CASE NO.: Appeal (civil) 2681 of 2007 PETITIONER: KRANTI RESPONDENT: UNION OF INDIA & ORS DATE OF JUDGMENT: 16/05/2007 BENCH: C.K. Thakker & Altamas Kabir JUDGMENT:
JUDGMENT
O R D E R
CIVIL APPEAL NO. 2681 OF 2007
(Arising out of S.L.P.(c) No. 4716/2006)
ALTAMAS KABIR, J.
Leave granted.
2. The magnitude of the problem created by the Tsunami
which hit the Andaman and Nicobar Islands on 26th
December, 2004, and the disaster left in its aftermath, is
difficult to imagine and its effects continue to subsist and
haunt the islanders even today.
3. The Special Leave Petition filed against the judgment and
order passed by the Division Bench of the Circuit Bench of
the Calcutta High Court at Port Blair on 16th January, 2006,
in Writ Petition No. 205 of 2005 recounts the various
problems that were being faced by the Islanders in the wake of
the Tsunami and the steps that could be taken to mitigate
their sufferings.
4. Since it was not possible to conclude the hearing of the
appeal itself, we heard the parties on the question of grant of
interim relief till such time as the appeal could be finally heard
and disposed of.
5. Appearing in support of the appeal, Mr. Colin Gonsalves
urged that on account of the Tsunami which hit the islands,
extensive damage had been caused to the shelters and
livelihood of the islanders and in particular those inhabiting
the Nicobar group of islands. According to him, some of the
major problems included scarcity of potable drinking water,
lack of medical facilities for treatment of diseases which had
broken out after the Tsunami, lack of food and shelter and
destruction of the means of livelihood of the inhabitants of
the islands whose main occupation was fishing and
agriculture. Mr. Gonsalves urged that there was no dearth of
funds for carrying out the work of rehabilitation, but the same
were not being utilized in a proper manner. He urged that
although there were about 2000 applications pending before
the permanent Lok Adalat at Port Blair, not more than 100 of
such applications had been disposed of. He urged that since
sessions of the Lok Adalats were confined to Port Blair, many
of the affected people were unable to approach the Lok Adalat
for necessary compensation having regard to the geographical
lay out of the islands. Mr. Gonsalves emphasized the fact
that inter island transport was scarce and the time taken to
come from the Nicobar chain of islands to Port Blair took
about a week of travel time. He urged that in order to provide
proper relief to the persons actually affected by the Tsunami, it
was incumbent that Lok Adalats be held on those islands
which had been severely affected by the Tsunami.
6. According to Mr. Gonsalves, the next acute problem was
housing and that the design of the shelters which were to be
provided by way of rehabilitation was entirely unsuitable for
the islands where the salinity in the atmosphere was
extremely high. From reports prepared by a team named
“Integrated Design”, a part of the Tata Institute of Social
Sciences (TISS) and Habitat International Coalition, Mr.
Gonsalves pointed out that steel, iron and tin and other
materials such as ceramic tiles were intended to be brought
from the mainland to be used in the construction of the
houses to be provided as part of the rehabilitation programme.
He urged that such a design was entirely unsuitable for the
islands where the percentage of salinity was extremely high.
He urged that the steel work under the ground level would
come directly in contact with saline moisture while those
above ground would soon be corroded and would after some
time damage the structures and reduce them to
environmental hazards.
7. Mr. Gonsalves urged that there was sufficient timber
available for construction of traditional shelters suitable for
the islands by the islanders themselves on account of the
large number of trees which had been uprooted during the
Tsunami. This would not only reduce the costs but make the
rehabilitation process more meaningful and of lasting benefit
to the persons affected by the Tsunami without destroying the
ecology and environment of the islands. However, in the
structures which had already been constructed directions
should be given to complete the flooring as the monsoons
were almost due.
8. Furthermore, the cost of labour which would otherwise
be paid to contractors, would be available to the islanders
themselves. Mr. Gonsalves also urged that the maintenance
of the structures proposed to be constructed would be
extremely high and would be beyond the capacity of those for
whom they were meant, making the entire scheme an
exercise in futility.
9. Mr. Gonsalves then submitted that although most of the
fishermen have lost their boats in the Tsunami, the same have
not all been replaced and even those which have been replaced
are unsuitable for fishing being made of fibre glass. Mr.
Gonsalves submitted that fishermen of the islands were used
to their traditional boats which were suitable for the kind of
fishing engaged in by them. Apart from their practical value
to the fishermen, such boats called “hoodies” were made out of
the trunk of the Paduak tree and were not required to be
registered under the law involving payment of taxes and other
charges, whereas the said rules were applicable to fibre glass
boats. Connected with the aforesaid problem, is also the
problem of absence of cold storages. Mr. Gonsalves urged that
the two cold storages which had been installed at Campbell
Bay and at Car Nicobar had been destroyed by the Tsunami
and unless they were replaced, the fisher folk would not have
any means of preserving their catch.
10. Mr. Gonsalves then referred to the destruction of
agricultural lands by intrusion of saline water which had
made it impossible for cultivation. To cure the salinity and
make those lands which could be reclaimed suitable once
again for cultivation would take between six to ten years.
According to Mr. Gonsalves, about 10,000 hectares of
agricultural land which was used for paddy cultivation lies
submerged under sea water even till today. Out of this amount
of land, it appears that about 4500 hectares are not
reclaimable for paddy cultivation and may only be fit for
coconut plantation.
11. It was submitted that it is these persons, who had a
claim to be compensated and their matters were pending
before the Lok Adalats of which a small number is said to have
been decided.
12. The next problem which according to Mr. Gonsalves
required immediate consideration was the employment
guarantee which had been given by the Administration to
provide a job for one member of the Tsunami affected families.
According to Mr. Gonsalves, this scheme was based on the
decision to employ local people in the construction process,
but although the tribals are willing to construct their own
houses in the traditional manner, contracts were being given
to contractors from the mainland who bring in their own
labour and materials thereby depriving the local inhabitants of
the benefits of the scheme.
13. The next three problems referred to by Mr. Gonsalves in
respect of which immediate action was required to be taken
are perhaps the most important of all the problems. They
relate to lack of drinking water, health facilities and shortage
of food. With regard to the shortage of drinking water, it was
suggested that since the monsoon was around the corner,
appropriate directions could be given to the local
administration to arrange for preservation of the rain water by
means of rain water harvesting and construction of ponds,
where the rain water could be collected and used. As far as
the lack of health facilities was concerned, it was submitted
that Campbell Bay, which has a population of about 6000
people, has only one male Doctor. There is no Lady Doctor to
treat women patients and when the only doctor available goes
on leave there is no replacement. It was suggested that the
Administration should take immediate steps to arrange for
more Doctors who if necessary could be air-lifted to the
different islands in emergent situations. It was also suggested
that serious attempts should be made to provide a Lady
Doctor at Campbell Bay for the same purpose.
14. According to Mr. Gonsalves, there was urgent need to
continue to provide dry rations to the Tsunami-affected people.
Mr. Gonsalves submitted that although dry rations had been
provided to Tunami- affected families which had been
identified, such supply was for a time bound period within
which time such families had not been able to rehabilitate
themselves. It was submitted that it was necessary to
continue to provide dry rations as was being done to the
Tsunami-affected families, till such time as the affected
families were able to support themselves.
15. In conclusion, Mr. Gonsalves submitted that ordinarily
the families in question were being provided with two cylinders
of gas since replacement of empty cylinders take a long time in
the islands. He submitted that currently only one cylinder is
being supplied causing the families to remain without gas for
long periods. He urged that the system of providing two
cylinders should be restored.
16. Appearing on behalf of the Lt. Governor of the Islands
and the Local Administration, Mr. T.S. Doabia submitted that
steps had been taken by the Administration on war footing to
provide relief to those who had been devastated by the
Tsunami. He urged that having regard to the geographical
placing of the Islands the process of rehabilitation have taken
considerable time, but the Administration did not lack a sense
of urgency in rehabilitating the Tsunami-affected families. Mr.
Doabia submitted that there were certain things which were
beyond the control of the authorities, such as the placing of
more doctors and a Lady Doctor at Campbell Bay, but earnest
efforts were being made to address the problem.
17. Regarding the nature of houses being provided for
rehabilitation, Mr. Doabia submitted that the design had been
approved by experts, both local and central, belonging to the
Public Works Department and also the representatives of the
islanders themselves who were of the view that the same
would prove to be better than the traditional houses of the
islanders which were mainly made of wood. Mr. Doabia,
however, submitted that the matter could be re-examined in
respect of the houses which are yet to be built, but as far as
those which had been fully constructed, the same could not be
abandoned but would have to be utilized. Regarding
completion of the flooring of the houses already constructed
Mr. Doabia assured the Court that instructions would be given
to the local administration to complete the same as early as
possible.
18. As far as the problem of replacement of damaged boats
are concerned, Mr. Doabia submitted that many of the
traditional boats had been replaced by fibre glass boats at the
option of the islanders themselves, but in the case of boats
which are yet to be replaced a further option could be taken
from the affected fishermen. According to Mr. Doabia, the
fishermen have already been provided with nets to enable
them to commence fishing, which was their livelihood.
19. On the question of supply of drinking water, Mr. Doabia
pointed out that in the islands there were only a few rivers
which could not be relied upon for supply of fresh water. On
the other hand, the people of the islands depended mainly on
wells and ground water harvesting. According to him the local
administration had undertaken a programme to clean out and
recharge the wells which had been affected by the Tsunami.
However, the local administration was willing to abide by any
instructions that may be given in this regard to make potable
drinking water available to the Tsunami-affected families.
With regard to the continuance of dry rations, Mr. Doabia
submitted that by virtue of the interim order passed in this
matter, the supply of dry rations was being continued, but
some of the families were no longer in need of such rations. In
this regard also Mr. Doabia submitted that the local
administration would have no hesitation to continue to provide
such relief in terms of the interim order passed by this Court.
20. The submissions made on behalf of the appellant and the
Local Government indicate that although the work of
rehabilitation of the Tsunami victims has been taken up in all
earnest, there is still a good deal which is required to be done
to ameliorate the misery of the victims.
21. Each of the problems elaborated by Mr. Gonsalves needs
to be dealt with to enable the victims of the Tsunami families
to cope with the disaster. The monsoons are due at any time
to add to the misery of those who were rendered homeless by
the Tsunami. Spread of diseases is a serious threat as also
the spectrum of hunger.
22. In these circumstances we feel that the following interim
directions may be given till the appeal itself can be taken up
for hearing on wider issues, namely :-
(i) The Local Administration under the guidance
of the Lt. Governor shall take immediate steps
to arrange for rain water harvesting and
construction of cemented tanks for capturing
rain water during the monsoons for later use
by the inhabitants of the different islands. In
addition, immediate steps should also be taken
to clean out the existing wells which had been
polluted by the Tsunami and to recharge the
same, so that the monsoonal rains can be fully
utilized. If necessary, fresh wells may also be
dug to augment the existing supply of water.
(ii) The dry rations being supplied to the Tsunami
affected families be continued till the month of
October 2007 or until the appeal is finally
disposed of, whichever is earlier. While
distributing the free rations the local
administration may after holding an enquiry
discontinue such supply to those families
which were no longer in need of such help.
The Administration may also consider,
providing two cylinders of cooking gas in place
of one cylinder as is being currently supplied.
(iii) The fishermen who are still to receive
replacement for the loss of their fishing boats
should be provided with such replacement as
quickly as possible after obtaining fresh
options from them as to the type of boat which
they would like to have.
(iv) The Local Administration should arrange for
the setting up of the cold-storages at Campbell
Bay and Car Nicobar.
(v) Rethinking should be undertaken with regard
to the design of the shelters to be provided to
the victims of the Tsunami upon considering
the climatic conditions in the Islands. The
possibility of construction of houses/huts in
the traditional manner and design, using
climate-friendly material, such as timber,
should be explored.
(vi) The Local Administration should seriously
consider the placement of more doctors,
including a lady doctor in Campbell Bay and
Car Nicobar, whose services could also be
utilized in the other inhabited Islands where
there are no medical facilities.
(vii) The State Legal Services Authority of the
Islands in collaboration with the High Court
Legal Services Authority of the Circuit Bench
of the Calcutta High Court at Port Blair may
consider the possibility of holding Lok Adalats
in Tsunami affected Islands, both in the
Andaman chain of Islands, such as Havelock,
Neil, Mayabunder, Diglipur and in the Nicobar
chain such as Campbell Bay, Kamorta,
Teressa, Katchal, Hut Bay and Car Nicobar
Islands to dispose of the cases which are
pending in respect of compensation and for
disposing of fresh claims, if any, in that
regard.
(viii) In respect of persons whose agricultural lands
remain submerged with sea water and are yet
to receive compensation, the Local
Administration may consider providing a job
for one member of the family in keeping with
the assurances given earlier.
Let the appeal be listed for final hearing in the second
week of August, 2007 on a non-miscellaneous day.
