Saturday, 31 December 2011

Tehri Dam Case: Supreme Court Order dated 9 Nov. 2010 20-11-2010


ITEM NO.1 COURT NO.3 SECTION X

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).22894/2005

(From the judgement and order dated 29/10/2005 in PIL No.

1287/2003 & RA No. 7124/2004 of The HIGH COURT OF UTTARANCHAL AT

NAINITAL)

N.D.JAYAL & ANR. Petitioner(s)

VERSUS

UNION OF INIDA & ORS. Respondent(s)

(With appln(s) for exemption from filing O.T.,directions and

prayer for interim relief and office report)

WITH SLP(C) NO. 22895 of 2005

(With prayer for interim relief and office report)

SLP(C) NO. 26034 of 2005

(With prayer for interim relief and office report)

Date: 09/11/2010 These Petitions were called on for hearing

today.

CORAM :

HON'BLE MR. JUSTICE R.V. RAVEENDRAN

HON'BLE MR. JUSTICE A.K. PATNAIK

For Petitioner(s) Mr. Sanjay Parikh,Adv. Mr. Anish R. Shah,Adv.

Ms. Mamta Saxena,Adv., Ms. Soomya Roy,Adv.,Ms. Anitha Shenoy,Adv.

Mr. Collin gonsalves,Sr.Adv., Ms. Ambalika,Adv., Mr. Shanti Pd. Bhatt,Adv.

Ms.Jyoti Mendiratta,Adv., Mr. P.S. Narsimaha,Sr,Adv., Mr. Virendra Rawat,Adv.

Mr. Alok Singh,Adv.

For Respondent(s)

2

(Union of India) Mr. J.S. Attri, Sr.Adv., Mr. Aditya Sharma,Adv.,

Mr. A.K. Sharma,Adv., Ms. Binu Tamta,Adv., Mrs Anil Katiyar ,Adv

Mr. V.K. Verma ,Adv, (St.of Uttarakhand) Ms. Rachana Srivastava ,Adv.

(State of U.P.) Mr. Pradeep Misra,Adv., Mrs. Malvika Trivedi,Adv.

Mr. Kamlendra Mishra ,Adv, Mr. Vijay K. Jain,Adv.


UPON hearing counsel the Court made the following O R D E R

Re: Problem (ii) referred in Order dated 17.9.2010

One of the areas that required urgent attention was the action to be taken on account of the change in the rim survey line. It was submitted by the petitioners that apart from the arlier assessed project affected families, about 158 additional families in 45 villages would require rehabilitation.

In its affidavit the State Government has stated that on a fresh survey,there was a correction in the survey line and additional lands were required to be acquired in 45 villages; that in regard to lands acquired in 40 villages, compensation has been announced; and that lands in 5 villages are being acquired by private negotiations;that awards have been announced offering Rs.22,25,22,073.68 out of which Rs.14,86,94,975/- has already been disbursed towards compensation.

It is also stated that 108 families have been identified for rehabilitation and they have been rehabilitated. On the other hand,the Tehri Hydro Development Corporation (THDC)in its affidavit has stated that only 99 families were required to be rehabilitated and all the 99 families have been allotted alternative land for rehabilitation and resettlement as per the revenue records. It is seen that there is some divergence in facts stated by the State Governmentand THDC. However, the issue can be sorted out by the following directions:

(a) The State government should expedite the disbursal of the remaining compensation amount out of Rs. 22,25,22,073.68 which is stated to have been awarded.

(b) As petitioners have stated 158 families require to be rehabilitated and according to the State only 108 families are to be rehabilitated,the petitioner may give a detailed list of the remaining 50 families which require rehabilitation. The said list shall be furnished by the petitioners to the State Government and THDC for their verification and appropriate action. A time limit of six months is fixed for the State and THDC to act in co-operation with each other to verify whether the said 50 families requires rehabilitation and if so, to take immediate measures for their rehabilitation.

Re: Problems (i) and (iii) referred in Order dated 17.9.2010

Earlier water level had been permitted to raise up to 820 meters. By order dated 27.8.2010, as an emergency measure, this Court had permitted THDC to increase the water level upto RL 830 meters. Earlier on account of the water level increasing up to 820 meters and thereafter receding, 26 villages are stated to have become

unstable leading to frequent landslides. Now on account of the water level being permitted to raise upto 830 meters and water level having risen and receded, it is expected that some more areas are likely to become unstable leading to landslides. Therefore, on 17.9.2010 it was directed that necessary steps should be taken in the risk zone 5 to ensure that there was no loss of life or property.

The State Government has stated in response to that direction that it had constituted a committee consisting of the representatives of the Geological Survey of India, Mines and Mineral Department, Survey of India, I.I.T. Roorkee and Rehabilitation Directorate of THDC etc. to visit the affected areas and assess the damages that had occurred or likely to occur on account of water level reaching RL 835 meters and thereafter receding from that level.

The learned counsel for THDC submitted that as the assessment had to be done in a large area, the committee is likely to take a minimum of six months. It is stated by the State Government and THDC that once the report is received, they will require another six months to instal/build/erect safety measures to prevent loss of life and property. As the committee has been constituted only to assess and examine the damages/landslides which are likely to take place, it is directed that consequential rehabilitation measures shall be decided by the State Government and THDC and put in place within six months from the date of receipt of the report.

Re: Problem (v) referred in order dated 17.9.2010

By our order dated 17.9.2010 we had referred the failure on the part of the State Government and THDC to take up drinking water scheme for the affected villages resulting in the paradoxical situation of shortage of drinking water when entire villages were getting submerged/marooned.

In reply, the State Government has stated that drinking water supply scheme for partially submerged villages have already been completed and Rehabilitation Directorate has already released Rs.3.01 crores recently to meet the overrun in cost in regard to the remaining work under various water supply schemes. THDC has contended on the other hand that there is no drinking water problem at all and that all the drinking water schemes are completed and the amount spent by the State Government has been reimbursed by THDC.

Unfortunately, again there is a divergence in the views of the State Government and THDC.

We also find that when there is allotment of funds or release of funds, it is treated both by State Government and THDC as utilisation of the funds for the purpose and completion of the scheme, which, unfortunately is not correct. The State

Government in its affidavit, has stated that a sum of Rs.3.01 crores has been released only recently. Therefore, obviously, the statement of THDC that the drinking water schemes have been completed and amounts have been spent may not reflect the true position.

The petitioners by way of an illustration, have made specific reference to 3 drinking water

schemes namely (1) Koshyartal Drinking Water Scheme (2) Pratap Nagar Drinking Water Scheme and Sarjyula Drinking Water Scheme, commencement of which was notified long back. It is pointed out that the first two schemes namely, the Koshyartal and Pratap Nagar Drinking Water Schemes have not been commenced at all. It is also pointed out that as

far as Sarjyula Scheme, it has been commenced but it has not been completed. This however, is denied by the State and THDC. Instead of examining the disputed question as to whether the schemes have been commenced or if commenced, whether they are completed, we direct the State Government and THDC to ensure that the said three drinking water

schemes, if not completed, should be completed within a period of four months from today. The fact that we have names the three schemes does not mean that the State and THDC should bestow their attention in regard to only those three schemes.

We have referred to them only by way of illustration and wherever the drinking water schemes are urgently required, the State and THDC shall attend to them within a period of four months.

Re: Problem (iv) referred in order dated 17.9.2010

This Court had appointed a Grievances Redressal Cell to hear and decide the various issues and grievances relating to R & R work of Tehri Project. In the subsequent order dated 17.9.2010 we had noted that more than 1000 grievance petitions were pending consideration and in regard to nearly 500 grievance petitions which had been heard and decided, orders have not been signed and released. We had therefore, directed immediate further action.

The State Government and THDC in their response have stated that in all, 2815 grievance petitions were received and registered and out of them 2367 grievances have been considered and disposed of and remaining 448 grievances are yet to be decided.

The decisions of Grievances Cell is vital to the survival of the oustees/affected families. We request the Grievances Redressal Cell to complete the process and decide the pending grievance/ complaints within a period of six months from today.

There is a grievance in regard to the functioning of the Grievances Redressal Cell itself. It is stated that though many matters are heard and decided, orders are not signed and released. The aid complaint is reiterated today also. The State Government asserts that there is no such pending matters for signature after decision and wherever decisions have taken they have already been signed. The statement is placed on record. As and when the orders are signed, they should be immediately be communicated to the parties concerned so that they may become aware of the result of their grievances and wherever relief is given, take the benefit of such decisions.

Re: Problem (vi) referred in order dated 17.9.2010

In our order dated 17.9.2010 reference was made to the inaction on the part of the State and THDC to provide access and connectivity to the affected areas. A reference was made to the lack of progress in regard to construction of Dobtra Bridge, Ghonti Bridge and the work of rope ways and ferry boats wherever necessary. The petitioners submit that the position remains the same and no action has been taken.

On the other hand, the State Government and THDC have submitted that necessary steps are being taken and delay is either on account of the design of the projects being changed on account of upgradation of some of the projects (say from pedestrian bridge at Garti to light motor vehicle bridge) and other technical reasons.

It is also submitted that the financial outlay has also increased enormously on account of the design changes and on account of the additions/extensions and there is also a problem of funding. It is however stated that the work will be commenced immediately after necessary funds are made available by THDC/Union Government. THDC has stated that wherever funds are required, it has been released.

The petitioners have presented a grim picture as to how in the absence of bridges, people will have to travel by foot by other means adding to the distance anything between 25 kms. to 50 kms. To reach the destination. In the circumstances, the urgency in building these access works cannot be over stressed. Even though the State and THDC may have problems regarding designing, finance and other technical aspects, keeping in view the fact that absence of the bridges is creating hardship to the villages concerned, the work should be expedited.

We direct that the following steps should be taken in a phased manner:

(a) Wherever bridges are not available, ferry services/rope ways should be provided.

(b) The designing and modification of the projects should be completed and necessary finances released so that the work can be commenced at least within six months from today. Wherever the work has commenced, but not completed, an endeavour should be made to complete the same within one year. Here again the naming of the projects is only illustrative and connectivity and access should be provided wherever required.

Re: Other problems not specifically mentioned in Order dated 17.9.2010

The petitioners point out that the Rehabilitation Department was preparing the list of left out shopkeepers in the overall project area who were not considered for R & R; and that the total number of left out shops is around 400 with a financial implication of Rs.4.8 crores. The grievance of the petitioner is that the said amount has not been released inspite of repeated reminders. Learned counsel for THDC submitted that THDC in consultation with the Union of India, take necessary steps within three months from today.

The petitioners next referred to the replacement and compensation of Government and non- Government buildings i.e. schools, dispensary, hospital, guest house, temple, crematorium etc. which have been submerged. It is submitted that for relocating these facilities, a sum of Rupees Nine Crores would be required and the Directorate (Rehabilitation) has released Rupees six crores under the head "Reconstruction and Relocation" for public facilities below EL 835. The balance amount has not been released and the works are yet to be completed.

The State Government in its response has stated that lack of funds has been an obstacle. The fact that some of the areas where rehabilitation has to be done falls in forest areas and therefore requires certain clearances, has been another obstacle. The State has stated that it has constituted a committee to inspect all the relevant sites so that the work could be commenced and carried out expeditiously. We direct that the committee should complete its inspection and identification work to be done and that reconstruction and relocation of these public facilities should be completed within a period of one year. THDC/Union of India to release the necessary funds required for this purpose.

The above specific directions can not be construed as not requiring the State to proceed with the other facilities which the State has proposed to make available as disclosed in its response. The State Government and THDC shall take all the measures that are required without delay.

Learned counsel for the State Government submitted that to carry out the various rehabilitation measures, the State Government had sought the permission of the MOEF for diversion of 1489 hectares of forest land and the permission has so far been given in regard to 1083 hectares only and in the absence of permission for the remaining land, many of the works are held up. THDC and State Government shall take up the matter with MOEF for securing necessary permission in that behalf.

List after six months for reporting compliance.

(O.P. Sharma) (M.S. Negi)

Court Master Court Master

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