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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 \026 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

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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

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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

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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

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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.