The Supreme Court order and

the case of the SSP affected families at the dam height EL 90m

The Supreme Court while disposing off the Narmada Bachao Andolan's Public Interest Litigation against the SSP, in its majority judgement of Justice Anand and Justice Kirpal, on 18th October, allowed work on the dam to resume and cleared the immediate construction of the Sardar Sarovar dam upto EL 90 m.

This is an analysis of averred facts placed before the Supreme Court by the Government of Madhya Pradesh. These facts have been assimilated in the majority order of the Supreme Court hence it is important to examine the meaning and implications of these averments of GoMP. These facts have emphatically proven that there is absolutely no readiness on part of the State Governments to facilitate the rehabilitation of those families affected upto dam height EL 90m. We do not intend to discuss the larger issues pertaining to rehabilitation in Maharashtra, Gujarat and Madhya Pradesh in this note.

The majority order states:

“As the Relief and Rehabilitation Sub-Group has cleared the construction up to 90 meters, the same can be undertaken immediately...”

This is a decision taken against the facts placed before the Supreme Court. Firstly, the R&R Sub-group has never given any explicit clearance for dam construction upto EL 90m. Secondly, the Government of Madhya Pradesh has most openly admitted under oath in their affidavit that there are serious problems in making land available for resettlement. They have most certainly made it crystal clear that a large number of Project Affected Families affected at EL 85m and 90m still remain to be resettled and for them the Government has no agricultural land and the resettlement sites are yet to be established.

The substantiating facts from the majority order itself as well affidavits submitted to the Supreme Court reveal that this decision is diametrically opposite to the obvious conclusions that could be drawn from them. Elaborating on the supposed rationale of the above decision, the Judges have stated in their majority order that,

“In its meeting on 6th January 1999, R&R Sub-Group of Narmada Control Authority observed that arrangements made by the States for R&R of the balance families pertaining to the dam height EL 90 meter were adequate...Pursuant thereto...on 21st January, 1999...action plan for re-settlement and rehabilitation for balanced families of dam height EL 90 meter was finalised...” (Page 117)

From above it is evident that all that the R&R Sub-group observed was that the “arrangements” were adequate. It did not observe that the PAFs affected at EL 90 m have been resettled as per the provisions of the NWDTA. Moreover, there is absolutely no mention, even remotely, of any clearance for the construction of the dam up to 90m. Indeed, even in subsequent R&R Sub-group meetings no explicit clearance for EL 90m has been given. Therefore, on what basis have the Judges given the permission to construct the dam upto 90m? Such a decision, having irreversible ramifications obviously cannot be on the confidence of the so-called “arrangements”!

But what were the ground realities of these “arrangements” at that point? GoMP unambiguously answered this question in their affidavits of July 1999. In a letter from Shri. Afroze Ahmed, Director (Rehabilitation), Narmada Control Authority to Government of Madhya Pradesh dated 12th March 1999 (placed before the Supreme Court on 14th July 1999 {as Court Volume 123}), in regard to these “arrangements” mentioned in the R&R Sub-group meeting he states,

“I would like to draw your kind attention regarding Govt. of MP’s submission during 43rd R&R Sub-group meeting of NCA held on 06.01.1999 and also during Inter-State meeting on 21.01.1999 for the finalisation of R&R Action for the dam height EL 90.0m.,that 1973 ha. has been identified in Dhar and Jhabua districts for the allotment of MP-PAFs in MP including PAFs of dam height EL 85.0m. and EL 90.0m. who are entitled for the land in MP...I shall be grateful if you could kindly arrange to send the details of land available indicating-Name of Place/village...”

Shri. Mazumdar Member (Rehabilitation), Narmada Valley Development Authority in his reply dated 26.3.1999 also placed before the Supreme Court on 14th July 1999 (as Court Volume 123) replied,

“At the outset, it may be stated that the Govt. of M.P. neither in their Affidavits submitted to H’ble Supreme Court nor in the meetings of RCNCA, NCA, SSCAC, R&R Sub-group including the 43rd meeting held on 6th January’99, ever said that an area of 1973 ha. of land identified by the State of M.P. can be made available to or can be allotted to those PAFs who are being affected at EL 85 mtrs. and/or 90 mtrs..”

This correspondence clears, without an iota of doubt, any misconceptions regarding the “arrangements” for resettlement of PAFs affected at 85m and 90m. There was no “arrangements”. Instead it implies, on the contrary, that there is no agricultural land available. Obviously the R&R Sub-group was mistaken and this was unambiguously clarified by GoMP.

The situation is still unchanged. GoMP has no suitable agricultural land for allotment in R&R as of today. This is most certainly explicit in their last affidavit to the Supreme Court.

In Government of Madhya Pradesh’s last affidavit placed before the Court, dated 6th July 2000 they have averred the following:

  1. Status of R&R at EL 85m:

There remain 188 PAFs who are yet to be resettled.

  1. Status of R&R at EL 90m:

  1. There still remain 1034 PAFs affected at EL 90m who are yet to be resettled.

  2. Land acquisition awards are yet to be passed in 6 villages, which are affected at EL 90m.

  3. “For the PAFs to be resettled in M.P. there exists requirement of development of 10 relocation sites...Out of these five have been fully developed...Other three sites...are under development...As regards, the remaining two of civic amenities at former will start soon after the formalities in respect of invited tenders are complete, and in the land for latter is procured.”


It should be evident to the Court from this affidavit that the process of resettling PAFs affected at EL 90m is still a long way from being complete. One of the first steps in the R&R process is the passing of the land acquisition awards and this is still due in 6 villages. Besides this, the affidavit brings to notice that there are a large number of PAFs yet to be allotted agricultural land and resettled as also the fact that only 5 out of the required 10 relocation sites is ready! In fact, the picture that can be drawn from this affidavit is that the R&R process is festered with serious problems and that the R&R arrangements for those affected at EL 90m is far from complete. However, the Court has overlooked the facts in this affidavit.

Even the R&R Sub-group in its Agenda notes for 46th meeting dated 26th June 2000 has accepted that there still remain PAFs to be resettled. From a table in the notes it is seen that;

The number of PAFs still to be resettled at EL 90m:


Number of PAFs yet to be resettled


220 PAFs

Madhya Pradesh

1235 PAFs

Availability of Agricultural Land:

The Government of MP claims it has identified lands to be allotted to PAFs. GoMP has identified land through the following ways:

i. By reducing grazing land areas of villages.

ii. Forest land.

iii. Land bought from prospective sellers.

However, of their own admission, these lands are mostly pasture lands which are absolutely uncultivable. GoMP has stated in their affidavit dated 11th April 2000 which has been placed before the Supreme Court, that,

“All the aforesaid parcels of land whether pertaining to grazing land, or under encroachment, or under Forest will require to be bought under development process, like tractorisation, land shaping, levelling, ripping, extraction of root stumps, creation of drainage system, examination of availability of underground water for irrigation etc. before allotment to the PAFs.”

Obviously they mean that ALL the identified lands are uncultivable as of now. There is no guarantee about these lands ‘becoming cultivable’ in the future. Further in the affidavit of GoMP dated 6th July 2000, they have stated that these lands are being shown to those PAFs affected at EL 85m and 90m. The notices that are served to the PAFs indicate where land is being shown for inspection. The notice also states

“The land will be developed for making it culturable and irrigation will also be provided. Land will be allotted only after all the developments and the works for provision of irrigation are completed...”

The notice is self-explanatory in that the land being offered is presently uncultivable and after selection the land will be made cultivable after they are subjected to the development works as stated in the same affidavit.

“The development process like tractorisation, bunding, ripping, development of drainage system etc. may be carried out only after the PAFs select the land.”

Obviously the PAFs will refuse and reject these lands, as all those shown land have done. The GoMP in their affidavit has admitted to this.

“The oustees of tehsil Barwani ...getting affected at 90 Metres, were shown Govt. lands...but none of the oustees selected these lands, stating that these lands are non-culturable, stoney, sandy and are hilly; such lands, even if developed by Govt., is not liked by them”

Obviously they have rejected these lands since they are uncultivable and the PAFs have no belief in the hollow vague promises of making them cultivable of the Government.

As of today all identified land is mostly uncultivable and ill fit for agriculture. This is evident from the above admissions of GoMP as also the joint surveys conducted by NBA and Government officials. Also, if the Government had any cultivable land available with them, then these would have been the lands they would have shown to the PAFs.

Not only have all the above facts been submitted to the Court, but the Court has taken note of many of these facts. This is seen from the order of Jst. Anand and Jst. Kirpal.

Taking cognizance of the serious problems in R&R process in MP, they have stated in their majority order that,

“Affidavit on behalf of the State of Madhya Pradesh draws a picture of rehabilitation which is quite different from that of Gujarat. There seems to be no hurry in taking steps to effectively rehabilitate the Madhya Pradesh PAFs in their home State. It is indeed surprising that even awards in respect of six villages out of 33 villages likely to be affected at 90 mtr. dam height have not been passed...” (Page 159)

Definitely referring to the status of R&R at 90m in Madhya Pradesh, the order states,

“It has not been categorically stated whether the PAFs who are so affected [at EL 85 m and 90m] have been properly resettled or not. On the contrary, it is stated that no Awards in land acquisition cases have been passed in respect of six villages and it is only after the Awards are passed that houseplots will be allotted and compensation paid...For the re-settlement of PAFs in Madhya Pradesh out of ten relocation sites mentioned in the affidavit only five have been developed.” (Page 158)

It is indeed appalling that even though the Government has not stated whether the PAFs have been properly settled, the Court did not think it necessary to seek such categorical information! The vagueness and uncertainty demonstrated by GoMP regarding resettlement is alarming. Even more so is the Court’s ignoring of this fact. Further with regard to PAFs at 90m, the Court takes note of the unpreparedness of the State and the clear truth is that there are no arrangements for the resettlement yet very extraordinarily the SC sanctions construction of the dam upto EL 90m.

Even the GRA that was specially appointed by the Supreme Court to oversee the R&R process, in its interim report has indicated that there are problems in resettlement MP. This is accepted by Jst. Anand and Jst. Kirpal in the order where they state,

“(5) The reports of the Grievances Redressal Authorities, and of Madhya Pradesh in particular, shows that there is a slackness in the work of identification of land, acquisition of suitable land.......” (Page 181)

“..Even the interim report of Mr. Justice Soni, the GRA for the State of Madhya Pradesh, indicates lack of commitment on the States part in looking to the welfare of its own people who are going to be under the threat of ouster and who have to be rehabilitated...” (Page 160)

From these statements it leaves no doubt in the fact that Jst. Anand and Jst. Kirpal were very aware that the R&R process in Madhya Pradesh left a lot to be desired. They were aware that MP is in no state of readiness to rehabilitate PAFs affected at even EL 85m and EL 90m. In this there is no room for any doubt. It is pertinent to note here that there are important provisions in the NWDTA regarding linkages between submergence, displacement and rehabilitation:

Firstly, irrigable agricultural lands will be made available for rehabilitation one year in advance [NWDTA Clause XI, Sub Clause IV (2)(iv)]


In no event shall any areas in Madhya Pradesh and Maharashtra be submerged under the Sardar Sarovar unless all payment of compensation, expenses and costs as aforesaid is made for acquisition of land and properties and arrangements are made for the rehabilitation of the oustees therefrom in accordance with these directions and intimated to the oustees” [NWDTA Clause XI, Sub-clause IV (6) (ii)]

Reading the two clauses and other clauses in the NWDTA, it becomes clear that the NWDTA strictly strictures that IN NO EVENT can lands be submerged before all payment of compensation including acquisition of lands and making full arrangements for the resettlement of the PAFs. However, the Court has sanctioned a flagrant violation of NWDTA via their order.

While the NWDTA states that rrrigable agricultural lands should be made available one year in advance, the Supreme Court, in the case of Shri B.D. Sharma Vs Union of India, passed an order stating that all resettlement and rehabilitation processes should be completed 6 months before the lands are submerged. The Court knew, beyond doubt, that for the resettlement of the PAFs affected at EL 90m neither were any arrangements in place nor was agricultural available. Also they knew that even the resettlement sites were yet to be established. It appears that the Highest Court of Justice in our country is sanctioning the violation of NWDTA!

For reasons best known to them they have decided to ignore all acknowledged facts and the provisions of the NWDTA as also the Supreme Court order in the B.D. Sharma case. Instead they have ‘ordered’ the construction work to immediately begin. They have acknowledged and noted the unpreparedness of Government of MP but instead of hauling up MP for their callous attitude towards their own people, Jst. Anand and Jst. Kirpal decided that whatever the situation, however unable MP is to resettle PAFs, the construction of the dam should begin. This inspite of how convincingly the order states that,

“...The State of Madhya Pradesh has been contending that the height of the dam should be lowered to 436 ft. so that lesser number of people are dislocated but we find that even with regard to the rehabilitation of the oustees at 436 ft. the R&R Programme of the State is no where implemented. The State is under the obligation to effectively resettle those oustees whose choice is not to go to Gujarat. Appropriate directions may, therefore, have to be given to ensure that the speed in implementing the R&R picks up...” (Page 160)

Given the prevailing situation with regard to resettlement, how could the R&R Sub-group state that ‘arrangements’ were in place? Moreover, how could the majority order absolve the R&R Sub-group of this unpardonable blunder? Furthermore, the R&R Sub-group which is also to blame for this pathetic state of resettlement have been let off scot-free by Jst. Anand and Jst. Kirpal

Jst. Anand and Jst. Kirpal, of their own admission, were aware of the following facts:

In spite of all these compelling facts it is appalling why the Court was in such a hurry to allow construction, and that too of only 2 metres inspite of being convinced of the inability of the GoMP to facilitate R&R of the PAFs. Very clearly, this order violates the NWDTA both in letter and spirit. Given all the overwhelming and compelling facts acknowledged by them, they should have waited till all resettlement was done. This, however, they did not do for reasons best known to them. However, trying to understand their (Court’s) argument it appears that they decided that since MP is party to the project it has to fulfil it’s duties and if it fails to do so the project cannot be made to pay the price.

The inescapable implication of this is that the PAFs will pay the price.

Narmada Bachao Andolan