Yet Another Dam Blocked

The Madhya Pradesh High Court in a classic judgment upholding the rule of law in letter and spirit has held that unless the oustees of the Omkareshwar Dam on the river Narmada in Madhya Pradesh are provided with a minimum of 2 Ha of irrigated land in lieu of the land from which they are being displaced the gates of the dam cannot be closed to raise the water level above the RL of 189 m. Citing the judgments of the Supreme Court in the first and second Narmada Bachao Andolan cases with regard to the Sardar Sarovar dam and in the Tehri dam case filed by N. D. Jayal, the High Court stated that it is a fundamental right of the oustees under Article 21 of the Constitution to be made better-off after displacement. The High Court held that the oustees may be made better-off by various means, whether by the allotment of land, or employment, or other schemes. However, the High Court held that "Since the Government in its rehabilitation policy had assured land, but later was reneging from this, it is the duty of the Court to enforce this as a right".

The State government tried to escape this responsibility by modifying the Rehabilitation & Resettlement Policy in 2002 by stating that the allotment of land would be made only "as far as is possible". However the High Court held that such a modification did not absolve the Government of its duty to allot land for land to the oustees, with a minimum allotment of 5 acres of irrigated lands, and that the same
would have to be complied with. The High Court also held that the Government could not have been compelled to provide lands if the same had been impossible. However,it was the finding of the High Court that lands are available in the State of Madhya Pradesh since the Government has provided thousands of acres of lands to Special Economic Zones and private industries. But the State government had made no effort to obtain private lands for the oustees. The High Court also noted that some of the oustees purchased lands with their compensation. On the basis of the above, the High Court refused to accept that lands are not available in Madhya Pradesh and that allotment of land is impossible. Therefore it held that the State Government and the NHDC are under a constitutional obligation to allot lands to the oustees, and suitable government lands and private lands must be obtained and allotted to the oustees.

The most heartening thing about this case is that it has been fought on behalf of the Narmada Bachao Andolan by its activist Chittaroopa Palit more popularly known as Silvy. Silvy is not formally trained in law but is actually a professionally trained manager. However after deserting her career as a manager, she has been fighting for the rights of the oustees of several Narmada projects for over twenty years now both on the field and in the courts. She has courted arrest many times and earlier she had undertaken many prolonged fasts to try and force the government to take a more humanitarian stand as in the picture below taken just after she had withdrawn her month long fast for justice to the oustees of the Omkareshwar dam. But when there was no other option left she argued in the High Court against senior lawyers of the Supreme Court and won the day on the basis of her solid marshalling of facts and law. The judge went to the extent of suo moto awarding Rs 10000 as costs to the petitioners after holding that the State had needlessly forced this litigation on them. Thus this is a people's victory in more senses than one. One of the main reasons why poor people fail to get justice in this country is that the costs of litigation are prohibitively expensive. If activists themselves can successfully plead in courts and get compensated monetarily for doing so then the dawn of justice is not far off for the poor.