On March 15, in a judgement related to rehabilitation of the Narmada dam oustees, the Supreme Court took issue with the state government of Madhya Pradesh on the grounds that the government has not implemented the court's earlier directions on rehabilitation of submergence impacted families, in letter and spirit. The court was ruling on applications filed by the oustees of the Sardar Sarovar Project (SSP) in two villages, Jalsindhi (Jhabua dist., M.P.) and Picchodi (Badwani dist., M.P.)

The court deplored the MP government for having diluted the list of projected affected families entitled to rehabilitation. MP authorities had introduced a distinction by differentiating between temporari;y and permanently affected people, and made that the basis for implementing legally mandated rehabilitation measures flowing from the Narmada Water Disputes Tribunal (NWDT) award, the governing law for the dam projects. However, the Court did not recognise this distinction, and ruled on the side of the MP oustees. "Their rights are being denied. This attitude on the part of the state, as has been observed in the main judgment, cannot but be deprecated", said the ruling. The judgement came just one day after the International day of Action against dams, for rivers, water and life, March 14.

Between February 8 and May 14 2002, the Narmada Control Authority (NCA) invented a distinction between temporary and permanent oustees in order to deflate the list of project-affected families (PAFs). And in the three years since then, much cement has been poured on the mammoth Sardar Sarovar Dam, raising its height from 90 metres to 95 metres, then to 100 metres, and then to 110.64 metres.

The date - 17 May 2002 - brings back memories vividly. A small bunch of activists in a small township in Madhya Pradesh were in conversation as to how to respond to the government's brutal repression of adivasi farmers affected by the Maan Irrigation project in Manavar tehsil of Dhar district, when the phone rang. A voice from the other side informed those gathered that the NCA had granted permission to raise the height of the Sardar Sarovar dam from 90 to 95 metres. The minutes of the NCA's meeting - which took place in clandestine fashion three days earlier - weren't yet available, but the NCA had gone public with the news.

Terms of rehabilitation (the law)

Oustee: An 'oustee' shall mean any person who since at least one year prior to the date of publication of the notification under Section 4 of the Act (i.e. Land Acquisition Act), has been ordinarily residing or cultivating land or carrying on any trade, occupation, or calling or working for gain in the area likely to be submerged permanently or temporarily.

Family: (i) A family shall include husband, wife and minor children and other persons dependent on the head of the family, e.g. widowed mother, (ii) Every major son will be treated as a separate family.

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I don't know how many newspersons asked for a copy of the minutes of the meeting before getting down to writing the news, but only wish they could have. Had they done so, and compared the figures of the PAFs that the NCA was publishing, they would have got their eyebrows rising over the diminishing numbers of PAFs in MP. That didn't happen. So instead of the diminishing number of PAFs - I call it sudden disappearances - it was the rising of the height of the Sardar Sarovar dam that became the news. In the meantime, a few kilometers away in the submergence zone of Maan Irrigation project in Dhar district, disappearances of other kinds prevailed; schools, hand pumps and transformers were made to disappear by the state authorities, unleashing distress on the affected persons there (See: Stand off at Maan river).

On February 08, 2002 the official number of PAFs at the dam’s height of 95.00 metres was 5397, within a matter of three months and six days of that extraordinary hot summer of 2002, more than 4500 PAFs disappeared. Similarly, while the number that would be affected at a dam height of 100.00 metres stood at 7913, more than 4800 PAFs disappeared from this list. More than 9300 PAFs disappearing within a span of three months and six days! (Note that lists of affected families are mutually exclusive. Affected families at the height of 95 metres are exclusive of those affected when the dam's height goes up from 95 metres to 100 metres).

So what made more than 9300 names disappear from the list of PAFs? A smart usage of the adverbs “permanently” and “temporarily” to qualify affected persons even when the statutory definitions of an “oustee” and “family” as per the Narmada Water Disputes Tribunal Award (contained in sub clause 1(1) and 1(3)) made no such distinction.

Even the insertion of these qualifiers was not so obvious in the text of the minutes of the 53rd Meeting of R & R Sub Group that was held on May 14, 2002. In a subsequent Quarterly Status Report of the NCA for the quarter ending on June 31, 2002; the diminished figure of 1883 families was marked with a footnote stating, “The GoMP has resettled only those PAFs (i) whose agricultural land is coming under permanent submergence and (ii) whose habitation is coming under permanent or temporary submergence due to a 1 in 100 years flood.” Further in the same report the number of PAFs affected at the dam height of 100.00 metres was put at 3071 and was marked with a footnote stating, "PAFs whose lands are temporarily under submergence due to 1 in 100 years flood have not been considered for R&R." (emphasis included)

To determine project affected families, authorities must estimate the extent of submergence at a given dam height. The NWDT award stipulated that authorities follow the practice of taking a 'one in hundred years flood' approach for such estimates. Before raising the Dam height to a particular level, the authorities must ask themselves, 'in the event the next monsoon flod matching the intensity of once in a hundred years flood hit the Dam, to what height will the waters rise behind the Dam'. NCA documents already project such backwater effects and the documents did not make a distinction between temporary and permanent submergence.

Facing the challenge of rehabilitating the thickly populated Nimad area in Madhya Pradesh, the NCA started drawing an imaginary and arbitrary distinction between temporary and permanent submergence.

But even here, while numbers of families at the height of EL 95.00 and 100.00 metres continued to diminish, the number of families affected at the Dam height of EL 110.00 metres was being consistently shown as 12681 through out the meetings of the NCA’s R&R Sub Group between August 29, 2001 and November 14, 2002. May be the honourable members of R & R Sub Group of NCA were waiting for an extraordinary chilly winter of 2002 with a severe cold wave to follow the extraordinarily hot summer of 2002. More deflation of the PAF lists was to follow.

As I noted earlier, the figure of PAFs affected at dam height of 110 metres was consistently held at 12681 during meetings in 2001 and 2002. But in a report dated November 14, 2002, the figure came to be marked with a footnote, "This number may change after declaration of LAQ awards. PAFs whose lands are temporarily submerged due to 1 in 100 years flood have not been considered for R & R." (LAQ - land acquisition)

In fact, within a matter of six months from November 2002, more than 7000 families disappeared from affected list at a dam height of 110 metres. The diminished figure representing the number of PAFs now stood at 5607 with a footnote marked to it stating, “tentative”. And even when the diminished figure was made to stay in a suspended animation of being tentative for the time being, the honourable members of R & R Sub Groups were not suspending their actions. Just a day after this meeting took place, on May 14th 2003, the news broke that R & R Sub Group of NCA cleared the next height increase of Sardar Sarovar dam taking its height from 95.00 metres to 100.00 metres. Again, media persons were not given an access to the minutes of the meeting and were not told that the reported PAF figure for the height 110.00 metres was tentative. Those who expected so might have forgotten that we are tentatively independent citizens of a tentatively democratic country.

Between May 14, 2003 and June 31, 2003, within a matter of one month and a half, the PAF list noticed a reappearance of more than 3800 PAFs making the number grow to the level of 8406. But, in a recent claim (December 2004) by Narmada Control Authority on its website, the number of PAFs affected and rehabilitated at the height of EL 110.64 metres had further disappearance of about 4200 PAfs. Information posted on NCA website claimed that the total families displaced after the dam was raised from 100 metres to 110.64 metres were 6708, of which 1,908 families belonged to Gujarat, 606 to Maharashtra and 4,194 to Madhya Pradesh. The information did not speak of the villages that were displaced, but it claimed that all of them have now been rehabilitated at the R&R sites in the respective states. (See RTI may check Narmada Dam).

The Narmada Bachao Andoloan had represented these figures as reported in several NCA documents in a tabular form titled as “A Game of Numbers: MP’s diminishing PAF list”. Villagers submitted these figures while filing their petition before the Supreme Court.

In its March 15th judgement, the Court quotes in full the petitioners' figures. “We may, at this juncture, notice the pattern of rehabilitation of affected families in Sardar Sarovar Project from the following chart relied on by the Applicants” and then quotes not just the data in the tabular representation even the title to that, A Game of Numbers: MP’s Diminishing PAF List. Having quoted the tabular representation in full, the honourable judges stated, "The contents of the aforementioned chart, are not denied or disputed. They are said to be supported by documents."

Limited ruling

The learned judges stopped short of saying that since the applicants who were shown as rehabilitated still remain unrehabilitated, the decisions to raise the height from 90-95 metres and 95-100 metres were in violation of the law.
(IV (6)(ii) of clause XI of the NWDT award.)

The judges went on to say that even in the stipulations of the NWDT award, which was accepted by the State of Madhya Pradesh, no distinction was made between permanently affected or temporarily affected families. The judges have pointed out that had the tribunal wished to make a distinction, the definition of ‘oustees’ would not have been so worded. "We are of the opinion that all the applicants who were both permanently and temporarily affected by submergence by reason of raising of the height of the dam to the present height would be entitled to the benefit of the rehabilitation package”, they ruled.

But the judges directed that "the parties hereto shall render all cooperation with the GRA for the purpose of finding suitable irrigable and cultivable lands for allotment thereof to the applicants of village Pichhodi at an early date", and set a recommended time period of three months from the date of the ruling for this to be completed.

Still, even after the exposure of the scam in the SC, the Ministry of Social Justice continues to state on its website that the number of PAFs affected and rehabilitated at the dam height of 110.64 metres at 8860. The ministry also clarifies elsewhere on the same website that resettled families "include those PAFs to whom either the R&R package as per their eligibility under NWDT Award stipulations and liberalised State Governments Policy has been delivered or in case of unwilling PAFs the package has been offered by the State Governments but not accepted by them as yet."
See: Socialjustice.nic.in

For two years and ten months officials continued to play a game of numbers, making large numbers of living and traumatized project affected families diminish, disappear and reappear. Whereas, one is grateful to Amarkantak for blissfully providing life giving water to the Narmada, one is not sure whom to curse for ensuring the steady pouring of the cement, steel and other construction materials, in the meantime. Now that this game has boomeranged, should we expect a freeze on the continued raising of dam height?

Having fooled all of the people some of the time, and some of the people - including the courts - all of the time, will the authorities find it much harder to fool all of the people all of the time?