A Bench of Hon’ble Chief Justice Shri A.K. Patnaik and Justice Ajit Singh of the Madhya Pradesh High Court passed a major interim order today in the case of the Indira Sagar (ISP) and Omkareshwar (OSP) Canal Projects, their impacts on the environment and thousands of families affected by the twin projects, demanding compliance of environmental measures and upholding many of the contentions of Narmada Bachao Andolan on land acquisition and excavation for
the canals.
The Judgement has directed the Govt. of Madhya Pradesh, Narmada Valley Development Authority and Narmada Control Authority not to proceed with any land acquisition and excavation for the canals until all the requisite measures under the Command Area Development (CAD) Plans and the Resettlement and Rehabilitation Plans are prepared and submitted to the Ministry of Environment and Forests and other authorities concerned and are approved and implemented pari passu with the engineering works.
The decision on the CAD will first lie with the Committee of Experts to assess all studies/ plans/safeguard measures of Indira Sagar, Sardar Sarovar and Omkareshwar Projects which was appointed by the Ministry of Environment and Forests, in 2008. The Committee would scrutinize the plans, approve and guide the Government.
The Narmada Control Authority established and empowered through the Narmada Water Disputes Tribunal Award, 1979 and the Narmada Water Scheme (1980 and 1987) would be responsible for the overall monitoring and will have to ensure that the environmental impact mitigatory measures and resettlement and rehabilitation measures are properly planned, resources for the same are made available and implemented as per the judgement.
In a clear and categorical position, the Court categorically ruled that the R & R policy of the State of Madhya Pradesh of 1989 (ISP) and 1992 (OSP), based on which the two dams sought and obtained environmental and investment clearances would be applicable and not the amendments made thereafter under which the canal affected families were excluded out of the original definition of displaced. The Court struck down this amendment as being ultravires, irrational
and violative of Article 14 of the Constitution. Rightly interpreting the policy, the Court held that all persons / families to be affected by the project or any related work shall be treated as displaced, which includes the canals, and will be entitled to all the rehabilitation benefits, including land for land to those losing more than 25% of land holding, land provision to the
major sons and all other provisions on par with the submergence (reservoir) affected families, as also the benefits granted in the policy to the landless.
The Judgement also refers to the canals planned to be constructed in the already irrigated areas wherein there is no need for further irrigation through canals, such as villages already falling in the Sardar Sarovar and Maheshwar dam affected areas and directs the authorities to review the canal network and CAD Plan to minimize displacement, in the context of increasing people’s struggle and agitation against land acquisition for development projects across the country and considering that the affected people are losing faith in the State and its promises as well as capacity to rehabilitate them.
While the major interim order has emphatically entrusted the responsibility to the Narmada Control Authority to ensure monitoring of all the environmental safeguard measures and the implementation of R&R, it has also directed the State of Madhya Pradesh to establish a Grievance Redressal Authority for the purpose.
With reference to the PESA Act, 1996, the Chief Justice, while admitting its constitutional place and position for the Panchayati Raj in the scheduled areas and holding that the State is duty bound to incorporate the provisions therein, including consultation with the Gram Sabhas before land acquisition and before rehabilitation, held that since the petitioners haven’t challenged Section 14 (a) of the Madhya Pradesh Panchayati Raj evam Gram Swaraj Adhiniyam of 1997,
1999 and 2001 and since the state government has not amended its Panchayati Raj Act to include Section 4(i) of the Central PESA Act, the Act can’t be applicable unless the State legislature enacts an amendment to that effect.
Citing an earlier judgment by the same Bench, the High Court further ruled that when the land acquisition is under a Central Act (in this case the Act of 1894), consultation of Gram Sabhas prior to land acquisition is not to be mandatory for projects in Madhya Pradesh. The Order, however, notes that the State of Madhya Pradesh should have incorporated the provisions of the PESA Act including Section 4(i) in the State level Panchayat Act.
As regards procedural aspects of land acquisition, along with property valuation, the Bench held that the remedy of reference under Section 18 of the Land Acquisition Act would be available to the canal affected families and hence the Court is not to intervene in present writ petition, through the merits of the same may be argued and decided in separate writ. Thus the Order
leaves it open to the canal-affected to approach the Hon’ble Court with further details.
On the whole, the High Court’s order, is indicative of further progress of the Narmada project affected families, by extending the rights and privileges of R&R to all categories, beyond reservoir-affected and upholding the great value and importance of environmental measures, including command area development as pre-conditional to any work such as land acquisition and excavation of the canals, along with the principle of minimizing displacement, while planning of a development project. The case has been disposed with a direction to the Narmada Control Authority to submit three-monthly reports on implementation of all the social and environmental measures related to the Project by GoMP and NVDA.
Narmada Bachao Andolan respects and welcomes the judgement as highly progressive, Since it holds the environmental mitigatory measures as mandatory and pre-conditional , it expands the definition of the project affected, guaranteeing them the right to life under Article 21 of the Constitution and admitting and the pressing need to review the Indira Sagar and Omkareshwar projects, towards minimizing displacement and saving prime agricultural irrigated land. The Andolan shall continue struggle at the legal level and on the ground to centralize the right of the adivasis and other nature-based communities for their right to informed consultation and consent with respect to all development planning projects.
The PIL was filed on July 18th and continued till the 28th of October, 2009. Medha Patkar pleaded at length for the petitioner-farmers and adivasis. Senior advocates Ravish Agarwal, Additional Solicitor General Naman Nagrath and Adv Arpan Pawar pleaded for the Government of Madhya Pradesh and NVDA while Advocates Radheshsyam Gupta for MoEF and Dharmendra Sharma appeared for NCA.
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