river Narmada in its lower reach and also to the agreement reached between the States of Madhya Pradesh and Maharashtra to jointly construct the Jalsindhi Dam over Narmada in its course between the two States. The main reason for the objection was that if these projects were implemented, the same would prejudicially affect the rights and interests of Gujarat State by compelling it to restrict the height of the dam at Navagam to FRL 210ft.or less. Reducing the height of . the dam would mean the permanent detriment of irrigation and power benefits that would be available to the inhabitants of Gujarat and. this would also make it impossible for Gujarat to re-claim the desert area in the Ranns of Kutch. According to the State of Gujarat, the principal matters in disputes were as under; (i) The right of the State of Gujarat to control and use the waters of the Narmada river on weIl-accepted principles applicable to the use of waters of inter-State rivers; (ii) The right of the State of Gujarat to object to the arrangeement between the State of Madhya Pradesh and the State of Maharashtra for the development of Jalsindhi Dam; . (iii) The right of the State of Gujarat to raise the Navagam dam to an optimum height commensurate with the efficient use of Narmada waters including its control for providing requisite cushion for flood control; and (iv) The consequential right of submergence of area in the States of Madhya Pradesh and Maharashtra and areas in the Gujamt State. Vol. XVII NARMADA BACHAO ANDOLAN 107 Acting under Section 4 of the Inter-State Water Disputes Act, 1956, the Government of India constituted a Tribunal headed by the Hon'ble Mr. Justice V Ramaswamy, a retired Judge of this Court. On the same day, the Government made a reference of the water dispute to the Tribunal. The Tribunal : 5. The State of Madhya Pradesh filed a Demurrer before the Tribunal stating that the constitution of the Tribunal and reference to it were ultra vires of Act. The Tribunal framed 24 issues which included the issues relating to the Gujrat having a right to construct a high dam with FRL 530 feet and a canal with FSL 300 feet or thereabouts. Issues 1 (a), 1 (b), I(A}, 2,3, and 19 were tried as preliminary issues of law and by its decision dated 23rd February, 1972, the said issues were decided against the respondents herein. It was held that the Notification of the Central Government dated 16th October,1969 referring the matters raised by the State of Rajasthan by its complaint was ultra of the Act but constitution of Tribunal and making a reference of the water dispute regarding the Inter-State river Narmada was not ultra vires of the Act 'and the Tribunal had jurisdiction to decide the dispute referred to it at the instance of State of Gujarat. It further held that the proposed construction of Navagam project involving consequent submergence of portions of territories of Maharashtra and Madhya Pradesh could form the subject matter of a "water dispute" within the meaning of Section 2(c) of the 1956 Act. It also held that it had the jurisdiction to give appropriate direction to Madhya Pradesh and Maharashtra to take steps by way of acquisition or otherwise for making submerged land available to Gujarat in order to enable 108 CEYfRAL INDIA LAW Qtll. 2004 it to execute the Navagam Project and the Tribunal had the jurisdiction to give consequent directions to Gujarat and other party States regarding payment of compensation to Magarashtra and Madhya Pradesh. for giving them a share in the beneficial lise of Navagam dam, and for rehabilitation of displaced persons. Against the aforesaid judgment of the Tribunal on the preliminary issues, the States of Madhya Pradesh and Rajasthan filed appeals by special leave to this Court and obtained a stay of the proceedings before the Tribunal to a limited extent. This Court directed that the proceedings before the Tribunal should be stayed but discovery, inspection and other miscellaneous proceedings before the Tribunal may go no. The State of Rajasthan was directed to participate in these interlocutory proceedings. After the withdrawal of the appeals by the States of Madhya Pradesh and Rajasthan. the Tribunal proceeded to decide the < remaining issues between the parties. On 16th August 1978. the Tribunal declared its Award under Section 5(2) read with Section 5(4) of the Inter-State Water Disputes Act, 1956. Thereafter, reference numbers 1,2,3,4 & 5 of 1978 were filed by the Union of India and the States of Gujarat, Madhya Pradesh, Maharastra and Rajasthan respectively under Section 5(3) of the Inter-State Water Disputes Act, 1956. These reference were heard by the Tribunal, which on 7th December 1979 . gave its final order. Based on the agreement between the Chief Ministers of 4 states (M.P.,Maharastra, Rajasthan, and Gujarat) the tribunal declar~ its award on 16th August 1978. However, on 24th June ; : Vol. XVII NARMAUABACHAOANDOLAN 109 1987 the ministry of Environment and Forests accorded environmental clearance subject to certain conditions. Award of the Tribunal: 6. The Tribunal based its award on the basis of the following points: (a) Height of the Sardar Sarovar Dam: The Tribunal decided that the FRL of the Sardar Sarovar Dam should be + 455 ft. providing a gross storage of 7.70 MAF required for the irrigation and power generation programs. (b) Geological and seismological conditions of the dam site : Depending on the expert advice of the Standing Committee under Central Water and Power Commission the Tribunal decided that there should bea seismic coefficient of 0.10 g for the dam. (c) Relief and Rehabilitation: The Award of the Tribunal also contained certain directions regarding the relief and rehabilitation of the displaced persons due to the compulsory acquisition of the land for the dam. It defined the displaced person, outee, family etc for the proper distribution of the relief funds. The government of Gujarat was to pay to the states of Madhya Pradesh and Maharashtra all costs including compensation, charges and expenses incurred by them for and in respect of the compulsory acquisition of land. It further made the provisions that if the State of Gujarat was unable to resettle the oustees or the oustees were unwilling to occupy the area offered by the States, then the oustees will be re-settled byhome state and all expenses for this would be borne by Gujarat. The 110 C£NTRAL INDIA LAW Qfy. 2004 Clause XI sub-clause IV (6) (ii) stated that no submergence of any area would take place unless the oustees were rehabilitated. (d) Allocation of the water from Narmada: The Tribunal decided that the quantum of water of the Narmada at Sardar Sarovar Dam site on the basis of75% dependability at 28 MAF. Madhya Pradesh: 18.25 MAF Guiarat 9.00 MAF Rajasthan O.50MAF Maharashtra 0.25 MAF (e) Period of Non-reviewability of certain Award terms: The Award provided that the period of operation of certain clause of the final order and decision of the Tribunal should be subject to review only after a period of 45 years from the of the publication of the decision of the Tribunal in the official gazette. The Tribunal ordered the formation of the Narmada Control Authority for the purpose of securing compliance with and implementation of the decision and directions of the Tribunal. The Supreme Court of India 7. In November 1990 Dr. B. D. Sharma wrote a latter to the Supreme Court for setting up of National Commission for Scheduled Castes and 'Tribes including proper rehabilitation of oustees of Sardar Sarovar Dam. This latter was entertained and treated as a writ petition under article 32 of the Constitution being Writ Petition No. 1201 of 1990. Vol. XVII NARMADA BACHAO ANDOLAN 111 On 20th September 1991, the Supreme Court gave a direction to constitute the Committee headed by Secretary (Welfare) to monitor the rehabilitation aspects of Sardar Sarovar Project. In April 1994, the Narmada Bachao Andolan filed the writ petitionon behalf of the ousted tribals praying that the respondents should be restrained from proceeding with the construction of the dam. The Government of India, Ministry of Water Resources constituted a Five Member Group to be headed by Dr. Jayant Patil, Member, Planning Commission and Dr. Vasant Gowarikar, Mr. Ramaswmy R. Iyer, Mr. L. C. Jain and Dr .V. C. Kulandaiswamy as its member to continue discussions with the Narmada Bachao Andolan on issues relating to the Sardar Sarovar Project. Three months time was given to this Group to submit its report. During this time, the construction of the dam continued and on nd 22 February 1994 the Ministry of Water Resources conveyed its decision regarding closure of the construction sluices. This decisionwas given effect to and on 23 rd February 1994 closure of ten construction sluices was effected. In April, 1994 the petitioner filed the present writ petition interalia praying that the Union of India should be restrained from proceeding with the construction of the dam and they should be ordered to open the aforesaid sluices. The Gujarat High Court had passed an ·order staying the publication of the report of the Five Member Group established by the Ministry of Water Resources. On 15th November 1994, this Court called for the report of the Five Member Group and the Government of India was also directed to give its response to the said report. 112 .CENTRALINDIA LAW Qf~. By order dated 13th December 1994, this Court that the,report . of the Five Member Group be made public and response;' to the . same were required to,be'flied by the States and the report was to be considered by the Narmada Control Authority. The Narmada Control Authority on 2nd January 1995 discussed this Report wherein the State of. Madhya Pradesh expressed disagreement on the issues of height and hydrology. The Government of India and the Government of Gujarat and Madhya Pradesh filed separate responses in this Court to the Said Five-Member Group Report. On 24th January 1995, the Supreme, Court issued orders to the Five Member Group for submitting detailed further report on the' . issuesof: (a) Height (b) Hydrology (c) Resettlement and Rehabilitation and Environmental matters Dr. Patil who had headed the Five Member Group expressedbis unwillingness to' continue on the ground of ill..health and on 9th February, 1995, this Court directed the'remaining .four members to submittheir report on the aforesaid issues, , t On 17th April 1995 the Four Membergroup submittedits report. .The said report stated that the Members were equally divided on the various issues. '. Hydrology- Professor V. C.. Kulandaiswamy and Dr. Vasant Gowariker were in favour of adopting 75% dependable flow of 27 MAF for the design purpose, on the basis of which the Tribunal's Award had proceeded. On the other hand, Sri Ramaswamy Iyer Vol XVII NARMADA BACHAO ANDOLAN 113 and Shri L. C. Jain were of the opinion that for planning purposes. it would be appropriate to opt for the estimate of 23 MAF. Height-Dr. Gowariker said that the Tribunal had decided FRL 455 ft. after an exhaustive study including social, financial.and technical aspects of the project. Therefore. it was not practical to reduce the height when an expenditure of Rs. 4000 crores had already been incurred. additional contracts amounting to Rs. 2000 crores entered into and various parameters and features of the project already designed with respect to FRL 455 ft. The other three Members had stated that after such a large. input of investment. with benefits were not realized, a very logical reason could only be the Cause of retarding the speed of completing. the project. Therefore, regarding the reduction in height of the dam if displacement and rehabilitation is considered a reason then they believed that it was manageable so was not a cause to reduce the height of the dam. However, if it was beset.with serious and pe~istent problems then they might be led to the conclusion that there should be an examination of the possibility of reducingsubmergence and displacementto a more manageable size. After, taking into consideration the view of the States of Madhya Pradesh and Gujarat, the three Members observed that the idea of phased construction prescribed by the Government of India offered a practical solution. It does not prevent the FRL from being raised to 455 ft in due course if the necessary conditions are satisfied; and it enables the Government of Madhya Pradesh to take stock of the position at 436ft and call a halt if necessary. They recommended phased construction in a literal sense, that is to say, that at each phase it must be ensured that the condition of 114 CENTRAL INDIA LAW Qt~. 2004 advance completion of R&R had been fulfilled before proceeding to the next phase (i.e. the installed of the next tier of gates). Arguments or the Petitionen 8. On behalf of the petitioners, the Learned Senior Counsel Shri. Shanti Bhushan made the arguments. His argument were divided into four heads, namely. (a) General issues The forcible displacement of the tribal's and other marginal farmers from their land and other source of livelihood for a project which was not in the national or public interest was a violation of their fundamental rights under Article 21· of the Constitution of India read with ILO Convention 107 to which India is a signatory. As per the Convention tribal population could not be removed 'without free consent from lands oftheir natural territories except in accordance with national laws and regulations or reasons relation to national security or in the interest of national economic development. However, if were to be removed for an exceptional reason then they shall be provided with lands of quality at least equal to that of lands previously occupied by them, suitable to provide for their present needs and future development. However, the respondents have not been able to show that the displacement of the thousands of tribal family for the Sardar Sarovar Dam was required for an exceptional measure. (b) Issues regarding environment: Shri Shanti Bhushan raised four issues under this head. They were as follows: Vol. XVII NARMADA BACHAO ANOOLAN 115 I. Whether the execution of a large project, having diverse and far reaching environmental impact, without the proper study and understanding of its. environmental impact and without proper planning and mitigation measures, is a violation of fundamental rights of the affected people guaranteed under Article 21 of the Constitution of India? II. Whether the diverse environmental impacts of the Sardar Sarovar Project have been properly studied and understood? III. Whether any independent authority has examined the environmental costs and mitigation measures to be undertaken in order to decide whether the environmental costs are acceptable and mitigation measures practical? IV. Whether the environmental conditions imposed by the Ministry of Environment have been violated and if so, what is the legal effect of the violations? (c) Issues regarding relief and rehabilitation The petitioner's contended that as a result of construction of dam over 41.000 families would be affected in three States spread over 245 village. The numbers of families have increased from the 7000 families assessed by the Tribunal. It was further contended that the submergence area could be broadly divided into two areas, (1) Fully tribal area covering the initial reach of about 100 or so villages which are almost 100% tribal and hilly including the 33 village of Maharashtra. 19 of Gujarat and many of the' Madhya Pradesh. ." (2) Secondly the mixed population area on the Nimad plains with a very well developed economy that is well connected to the 116 CENTRAL INDIA LAW (p,y. mainstream. Ofthe 193 villages, stated to be affected by Sardar Sarovar submergence 140 were in the Nimad plains and had schools, post offices, bus services etc. which were not a available to the tribal region. It was contended that the project authorities talked only about the families affected by submergence, none of the other families affected by the project are considered PAFs nor any rehabilitation package been designed for them. These non-recognized categories _ were those persons living in submergence area who are not fanners but are engaged in other occupation like.petty traders. village shop- keepers who to be affected by submergence. It was contended that there was an urgent need to assess comprehensively the totality of the impact and prepare category specific rehabilitation policies for all the people affected by the canal construction who would be losing 25% of their holdings or the people whose lands will be acquired for drainage or the J0.000 fishing families living downstream whose livelihood will be affected orlands of the tribals whose catchment treatment area had been carried out or persons who are going to be affected by Narmada Sagar Project and Garudeshwar Weir etc. It was also submitted that the total number of affected families in all the .three . . States as per the Mater Plan prepared by the Narmada Control Authority is 40727. According to the petitioner. however, this figure is an underesti~ate and the estimate of the land required for these PArs is also {me a much lower side because; (a) In each. village there are many persons left out of the Government list of declared PAFs. These are joint holders [non recognized as landed oustees or PAFs] and the adult sons. Vol. XVII NARMADA 8ACHAO ANOOLAN 117 (b) Incorrect surveys had been conducted and the affected persons have serious apprehensions about the validity of the surveys since at many places the level markings are suspect. in many cases the people affected at higher levels have been given notices tor lower levels, many others at the same levels have been left out and so on. It is also alleged that there have been shortcomings 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 son 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 4 Notification. From the aforesaid it was contended that the total impact in terma of number of oustees as well as land entitlement would be much larger than what is considered in the Master Plan. Also the three States had dissimilar policy on R&R., this difference in rehabilitation packages with the package of Gujarat being more favorable would lead to a situation where the oustees are forced to shift to Gujarat. The non-provision of fuelwood and . grazing landwith fodder were some serious problems. (d) Issues regarding review of Tribunal's Award The petitioner contended that the Tribunal's Award needed to .. be reviewed. At present the Award is not applicable because firstly it had been prepared when the evaluation of the displaced persons and outees was far less than the actual number. Secondly the Award has not ensured proper management of the relief and CENTRAL INDIA LAW - PIL cannot be permitted to challenge the policy decision taken after a lapse of time. It is against the national interest and contrary to the established of low that decision to undertake developmental projects are permitted to be challenged after a number of years of during which period public money has been spent in the execution of the project. The petitioner has been agitating against the construction of the dam since 1986. before environmental clearance was given and construction started. It has, over the years. chosen different paths to oppose the dam. At it's instance a Five Member Group was constituted, but it's report could not result in the stoppage of construction pari passu with relief and rehabilitation measures.. Having failed in it's attempt to stall the project the petitioner has resorted to court procgedings by filing this writ petition long after Vol. XVII . NAR.MADA HACHAO ANDOlAN 121 the. environmental clearance was given and construction started. The pleas relating to height of the dam and the extent of submergence, environment studies and clearance. hydrology, seismicity and other issues, except implementation of relief and rehabilitation. cannot be permitted to be raised at this belated stage. , It has been the effort on the part of the petitioners to persuade this Court to decide that in view of the difficulties in effectively implementing the Award with regard to relied and rehabilitation and because of the alleged adverse impact of the construction of the dam will have on the environment. further construction of the dam should not be permitted. The petitioners support the contention on behalf of the State of Madhya Pradesh to the effect that the height of the dam should be reduced in order to decrease the number of oustees. In this case. the petitioners submit that with regard to hydrology. the adoption of the figure' of 27 MAF'is not correct and the correct figure is 23 MAF and in view therefore the height of the dam need not be 4.55 teet. Any issue, which had been decided by the Tribunal, in law. is binding on the respective states. A Constitution Bench of the Court has decided this in The State of Kamataka Vs. State of Andhra Pradesh and others. 2000 (3) Scale 505. Once the Award in binding on the States, it will not be open to third party like the petitioners to challenge the correctness thereof. The respondents thus did not propose to deal with any contention, which even seemed to challenge the correctness of an issue decided by the Tribunal, Refuting the arguments of the petitioners the respondents st~ta\:that J~e petitioners have given a 122 CENTRAL INDIA LAW (it,,_ 2004 highly exaggerated picture of the submergence and other impacts of this project. It was also submitted that the petitioner's assertion that there was large-scale relocation and uprooting of tribals was not factually correct. The project would affect only 245 village in Guiarat, Maharashtra and Madhya Pradesh due to pondage and backwater effect corresponding to 1 in J 00 year flood. The State-wise break up of affected villages and the number of project affected families (PAFs) shows that only four village would be fully affected (three in Gujarat and 'one in Madhya Pradesh) and 241 would be affected, (16 in Gujarat, 33 in Maharashtra and 192 in Madhya Pradesh). The total project affected families who would be affected were 40827. The extent of the submergence was minimum in the State of Madhya Pradesh. As per the contention of the Article 12 of the [LO Convention No. 107 the rehabilitation package contained in the Award of the Tribunal as improved further by the State of Gujarat and the other States prime facie is a substantial package and also in accordance to the Article. The respondents stated that the allegation of the petitioners that the project was not -in the National interest is false in the view of, the; i~~reasing need of water for the national population. Especially when almost the whole country is suffering from water stress. ' , , I " Judgement 10. The Judgement of this suit was in the form of the Majority Judgement given by Justices Kripal and Anand and the Minority Vol. XVII NARMADA BACHAO ANDOLAN 123 Judgement given by Justice Bharucha. The Majority Judgement is the operative judgement but it does not undermine the importance of the minority judgement. Justice Kripal in his judgement said that public Interest Litigation was an innovation of the judicial system so as to bring to view public opinions and needs to the forefront. Even in a Democracy like us the true representation of the public opinion is not present in every parliamentary or executive decision thus in order to acknowledge and apply public aspirations the public Interest Litigation's were brought to use. However" the Court's should refrain from becoming an approval authority to public policies and decision, which are within. the Government's purview. Therefore, for any project which is approved after due deliberation the Court should refrain . from being asked to review the decision just because a petitioner filing the PIL alleges that such a "decision should' not have been taken because of an opposite view against the undertaking of the project. When two or more options or views are possible and after considering them the Government takes a policy decision, it is then not the function of the Court to go into matter afresh and; in a way sit in appeal over such a policy decision. Furthermore environment concern has not only to be of the area which is going to be submerged and its surrounding area. The impact on environmentshould be seen in relation to the project as a whole. While an area of land will submerge but the construction of the Dam will result in multifold improvement in the environment of the area where that canal waters will reach. Apart from bringing drinking water within easy reach the supply of water to Rajasthan 124 CENTRAL INDIA LAW Gly. 2004 and Gujarat and will also help in checking the advancement of the Thar Desert. Human habitation will increase there which;' in tum.' .will help in protecting the so far porous border with Pakistan. Providing them with alternative land sites and compensation could mitigate the hardships of oustees from Madhya Pradesh. Displacement of people living on the proposed sites and the areas t? be submerged is an important issue. Most of the hydrology projects are located in remote and inaccessible areas, where local population is, like in the present case, either illiterate or having marginal means of employment arid the per capita income of the families is low. It is a fact that people are displaced by projects from their ancestral homes. Displacement of these people would .undoubtedly disconnect them from. their past; culture, custom and traditions, but then it becomes necessary to harvest a river for larger good. A nature river is not only meant for the people close by but it should be for the. benefit of those who can made use of it, being away from it or near by. Realising the fact' that displacement of' these people would disconnect them from their pat, culture; custom and traditions, the moment any village is earmarked for take over for dam or any other developmental activity, the project implementing authorities have to implement R&R. programs. the R&R plans are required to be specialty drafted and implemented to mitigate problems whatsoever relating to all, whether rich or poor, land owner or encroacher, farmer or tenant, employs or employer, tribal or non-tribal. A properly drafted R&R plan would improve living standards of displaced' persons after displacement. For examp!e residents of villages around Bhakra Nangal Dam, Nagarjum Sagar Dam, Tehri, Bhilai Steel Plant, Bokaro and Bala Vol. XVII NARMADABACHAOANDOLAN 125 Iron and Steel Plan and numerous other developmental sites are better off than people living in villages in whose vicinity no development project came in. It is not fair that tribals and the \ people in undeveloped villages should continue in the same condition without ever enjoying the fruits of science and technology for better health and have a higher quality of life style. Should they not be encouraged to seek greener pastures elsewhere, if they can have access to it, either through their own efforts due to information exchange or due too outside compulsions. It is with this object in view that the R&R plans, which are developed. are . meant to ensure that those who move must be better off in the new locations at Government. cost. In the present case, the R&R . packages of the States, especially of Gujarat, are such that the living conditions of the oustees will be much better than what they had in their tribal hamlets. Loss of forest because of any activity is undoubtedly harmful. Without going into the question as to whether the loss of forest due to river valley project. because of submergence is negligible, compared to deforestation due to other reasons like cutting of trees for fuel. it is true that large dams cause submergence leading to loss of forest areas. But it cannot be ignored and it is important to note that these large dams also cause conversion of wasteland into agricultural land and making the area greener. This project not only allows the farmers to grow crops in deserts but also checks the spread of Thar Desert in adjoining areas of P\Uljab and Haryana. The Award of the Tribunal is binding on the Statesconcerned. The said Award also envisages the relief and rehabilitation measures, which are to be undertaken. If for any reason, any ofthe State Governments involved lag behind in providing adequate 126 CENTRAL INDIA LAW (2ty. 2004 i relief and rehabilitation then the proper course, for a Court to take. would beto direct the Award's implementation and not to stop the execution of the project. This Court as a Federal Court of the country especially in a case of Inter-State River dispute where an Award had been made, has to ,ensure that the binding Award is "implemented. In this regard. the Court would have the jurisdiction to issue necessary directions to the State which. though bound, chooses not to carry out its obligations under the Award. Just as an ordinary litigant is bound by the decree, similarly the Award binds a State. "The Majority judgement included the following directions: I I (1) The construction ofthe dam would continue as per the Award of the Tribunal. (2) The construction as cleared up to 90 meters by the Relief and Rehabilitation Sub-Group shall be undertaken immediately but any further increase shall be only in accordance to the clearance as given by the Relief and Rehabilitation Sub-Group after consulting the Grievances Redressal Authorities. (3) At every stage of construction beyond the 90 meters shall be undertaken after environment clearance from the Environment Sub-group under the Minister of Environment and Forests at every stage of construction. (4) The Narmada Control Authority shall give permission for construction beyond 90 Meters after the Relief and Rehabilitation and Environment Sub-group provide clearance. (5) The States of Madhya Pradesh, Maharashtra and Gujarat shall implement the Award and give relief and rehabilitation to the Vol. XVII NARMADA BACHAO ANDOLAN 127 oustees in terms of the packages as per the Award and comply with any direction in this regard which is given either by:the NCA or the Review Committee or the Grievances Redressal Authorities. (6) The Narmada Control Authority and the Environment Sub- group will continue to monitor and ensure that all .steps are . taken not only to protect but also to restore .and improve the . environment. (7). the Narmada Control Authority shall within four weeks from the date of the judgement draw up an Actjon plan in relation to . .further construction and the relief and .rehabilitation rwork to be undertaken. Such an Action pl~. 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 inthe event of any dispute or difficulty arising, representation may be made 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 N. C. A. (8) In the Event of any unresolved dispute before the NCA the Review Committee shall meet whenever required to do so. This 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 programs. In case of any dispute, which cannot be resolved by the Review Committee, it shall recommend the matter to the Prime Minister whose decision. in respect thereof, shalt be final and binding on all concemer' 128 CENTRAL INDIA LAW (D"Ij. 2004 (9) The Grievances 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 programs and in case of non-implementation of its directions, the GRAs will be at liberty to approach the Review Committee for appropriate orders. (l0) Every endeavor shall be made to see that the project is completedas expeditiously as possible. (11) Cancellation- The Narmada Bachao Andolan call has brought several issues in the view of the public. It has made us see that investments and projectsof such magnitude have to be planned and conductedin a more practice manner. The concerns of the environmentalist and scientists stating that large dams can be harmful to the ecosystem has to be considered. Severallacuase like.