From Jal Khambata

NEW DELHI: The Supreme Court almost brought everything upside
down for Gujarat towards the fag end of the day's hearing now
adjourned to Tuesday, though it was just a query to know if 436
feet instead of the full 455 feet height of the Sardar Sarovar
dam on the Narmada will solve the state's problems of drought,
drinking water and irrigation.

A non-plus Harish Salve, arguing the Gujarat Government's case
for the last three days, quickly sought to wriggle out mumbling
that there are "some grievances" when presiding Chief Justice A
S Anand asked whether 436 feet would meet requirements of
perpetual drought the state faces every year.

Much to his chagrin, the two other judges on the Bench were
still quicker in telling him that the Narmada Tribunal Award
itself says that 436 feet would meet all water requirements.
Justice B N Kirpal was to first to shot back: "But that is the
Tribunal Award" and Justice S P Bharucha added: Tribunal says
agriculture, drinking water and irrigation are "all OK" at 436;
only power generation would be affected.

"Wrong impression" cried Harish and went on to explain why even
while stressing that he had "no instructions" in the matter from
the Gujarat Government to give any commitment.

He, however, saved the day when the Chief Justice wanted to know
whether the Prime Minister's formula was acceptable to Gujarat
to build the dam up to 436 feet and raise it further to full
height after five years only if the river has enough water flow.
He was quick with "Yes."

Salve had a cause to rejoice when Madhya Pradesh counsel C S
Vaidyanathan also said "Yes" but then went on to add: "except
for raising the dam after five years."

RELUCTANT MP: The Chief Justice could not resist from retort:
"MP is reluctant and Gujarat point of view is that it can wait
for further construction after five years as they would
succeed."

Justice Dr Anand was referring to the formula that the Centre's
counsel Ashok Desai keeps referring to as "agreement" which had
emerged from Prime Minister Atal Bihari Vajpayee's meeting with
the concerned chief ministers a couple of months ago.

Madhya Pradesh Chief Minister Digvijay Singh had agreed to the
formula on the spot on the basis of his own background as an
engineering graduate to assume that it would become impossible
to add more height to the dam once completed. He appears to have
seen the flaw in his understanding as the MP counsel was ready
with instructions to plead for corrections in the PM's formula.

Vaidyanathan pleaded with the Chief Justice that it was not
correct to say that MP was reluctant because its plea of less
flow of water in the Narmada as against the Tribunal's
calculations would fall flat in five years.

He said Gujarat wants to keep the cement concrete construction
intact up to 400 feet with 36 feet of iron gates on the top
which would not help Madhya Pradesh much since "savings will not
be so much" as it would mean almost same level of submergence
and displacement from backwaters and flood waters blocked by the
dam. The number of oustees on Madhya Pradesh side comes down
only if the dam is stopped at 381 feet and the rest 55 feet
covered with the iron gates that already lie fabricated.

WHY NOT 436?: Salve was so much engrossed in tearing down, for
the past two days, the environmental fears weaved in by the
petitioner Narmada Bachao Andolan that he took time to recover
from the unanticipated question coming out of the blue from the
Chief Justice who wanted to know of 436 feet of the dam's height
could solve the water problem, leaving out only the question of
power generation that would suffer.

"Gujarat cannot fully accept that proposition," Salve said while
taking time to recover and then went on to add "higher the head
of water at the dam, far off goes water," thus meeting the
requirement of Gujarat and Rajasthan. More water in a tank in a
building means stronger flow and the same is true about more
water in the reservoir, he pleaded.

Stressing at least three times that he had "no instructions" on
the question of the height except to press for what is given in
the Tribunal Award, Salve said the dam would have to be
redesigned if its height were reduced and that would mean the
water storage would change and affect the availability of water.
"Gujarat and Rajasthan would not get full share of water," he
pleaded. It would also affect the electricity supply that
Maharashtra is to get as its share.

Salve went on to stress that "the die is cast" and designs cannot
be changed at this stage. The MP counsel had, however, argued
only last Monday that the design can be still changed when the
construction had not yet reached 90 metres but it would, of
course, difficult at the later stage.

If the Tribunal had prescribed the height of only 436 feet, the
dam would have been designed for that height. "According to us
(Gujarat), once designed nothing can be done," Salve said,
adding that even in 1994 when the NBA brought the Sardar Sarovar
Project case before the Supreme Court nobody had wanted the
height to be reduced.

NBA's counsel also butted in to point out that Gujarat did not
need the dam's height to go up to even 436 feet as he said it
can draw water even at 110 metres or 370 feet. The judges did
not show interest in his interruption as the Chief Justice just
waived at him to sit down and then went on to chide the MP
counsel for showing "reluctance."

ONUS SHIFTED: Meanwhile, it was only after one-and-a-half days
of grilling of Salve by all the three judges to show what all
environmental clearances the Union Environment Ministry had
given that the Chief Justice chose to put the question to the
right man who can answer. The onus has now been shifted on the
Centre's counsel to answer these questions.

Former Attorney General Ashok Desai, who has been retained by
the Union Government to represent it in the case since he has
been there since beginning, was asked by the Chief Justice to
give a short note on the environmental clearances, specialling
stating as to what happened in 1987 and thereafter when the
Planning Commission had mandated clearances by the Environment
Ministry and how the Ministry had recorded satisfaction after
1987 in respect of each aspect.

Even while promising to give a note to explain everything, Desai
referred to the same environmental sub-group of the Narmada
Control Authority (NCA) which Salve had been referring when
asked about the environmental clearances. He said clearances was
a continuous process and as such the Act was specifically
amended at the instance of the Environment Ministry to suffice
scrutiny by the sub-group which is headed by the Environment
Secretary and attended by three, four officials of the Ministry
whenever it meets.

Salve, who may take yet another day or two to complete his
submissions, spent major part of arguments on Thursday in
responding to the questions the judges had been asking him the
previous day to remove the impression that nobody had applied
mind to the environment issues.

He referred to the joint affidavit filed at the very start of
the case in 1994 by the Union Government and the three states of
Gujarat, Maharashtra and Madhya Pradesh, reading out excerpts to
stress that all governments had applied their minds over all
studies undertaken and gone for further studies to firm up in
plugging any loopholes that may have been left in the first
studies.

Justice Bharucha, however, kept asking for comparative
assessment, if any, done by the Envornment Ministry on the
environment impact of the Project as he said no such assessment
appeared in the disclosed documents before the Courts. Salve
could not help but read out from the NCA's environmental
sub-group's minutes to show the compliance of various conditions
slapped on the project.

He also referred at great length the status reports of the NCA
to explain how the environment assessments had been done and
what remedial measures were recommended and implemented all
these years. END.
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