On 21st August 2008, the Jabalpur bench of the MP High Court ruled in the matter of Narmada Bachao Andolan (NBA) Vs Government of Madhya Pradesh and others. The list of respondents is a long one: The State of Madhya Pradesh, NVDA, NCA, Secretary Revenue Dept MP, DG Police MP, IG Stamps and Registration, District Collectors Badwani, Dhar, Jhabua, Khargone and Dewas). The court asked the state government to appoint a one member inquiry commission to probe allegations of large scale corruption in distribution of compensation to displaced families affected by Sardar Sarovar Project.

Central to this case has been the complaint of fake registration of sale deeds under the state government's Special Rehabilitation Package (SRP), wherein GoMP tried to wriggle out of its legal commitment to comply with NWDTA's binding rehabilitation clauses of providing an oustee with irrigable and cultivable land in lieu of submerged land. A 20-page order appointed Justice S S Jha, a retired judge of MP High Court as a one member inquiry commission.

The ruling has once again put the issue of unfinished resettlement and rehabilitation (R&R) in the Narmada valley in the forefront. More than a month has been passed since, but GoMP has not yet taken any steps to comply with directions of the ruling. The order stipulates the scope of the probe, emphasising the need to gather more details on fake registry and corruption in development of R&R sites. The court has also ruled that the commission will complete the inquiry within six months from the date of issue of the order, and stipulates the listing of the matter before the court "after the report of the commission is received or after six months whichever is earlier".

The court's order leaves serious legal questions on the derailed land based rehabilitation unexplored and unanswered. According to the order, “The commission will inquire into:

i) Whether there have been fake registration of sale deeds under the Special Rehabilitation Package [SRP] for rehabilitation and resettlement of PAFs/ PAPs of the Sardar Sarovar Project in the districts of Badwani, Dhar, Jhabua, Khargone and Dewas and, if so, the details of such fake registration of sale deeds and the persons responsible for such fake registration of sale deeds?

ii) Whether the civic amenities in R&R site such as road, drainage, panchayat bhavan, schools, dispensaries, seed stores, etc., are of sub-standard quality as compared to the expenditure incurred by the State Government or the NVDA and, if so the persons responsibility of such constructions of sub-standard quality."

It was on 16 October last year that the NBA had filed a PIL (WP No 14765 of 2007) in MP High Court. In the course of arguments on this matter, an old contention arose from the respondents: They argued that the Supreme Court had in an order in 2002 held that the Grievance Redressal Authorities (GRA) having been put in place, there is no reason for the court to interfere in such matters, and that if an oustee or a person affected by the project has any grievances, it is open to him to approach the GRA.

However, what the respondents did not bring up was this: In the same 2002 ruling, the Supreme Court had further stated, "It is also contended that land for land has not been given. If there is any person so aggrieved or has a justifiable grievance, it is open to that person to approach the Grievance Redressal Authority, failing which this court". Thus, the apex court had indeed imagined a situation wherein GRA may also fail to redress a justifiable grievance and enforcing the land for land rehabilitation as laid down by NWDTA, and if that turns out to be a case, a window was open to turn to the apex court.

In making its recent ruling, the MP High Court has struck down the contention of the respondents. It said:

"We find that despite the fact that the GRA under the chairmanship of retired High Court judge has been functioning, there are more than 600 complaints of fake registrations of sale deeds under the Special Rehabilitation Package [SRP] and also allegations of other irregularities committed at the time of implementation of R & R measures stipulated in the Narmada award and these complaints have also been brought to the notice of the Narmada Control Authority [NCA] and the NCA has asked the Government of MP to look into the complaints. Had the GRA been dealing with these complaints, it would not have been necessary for the NCA to ask the State government to look into the complaints and take necessary action in accordance with law. Presumably, the GRA may not have entertained the complaints with regard to fake registrations and corruptions and irregularities on the ground that these complaints were outside its authority and it does not have powers to deal with such complaints."

Just four days prior to a scheduled hearing at the High Court in July, the respondents on 18 July appointed N C Nagraj, a retired District and Sessions judge as a single member Commission of Inquiry by notification. At the High Court, the petitioner contended that this move smacked of attempts to derail the ongoing proceedings.

Click for larger diagram

The complex web of relationships and messy decision-making for the Narmada dam projects. Source: Himanshu Upadhyaya, Diagram: Gaurav Singhal.

Let's take a look at what led to fake registrations under SRP along side tracing its emergence, short lived striking down and reappearance.

The 'Special Rehabilitation Package' and concerns over non-compliance: May 2001 to January 2002

On 15th May 2001, NVDA proposed to move away from compliance with the binding rehabilitation clauses of NWDTA by proposing an amendment. Soon thereafter at the 63rd meeting of the NCA, legal objections to this move were raised. However, riding rough on those concerns, the Department for Narmada Valley Development of Government of MP (GoMP) brought out a Government Order (GO) in late 2001 to push an "additional liberalized" (read: cash for land) rehabilitation package and financial assistance. Once again concerns were raised at the 51st meeting of R&R sub group of NCA about whether it was in compliance with NWDTA. It was stated that the issue needed to be examined by Union Ministry of Law.

Striking down of SRP: March 2005 to June 2005

The next three years were that of unresolved silence, till the Supreme Court pronounced a judgment on 15 March 2005, reiterating the binding nature of NWDTA's land based rehabilitation clauses. Within a week, the Review Committee of NCA met and the chairman, the then union water resources minister Priya Ranjan Dasmunshi, ordered suspension of the SRP.

But the SRP reappeared: June 2005 to August 2007

Not letting go, the Department for Narmada Valley Development, GoMP issued a GO revising the SRP, on 16 June 2005. Once again the NCA treated re-appearance of SRP with unease and the NCA chairman, the then secretary union water resources ministry, Gauri Chatterjee stated that "Rehabilitation must be carried out in accordance with the directions of the Supreme Court judgment dated 15th March 2005."

Within ten days of this, NVDA tried another route to brush aside the NCA's concerns with impunity, by making the Commissioner (field) NVDA Indore seek an opinion of MP's GRA on the SRP. On 18 August 2005, pronouncing its opinion, the then chairman of the GRA, late justice G G Sohni stated this: "Making a provision for SRP to an oustee family, which has become entitled to allotment of agricultural land can not be said to be a provision which in any matter violates any provisions of the Award or any direction of the Supreme Court".

Notwithstanding all this, the 62nd meeting of R & R sub group of NCA on 12 September 2005 regarded the state's SRP as violative of NWDTA. The chairman of the R & R subgroup, NCA, the then secretary, Ministry of Social Justice and Empowerment, Sarita Prasad said this: "All eligible PAFs are to be allocated cultivable land and in case GoMP differs with NCA's directions, it needed to take the issue with the NCA again".

However, in violation of the Supreme Court order and the NWDTA award, the GoMP continued to practise cash for land under SRP. From December 2005 onwards, the number of PAFs opting for SRP, rather than agitating for land based rehabilitation, started rising. On 21st August 2006, a reply filed by the solicitor general G E Vahanvati on behalf of GoI in Supreme Court admitted reluctantly that there was one case of fake registry. A year later, on 13 September 2007, the NCA admitted 19, and NVDA admitted 16 cases of fake registries. However, two months after that, NVDA claimed to have conducted an inquiry and admitted 758 registries to be fake - the scam had come to light.

Misleading and misplaced arguments in the High Court

Despite all this, there was no discussions on the SRP mechanism, and its untenability with NWDTA's provision in the return filed by respondents with the MP High Court, which ruled 21 August this year. The NWDTA's rehabilitation clause XI, sub clause IV (7) states, "Allotment of Agricultural lands: every displaced families from whom more than 25% of its land holding is acquired shall be entitled to and be allotted irrigable land to the extent of land acquired from it subject to the prescribed ceiling in the state concerned and a minimum of 2 hectares (i.e. 5 acres)".

The sub clause unambiguously refers to displaced families, who are eligible to rehabilitation on irrigable land in lieu of the land submerged, as not merely 'be entitled to", but the operative phrase is extended by referring to them as "be allotted" after using the conjunctive and.

Instead the respondents together laid before the High Court a series of long sentences about their action on the fake registration scam, in what is widely understood as classic bureaucratic mumbo-jumbo. The sentences included the following phrases: 'has been discussed', 'instructed Collectors to verify', 'expedite the ongoing process of verifications', 'take strict action against the persons found guilty', etc.

Here are the lines:

"The issue of fake registration a has been discussed by the R&R Sub Group of NCA in its 68th meeting held on 13.2.3007 and 69th meeting held on 16.4.2007 at New Delhi and it was decided that all the registrations so submitted by the project affected families (PAFs) in reference to SRP must be examined. Again, in the 78th meeting on NCA held on 3.5.2007 at New Delhi, the issue was discussed in detail and the GoMP has instructed the Collectors to verify the genuineness of all the registrations submitted by the PAFs and on 24.7.2007 the Chief Secretary of MP took a meeting of NVDA Officials and the Collectors and instructed them to expedite the ongoing process of verification of all the registrations and also to take strict action against the persons found guilty with a strict caution and alertness in new registrations. On 11.9.2007 the Divisional Commissioner, Indore, issued detailed instruction to Collectors and Superintendents of Police on the procedure to be followed for Inquiry Including filing of FIRs, submitting challan before the competent Courts and taking action against Government Officials / Stamp Vendors etc."

Unsettled legal questions underneath the scam

The SRP mechanism was brought in by the GoMP to wriggle out of its commitment to allot irrigable agricultural land. Whether the mechanism as such would cause grievance to a PAF needed to have been examined by GRA, MP by reading and interpreting sub clause IV (7) of clause XI of NWDTA. This, the GRA did not do.

Further, the introduction, short term striking down and reappearance of SRP in its revised version - sanctified by GRA's communication to NVDA - also raises questions on the matter of legal entitlement of displaced persons.

The operative question that has been repeatedly brought before the courts in the Narmada case is: can the State modify legal entitlements bestowed on citizens by law that is binding on states and thereby absolve itself of its commitment to allot these entitlements on pretext of inability?

Further can the State escape the legal commitment by enticing (or by coercing as some have alleged) a citizen to trade those legal entitlements in lieu of cash and assume that a citizen would be able to access the equivalent resource/land to legal entitlement in marketplace?

There are also other legal questions, arising from the chronology of the introduction, short term striking down and reappearance of SRP, which has so far remained unexplored and unanswered by courts hearing the matter:

i) Can a state unilaterally take decisions that go against the letter and spirit of decision taken by R & R sub group of NCA, NCA and the Review Committee of NCA?

ii) Can the GRA pronounce an opinion on whether a GO was in accordance with the binding rehabilitation clauses of NWDTA, even as the said GO has undergone serious contention by bodies constituted to execute the NWDTA (R&R sub-group of the NCA, NCA, RCNCA)?