Reportable

IN THE SUPREME COURT OF  INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 2082  of 2011

Narmada Bachao Andolan                      ....Appellant  

Versus

State of Madhya Pradesh & Anr.                           ....Respondents

WITH

Civil Appeal Nos.2083-2097 of 2011

State of Madhya Pradesh                                           ....Appellant  

Versus

Narmada Bachao Andolan & Anr.                                   ...Respondents                          

AND

Civil Appeal Nos. 2098-2112 of 2011

Narmada Hydro-Development Corporation                     ...Appellant

Versus

Narmada Bachao Andolan & Ors.                                 …Respondents

WITH

Civil Appeal No. 2115  of 2011

State of Madhya Pradesh            ..Appellant  

Versus

Narmada Bachao Andolan & Anr.                   ..Respondents

AND  

Civil Appeal No. 2116  of 2011

Narmada Hydro Electric Development Corporation Limited            ..Appellant  

Versus

Narmada Bachao Andolan & Anr.                   ..Respondents

J U D G M E N T

Dr. B. S. CHAUHAN, J.

1. All  these  appeals  relate  to  the  establishment  of  the  

Omkareshwar  Dam on  the  Narmada  river  in  Madhya  Pradesh.  As  

these appeals are inter-connected and have been filed against interim  

orders passed by the High Court in the same writ petition, they have  

been  heard  together  and  disposed  of  by  a  common  judgment.  

However, for convenience Civil Appeal Nos. 2115-2116 of 2011 are  

dealt with first.    

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Civil Appeal Nos. 2115-2116  of 2011

2. These  appeals  have been preferred against  the  judgment  and  

order dated 21.2.2008 passed by the High Court of Madhya Pradesh at  

Jabalpur  in  Writ  Petition  No.  4457  of  2007,  ‘Narmada  Bachao  

Andolan v. State of Madhya Pradesh & Anr.’, wherein the High Court  

as an interim measure,  has issued directions, inter-alia,  for allotment  

of  agricultural  land  to  the  displaced  persons  in  lieu  of  the  land  

acquired for construction of the dam  in terms of the Rehabilitation  

and Resettlement  Policy  (hereinafter  called  as  ‘R & R Policy’)  as  

amended on 3.7.2003. The High Court direction applied even to those  

oustees who had already withdrawn the compensation,  if such oustees  

opt   for  such  land  and  refund  50%  of  the  compensation  amount  

received  by  them.  The  balance  cost  of  the  allotted  land  would  be  

deposited by the allottees in 20 equal yearly installments as stipulated  

in clause (5.3) of the R & R Policy, and  to treat a major son of the  

family  whose  land  has  been  acquired  as  a  separate  family  for  the  

purpose of  allotment of agricultural land.  

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3. FACTUAL MATRIX :  

Facts  and  circumstances  giving  rise  to  these  cases  are  as  

follows:

(A)   The  Narmada  river  starts  at  Amarkantak.   It  flows  through  

Madhya  Pradesh  for  1077 km, then  forms  a  common  boundary  in  

Maharashtra for 74 km (35 km with MP and 39 km with Maharashtra)  

and  then  passes  through  Gujarat  for  161  km  before  meeting  the  

Arabian Sea after a total length of 1312 km.  The Narmada Water  

Disputes  Tribunal  apportioned  the  water  in  the  Narmada  between  

Madhya  Pradesh,  Gujarat,  Maharashtra  and  Rajasthan,  subject  to  

review after 45 years.  

(B) The State of Madhya Pradesh, conducted a survey in 1955 for  

the establishment  of  hydro-power projects  in the Narmada basin at  

different sites including Barwaha (Omkareshwar Project).   In 1983,  

Narmada  Valley  Development  (Irrigation)  Department  (hereinafter  

called NVD) was set up and further studies were conducted for the  

establishment of  hydro-power projects.   

(C) The Omkareshwar Dam - an intra-state project for  generating  

520  mega watts of  power,  which also involved the irrigation of  1.47  

lakh   hectares  of  agricultural  land,  was  approved  by  the  State  

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Government, with an assessment that on the completion of the project,  

30 villages would  be submerged at the full reservoir level i.e. 196.60  

mtrs.  

(D)  The Government of Madhya Pradesh framed a rehabilitation and  

resettlement policy in 1985 (hereinafter called `R & R Policy’) for the  

oustees of all the Narmada projects in the State.  The said policy was  

amended from time to time as is  evident from the R & R Policies  

dated: 9th June, 1987; 5th September, 1989; 7th June, 1991; and 27th  

August 1993.   

        The said policy provided for the allotment of a minimum of 2  

hectares of agricultural land; irrigation facilities at government cost;  

grant-in-aid for small and marginal farmers and SC/ST families;  and  

to  meet   the  entire  cost  of  the  allotted  land.  The  policy  further  

provided that the  allotment of agricultural land would be carried out  

much in advance, before dam construction reached  crest level.  The  

land required for allotment would be procured in the common area  

from the farmers having holdings of  more than 4 hectares of land.   

The State authorities obtained environmental clearance for the  

Omkareshwar project from the Ministry of Environment and Forest on  

13.10.1993.   The  Ministry  of  Welfare  granted  clearance  on  

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8.10.1993.   The  Planning  Commission  also  granted  clearance  on  

condition of compliance with welfare and environmental clearances  

vide order dated 25.5.2001.  

The  Central  Electricity  Authority  accorded  techno-economic  

clearance under the provisions of Electricity (Supply) Act, 1948 on  

24.7.2001. The Government of India approved and granted financial  

concurrence  from  Public  Investment  Board  of  the  Planning  

Commission  for  this  project  on  17.5.2002.   Forest  clearance  was  

granted on 20.8.2004 under the provisions of Section 2 of the Forest  

(Conservation) Act, 1980 for the diversion of 5829 hectares of forest  

lands.  Therefore, there had been various statutory and non-statutory  

clearances from the authorities.  

(E) The R & R Policy further stood amended on 3.7.2003, to the  

effect that agricultural land would be offered to the oustees “as far as  

possible”; and not to those who would make application in writing to  

receive compensation for their acquired land.

(F) Construction of the Omkareshwar dam began in 2002 and stood  

completed in  October,  2006.  A large  number of  families  had been  

uprooted  on construction of the dam upto its 190 mtrs. height. For the  

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dam site, a huge area of land had been acquired under the provisions  

of the Land Acquisition Act, 1894 (hereinafter called as ‘Act 1894’).  

The displaced persons were allegedly not offered the land under the R  

& R Policy, as amended on 3.7.2003, rather compensation for their  

land was deposited in their accounts.  

(G) Narmada  Bachao  Andolan,  respondent  No.1  (hereinafter  

referred  to  as  `NBA’),  an  action  group,  had  been  espousing  the  

grievances of displaced persons by filing Public Interest  Litigations  

(hereinafter called `PIL’) before the High Court/further to this Court  

from time to time and a large number of orders had been passed by the  

courts to redress the grievances of the oustees.  When  the decision  

was  taken to  raise  the  height  of  the  dam,  NBA filed  writ  petition  

No.4457 of 2007 before the High Court seeking a number of reliefs,  

inter-alia,  to stop all eviction; directions for serving of life supplies  

such as drinking water and electricity; not to take any other coercive  

measures, to stop closure of the radial gates of the Omkareshwar dam  

above crest level of EL 179.60 M; and  to stop the  blocking of the  

sluice  gates  below  crest  level,  until  all  Project  Affected  Families  

(hereinafter  called  `PAFs’)   were  rehabilitated  as  per  the  R  &  R  

Policy.  Further  reliefs  sought  included  the  issuance  of  appropriate  

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directions  for  an assessment  by  the  Grievance  Redressal  Authority  

(hereinafter called `GRA’) for the Omkareshwar Project of the status  

of relief and rehabilitation of the oustees affected at Full Reservoir  

Level (hereinafter called `FRL’) and Back Water Level (hereinafter  

called `BWL’) within a stipulated period.  

(H) During the pendency of the writ  petition in pursuance of the  

orders passed by the High Court from time to time, a large number of  

reports/interim reports  were furnished by the authorities  concerned.  

The High Court  after  considering the said reports  and submissions  

advanced on behalf of the parties passed the impugned judgment and  

order  dated  21.2.2008.  The  High  Court  issued  a  large  number  of  

directions as interim measures, including the direction for allotment of  

land in lieu of land acquired and to treat the major sons of the family,  

as independent families for the purpose of allotment of agricultural  

land.   Hence, these appeals.   

4. S/Shri Ravi Shankar Prasad and P.S. Patwalia, learned senior  

counsel  appearing for the appellants   have submitted that the High  

Court ought not to have entertained the writ petition as it did not have  

material  facts/particulars  disclosing any cause  of  action to the  writ  

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petitioners even in the PIL.  Not a single order passed by any statutory  

authority  had been challenged and the writ  petition was filed after  

inordinate delay without furnishing any explanation for the same. The  

GRA had been constituted to consider individuals’ grievances and not  

a single oustee approached the GRA before filing of the writ petition.  

The Court ought to have relegated the parties for redressal  of their  

grievances  to  the  GRA.  An  efficacious  alternative  remedy  was  

available to the oustees.  The High Court further committed an error  

in issuing directions for allotment of land in lieu of land even in those  

cases where the oustees have voluntarily accepted the compensation  

amount; that such oustees would deposit 50% of the said amount and  

would be entitled to allotment of land. It is further submitted that the  

High Court erred in treating the major son of  such an oustee as a  

separate  family  for  the  purpose  of  allotment  of  agricultural  land,  

though he did not have any independent right to claim compensation  

for  the  land  acquired.   Land  for  allotment  to  such  oustees  is  not  

available. The State authorities cannot be asked to do an impossible  

task.  The  State  authorities  have  provided  a  package  for  their  re-

settlement  and rehabilitation,  giving  all  facilities  and financial  aid.  

Making the  allotment  of  land  mandatory   in  lieu  of  land acquired  

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would force the State to displace other persons to settle such oustees,  

which  is  impermissible  in  law.   In  case  each  major  son  of   such  

oustees is treated as a separate family, acquisition of his family land  

would prove to be a bonanza for such persons as the tenure holding of  

such a family would multiply several  times and State would suffer  

irreparable  losses.  The  State  Government  vide  amendments  of  the  

Revenue Code, reduced the area of the grazing land, but the land so  

made  available  is  not  enough  to  meet  the  needs  of  such  a  large  

number  of  oustees.   Cases  decided  by  this  Court,  earlier  on  two  

occasions, have no bearing on the issue in these cases, as the true and  

correct facts could not be brought to the notice of this Court.   Most of  

the  oustees  had  taken  benefit  of  the  Special  Rehabilitation  Grant  

(hereinafter  called  as  `SRG’)  and  withdrawn  the  amount  and  

surrendered the possession of their land.  The SRG amount has been  

more than the compensation amount for acquisition of land.  The High  

Court did not issue any direction in regard to the amount taken by the  

oustees as SRG, either to refund the same or for adjustment of the  

same. Therefore,  directions issued by the High Court are liable to be  

set aside.  The appeals deserve to be allowed.  

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5. On the contrary, Dr. Rajeev Dhavan, learned senior counsel and  

Shri  Sanjay  Parekh,  Advocate  representing  the  oustees,  have  

vehemently  opposed  the  appeals  contending  that  displacement  of  

oustees without proper implementation of the rehabilitation scheme is  

violative of Article 21 of the Constitution of India.  In a matter of this  

nature where a very large number of illiterate, inarticulate and poor  

people  have  suffered  at  the  hands  of  the  statutory  authorities,  no  

technical objections e.g. want of proper pleadings or delay etc., can be  

allowed  to  be  raised.   Statutory  and non-statutory  authorities  have  

granted  clearances  for  the  Omkareshwar  Dam Project  on  the  clear  

understanding  that  the  State  authorities  would  carry  out  and  

implement, in letter and spirit, all the terms and conditions of the R &  

R Policy. Therefore, it is not permissible for the State authorities to  

say that it would not strictly adhere to the terms incorporated therein.  

The appellant-State and its instrumentalities never made any serious  

attempt to acquire land for such oustees and the compensation amount  

has been deposited in  respective accounts of the oustees. Not a single  

oustee  had  ever  opted  for  compensation  for  land  in  lieu  of  land  

acquired.  Amendment  made in the R & R Policy vide order  dated  

3.7.2003 is ultra vires and illegal and is liable to be ignored for the  

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reason  that  the  R  &  R   Policy  had  been  approved  by  the  State  

Government,  though  the  amendment  had  not  undergone  the  same  

process. If a major son of the family, whose land has been acquired, is  

not treated as a ‘separate family’ for the purpose of allotment of land  

for land acquired,  the definition of  ‘displaced family’ under clause  

2(b) of the R & R Policy would be rendered nugatory. Therefore, such  

an interpretation is not permissible. This Court, while interpreting the  

other schemes in respect of Narmada Projects itself has given effect to  

the said policy and directed for allotment of land for land acquired and  

upheld the entitlement of the major son of an oustee to an independent  

allotment  of  agricultural  land.  Denial  of  such  a  right  would  be  

discriminatory and thus violative of the equality clause enshrined in  

Article 14 of the Constitution of India. Thus, the appeals lack merit  

and are liable to be dismissed.

6. We have considered the rival submissions made by learned counsel  

for the parties and perused the record.  

PLEADINGS:  

7.     It  is a settled proposition of law that  a party has  to plead its  

case  and  produce/adduce   sufficient  evidence  to  substantiate  the  

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averments  made  in  the  petition  and  in  case  the  pleadings  are  not  

complete the Court is under no obligation to entertain the pleas.  

         In Bharat Singh & Ors. v. State of Haryana & Ors., AIR  

1988 SC 2181, this  Court has observed as under:-  

"In  our opinion,  when a point,  which  is   ostensibly  a  point  of  law  is  required  to  be  substantiated  by  facts,   the  party raising  the  point,   if he is  the  writ petitioner,  must  plead   and  prove  such facts  by evidence which must   appear from the  writ  petition  and  if  he  is  the   respondent,   from  the  counter   affidavit. If  the  facts are not pleaded or the evidence in support   of such facts is not annexed to the writ petition or  the  counter-affidavit,  as  the  case  may  be,  the  Court  will  not  entertain  the  point.  There  is  a   distinction between a hearing under the Code of   Civil Procedure and a writ petition or a counter- affidavit.  While  in  a  pleading,  i.e.  a  plaint  or   written statement,  the facts and not the evidence  are required to be pleaded.  In a writ petition or   in the   counter affidavit, not only the facts but also   the  evidence  in  proof  of  such  facts  have  to  be  pleaded and annexed to it."         (Emphasis added)

8.       A similar view has been reiterated by this Court in Larsen &  

Toubro Ltd.  & Ors.  v.  State  of  Gujarat  & Ors.,  AIR 1998 SC  

1608; M/s Atul Castings Ltd. v. Bawa Gurvachan Singh, AIR 2001  

SC 1684; and  Rajasthan Pradesh V.S. Sardarshahar  & Anr. v.  

Union of India & Ors., AIR 2010 SC 2221.

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9. Pleadings  and particulars  are  required  to  enable  the  court  to  

decide the rights of the parties in the trial.  Thus, the pleadings are  

more to help the court in narrowing the controversy involved and to  

inform the parties concerned to the question(s) in issue, so that the  

parties may adduce appropriate evidence on the said issue. It is settled  

legal proposition that “as a rule relief not founded on the pleadings  

should not be granted.”  Therefore,  a decision of a case cannot be  

based on grounds outside the pleadings of the parties.    

           The object and purpose of pleadings and issues is to ensure  

that the litigants come to trial with all issues clearly defined and to  

prevent cases being expanded or grounds being shifted during trial.  If  

any factual or legal issue, despite having merit, has not been raised by  

the  parties,  the  court  should  not  decide  the  same  as  the  opposite  

counsel  does  not  have  a  fair  opportunity  to  answer  the  line  of  

reasoning adopted in that regard. Such a judgment may be violative of  

the principles of natural justice. (Vide: Ram Sarup Gupta (dead) by  

L.Rs. v. Bishun Narain Inter-College & Ors.,  AIR 1987 SC 1242;  

and  Kalyan Singh  Chouhan v.  C.P.  Joshi,  AIR 2011  SC 1127).

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10.        It cannot be said that the rules of procedural law do not apply  

in PIL.  The caution is always added that every technicality in the  

procedural law is not available as a defence in such  proceedings when  

a matter of grave  public importance is for consideration before the  

Court. (Vide: Rural Litigation and Entitlement Kendera v. State of  

U.P., AIR 1988 SC 2187).  

11. Strict rules of pleading may not apply in PIL, however, there  

must be sufficient material in the petition on the basis of which Court  

may proceed. The PIL litigant has to lay a factual foundation for his  

averments  on  the  basis  of  which  such a  person  claims the  reliefs.  

Information  furnished  by  him should  not  be  vague  and  indefinite.  

Proper  pleadings  are  necessary  to  meet  the  requirements  of  the  

principles of natural justice. Even in PIL, the litigant cannot approach  

the Court to have a fishing or roving enquiry.  He cannot claim to  

have a chance to establish his claim.  However, the technicalities of  

the rules of pleading cannot be made  applicable vigorously. Pleadings  

prepared  by  a  layman  must  be  construed  generously  as  he  lacks  

standard of accuracy and precision particularly when a legal wrong is  

caused to a determinate class. (Vide: A. Hamsaveni & Ors. v. State  

of Tamil Nadu & Anr., (1994) 6 SCC 51; Ashok Kumar Pandey v.  

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State  of  West  Bengal,  AIR 2004 SC 280;  Prabir  Kumar Das v.  

State of Orissa & Ors., (2005) 13 SCC 452; and A. Abdul Farook v.  

Municipal Council, Perambalur, (2009) 15 SCC 351).

12.     In the instant case, in the writ petition, an impression had been  

given, that some drastic steps would be taken by the authorities which  

would cause great hardship to a large number of persons. However,  

the writ petition did not disclose the factum of  how many persons had  

already vacated their houses and handed over the possession of their  

land. It was contended that urgent  measures were required to be taken  

by the Court in order to mitigate the sufferings of the people.  In view  

of the fact that there was no material before the Court to adjudicate  

upon the  issues  involved  therein,  the  High Court  passed  the  order  

dated  30.3.2007  directing  the  GRA  to  submit  the  report  on  the  

rehabilitation work already done and still to be done; and to disclose  

the  consequences  of  the  closure  of  radial  gates  of  the  dam  and  

blocking of the sluice gate of the dam on the people residing in the  

area which would be submerged.  In pursuance of the said order, the  

GRA submitted  the  report  dated  7.4.2007,  explaining that  a  huge  

amount  of  several  thousand  crores  of  rupees  had  already  been  

invested.   The  SRG  had  already  been  disbursed.   Out  of  a  total  

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number of 4513 families to be adversely affected by the project, 2787  

families  had already  shifted and 1726 families  remained there.  An  

amount  of  Rs.9924  lacs  had  already  been  disbursed  among  the  

claimants and only a sum of Rs.589 lacs remained to be disbursed.  

The report further explained that land in lieu of land acquired would  

be allotted to oustees “as far as possible” and as most of the oustees  

had accepted the compensation, it was not required on the part of the  

State to allot the land for land acquired.  The other benefits of the R &  

R Policy had already been given. In fact, it is in view of this report,  

the  High  Court  started  examining  the  grievances  of  the  oustees.  

Several  reports  were submitted by the GRA before the High Court  

from time to time and whatever has been disclosed in those reports  

provided the basis for raising further queries and that, in fact, became  

part of pleadings of the case.  In fact, the present appellants had been  

asked to lay factual foundation to adjudicate the issues raised by the  

writ petitioners.  

13. In view of the above, it is evident that there were no pleadings  

before the High Court on the basis of which the writ petition could be  

entertained/decided.  Thus, it was liable to be rejected at the threshold  

for  the  reason  that  the  writ  petition  suffered  for  want  of  proper  

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pleadings  and  material  to  substantiate  the  averments/allegations  

contained therein.  Even in the case of a PIL, such a course could not  

be available to the writ petitioners.  

DELAY/LACHES:

14.     In  the  instant  cases,  the  construction  of  the  dam started  in  

October 2002 and was completed in October 2006.  No objection had  

ever been raised by NBA at any stage.  The Narmada Development  

Authority  vide  order  dated  28.3.2007  gave  permission  to  National  

Hydraulic  Development  Corporation to raise the water  level  of  the  

dam to 189 meters upon showing that rehabilitation of oustees of 5  

villages adversely affected at 189 meters, had already been completed.  

The writ petition was filed praying for restraining the appellants from  

closing the sluice gates of the dam contending that resettlement and  

rehabilitation was not complete.  There was no explanation as to under  

what circumstances the Court had been approached at such belated  

stage.  

15.    In  Narmada  Bachao  Andolan  v.  Union  of  India  & Ors.,  

(2000) 10 SCC 664, (hereinafter called as `Narmada Bachao Andolan-

I’), this Court dealt with a similar issue of laches and observed that in  

spite of the fact that the clearance for construction of the dam was  

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given in 1987, the same was challenged in 1994 on the ground that  

there  was  a  lack  of  studies  available  regarding  the  environmental  

aspects and also because of seismicity. Thus, the clearance should not  

have  been granted.   The  rehabilitation  package was dissimilar  and  

there  had  been  no  independent  study  or  survey  done  before  the  

decision to undertake the project was taken and construction started.  

This Court held that clearance and undertaking to construct the dam  

had been given and hundreds of crores of rupees had already been  

invested, before the writ petitioner had chosen to file the writ petition  

in 1994. Thus, the petitioner was guilty of laches in not  approaching  

the court at an earlier point of time.  The Court, however, observed as  

under:  

“When  such  projects  are  undertaken  and  hundreds of crores of public money is spent, any  individual  or  organisations  in  the  garb  of  PIL  cannot  be  permitted  to  challenge  the  policy   decision taken after a lapse of time. It is against   the  national  interest  and  contrary  to  the  established  principles  of  law  that  decisions  to   undertake developmental projects are permitted to  be  challenged  after  a  number  of  years  during  which period public money has been spent in the   execution of the project…………

This Court has entertained this petition with a   view  to  satisfy  itself  that  there  is  proper   implementation  of  the  relief  and  rehabilitation   measures  ………….   In  short,  it  was  only  the   concern  of  this  Court  for  the  protection  of  the  fundamental rights of the oustees under Article 21   of  the  Constitution  of  India  which  led  to  the   

19

entertaining  of  this  petition.  It  is  the  relief  and  rehabilitation measures that this Court is really   concerned with and the petition in regard to the  other issues raised is highly belated.”  (Emphasis  added)  

In State of Maharashtra v. Digambar, (1995) 4 SCC 683, this  

Court had taken a similar view.   

16. In fact for redressal of any grievance  regarding implementation  

of the R & R Policy, the  oustees ought to have approached the GRA.  

There  is  nothing  on  record  to  show  how  many  oustees  remained  

unsatisfied/aggrieved of the orders passed by GRA till the filing of the  

writ petition.  

17.     Thus, in view of the above, the High Court ought not to have  

examined  any  issue  other  than  relating  to  rehabilitation  i.e.  

implementation of the R & R Policy.   

ALTERNATIVE REMEDY:

18.   While  dealing  with  a  similar  issue  in  Narmada  Bachao  

Andolan v. Union of India & Ors.,  (2005) 4 SCC 32, (hereinafter  

called  as  `Narmada  Bachao  Andolan-II’),  this  Court  observed  as  

under:

20

“Several contentions involving factual dispute   had, we may notice, not been raised before GRA.   GRA had been constituted with a purpose, namely,   that the matters relating to rehabilitation scheme  must be addressed by it at the first instance. This   Court  cannot  entertain  applications  raising  grievances involving factual issues raised by the  parties.  GRA  being  headed  by  a  former  Chief   Justice  of the High Court would indisputably be  entitled to adjudicate upon such disputes. It is also  expected that the parties should ordinarily abide   by  such  decision.  This  Court  may  entertain  an  application  only  when  extraordinary  situation  emerges.”

19. Thus,  in  view  of  the  above,  the  High  Court  ought  to  have  

directed  the  oustees  to  approach  the  GRA  for  redressal  of  their  

grievances and if any person was further aggrieved of the directions  

issued by the GRA, he could have approached the High Court after  

full fledged  adjudication  of the factual issues by the GRA.   

AMENDMENT OF R & R POLICY:

20. There are claims and counter-claims on the issue as to whether  

the  validity  of  the  amendment  of  the  R  &  R  Policy  was  under  

challenge  before  the  High  Court.  However,  it  is  evident  from the  

pleadings that the validity of the amendment dated 3.7.2003 had been  

raised  while  filing  the  rejoinder  affidavit.  The  rejoinder  affidavit  

reveals  that  as  the  R & R Policy  had been approved  by the  State  

21

Government  and  statutory  and  non-statutory  clearances  had  been  

obtained on the basis of the  R & R Policy,  the amendment  dated  

3.7.2003  ought  to  have  been  brought  for  the  approval  of  the  

authorities who had granted approval at initial stage. The amendment  

cannot be given effect to.  The impugned judgment makes it explicit  

that the issue had been raised and only taken note of by the Court but  

not decided.   

21. The appellants have placed documents on record to show  that  

amendment in issue had been duly approved by the Cabinet  of the  

Madhya  Pradesh  government  and  suggestion  has  been  made  that  

amendment  did  not  require  approval  of  the  authorities  who  had  

granted clearances. It has been opposed by the respondents.  

22. In case a plea is raised and not considered properly by the court  

the remedy available to the party is to file a  review petition.  (Vide:  

State of Maharashtra v.  Ramdas Shrinivas Nayak & Anr.,  AIR  

1982 SC 1249;  Transmission Corporation of A.P. Ltd & Ors.  v.  

P.  Surya  Bhagavan, AIR  2003  SC  2182;  and   Mount  Carmel  

School Society v. DDA, (2008) 2 SCC 141).

22

23. Be  that  as  it  may,  in  view  of  the  fact  that  neither  the  writ  

petitioner asked the High Court to quash  the said amendment dated  

3.7.2003, nor the court has suo motu quashed it, nor the writ petitioner  

has  filed  Special  Leave  Petition  raising  the  said  point,  it  is  not  

permissible for us to deal with the issue.  

LAND ACQUISITION AND REHABILITATION: Article 21:  

24. It is desirable for the authority concerned to ensure that as far  

as practicable  persons who had been living and carrying on business  

or  other  activity  on  the  land  acquired,  if  they  so  desire,  and  are  

willing to purchase and comply with any requirement of the authority  

or the local body, be given a piece of land on terms settled with due  

regard  to  the  price  at  which   land  has  been  acquired  from them.  

However,  the  State  Government  cannot  be  compelled  to  provide  

alternate  accommodation  to  the  oustees  and  it  is  for  the  authority  

concerned   to  consider  the  desirability  and feasibility  of  providing  

alternative land considering the facts and circumstances of each case.  

In  certain  cases,  the  oustees  are  entitled  to  rehabilitation.  

Rehabilitation  is  meant  only  for  those  persons  who  have  been  

rendered destitute because of a loss of residence or livelihood as a  

consequence  of  land  acquisition.  The  authorities  must  explore  the  

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avenues of rehabilitation by way of employment, housing, investment  

opportunities, and  identification of alternative lands. “A blinkered  

vision of development, complete apathy towards those who are highly  

adversely  affected  by  the  development  process  and  a  cynical  

unconcern for the enforcement of the laws lead to a situation where  

the  rights  and  benefits  promised  and  guaranteed  under  the  

Constitution hardly ever reach the most marginalised citizens.”  For  

people whose lives and livelihoods are intrinsically connected to the  

land,  the economic and cultural  shift  to  a  market  economy can be  

traumatic.

(Vide: State of U.P. v. Smt. Pista Devi & Ors., AIR 1986 SC 2025;  

Narpat Singh etc. etc. v. Jaipur Development Authority & Anr.,  

AIR 2002 SC 2036; Special Land Acquisition Officer, U.K. Project  

v. Mahaboob & Anr., (2009) 14 SCC 54;  Mahanadi Coal Fields  

Ltd. & Anr. v. Mathias Oram & Ors., JT (2010) 7 SC 352; and Brij  

Mohan & Ors. v. Haryana Urban Development Authority & Anr.,  

(2011) 2 SCC 29).

25. The Fundamental Right of the farmer to cultivation is a part of  

right to livelihood. “Agricultural land is the foundation for a sense of  

security and freedom from fear. Assured possession is a lasting source  

24

for peace and prosperity.”  India being a predominantly  agricultural  

society, there is a “strong linkage between the land and the person’s  

status in the social system.”   However, in case of land acquisition,  

“the plea of deprivation of right to livelihood under Article 21 is  

unsustainable.”  (Vide: Chameli Singh & Ors. v. State of U.P. &  

Anr., AIR 1996 SC 1051; and Samatha v. State of A.P. & Ors., AIR  

1997 SC 3297).

26. This Court has consistently held that Article 300-A is not only a  

constitutional right but also a human right. (Vide: Lachhman Dass v.  

Jagat Ram & Ors., (2007) 10 SCC 448;  and Amarjit Singh & Ors.  

v. State of Punjab & Ors. (2010) 10 SC 43).  

27. However, in  Jilubhai Nanbhai Khachar & Ors. v. State of  

Gujarat & Anr., AIR 1995 SC 142, this Court held:

“Thus,  it  is  clear  that  right  to  property  under   Article 300-A is not a basic feature or structure of   the Constitution. It is only a constitutional right… …The  principle  of  unfairness  of  the  procedure   attracting  Article  21  does  not  apply  to  the  acquisition  or  deprivation  of  property  under   Article  300-A  giving  effect  to  the  directive   principles….”   

28. This Court in Narmada Bachao Andolan – I  held as under:

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“62.  The  displacement  of  the  tribals  and  other  persons would not per se result in the violation of   their fundamental or other rights. The effect is to   see  that  on their  rehabilitation  at  new locations   they  are  better  off  than  what  they  were.  At  the   rehabilitation sites they will have more and better   amenities  than those they enjoyed in their  tribal   hamlets.  The  gradual  assimilation  in  the   mainstream of the society will lead to betterment   and progress.”

29. In  State  of  Kerala  &  Anr.  v.  Peoples  Union  for  Civil  

Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46,  this Court  

held as under:  

“102. Article 21 deals with right to life and liberty.   Would it bring within its umbrage a right of tribals   to  be  rehabilitated  in  their  own  habitat  is  the   question?  103. If  the  answer  is  to  be  rendered  in  the   affirmative, then, for no reason whatsoever even  an  inch  of  land  belonging  to  a  member  of   Scheduled  Tribe  can  ever  be  acquired.   Furthermore, a distinction must be borne between   a right  of rehabilitation required to be provided  when the land of  the  members  of  the  Scheduled   Tribes  are  acquired  vis-à-vis  a  prohibition  imposed upon the State from doing so at all.”  

Thus, from the above referred to judgments, it is evident that  

acquisition  of  land  does  not  violate  any  constitutional/fundamental  

right  of  the  displaced  persons.  However,  they  are  entitled  to  

26

resettlement  and  rehabilitation  as  per  the  policy  framed  for  the  

oustees of the concerned project.  

FINDINGS OF THE HIGH COURT:  

30. The  High  Court  after  considering  the  submissions  and  

examining the documents on record, so far as the issue of land in lieu  

of land acquired is concerned, came to the following conclusions:

(i) An area of 2508.14 hectares of agricultural land was required  

for allotment to the displaced families as per the R & R Policy for the  

Omkareshwar Project. Such land was proposed to be acquired from  

big cultivators having more than 4 hectares of land in the command  

area  of  the  project  under Section 11(4)  of  the   Madhya Pradesh  

Pariyojana  Ke  Karan  Visthapit  Vyakti  (Punahsthapan)  Adhiniyam,  

1985, (herein after called `Adhiniyam 1985’).   

(ii) Vide order dated 4th March, 1998, the area of the grazing land  

(required under the M.P. Land Revenue Code) was reduced from 10  

per cent to 5 per cent in every village. Subsequently, vide order dated  

19th September, 2002, area of grazing land was further reduced to 2  

per cent so that some part of such land could be allotted to the oustees  

of the project.  

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(iii) No efforts had been made by the Government for allotment of  

land in lieu of land acquired to the displaced families under the R & R  

Policy  as amended on 3.7.2003.   

(iv) The State instrumentalities had not made any effort to purchase  

private lands, for allotment to oustees under the R & R Policy.  On the  

contrary, the Government made available a huge area of land required  

for a Special Economic Zone by acquiring private land under the Act  

1894 for setting up of industries in the State of Madhya Pradesh.

(v) The  submission  of  the  State  authorities  that  on  account  of  

scarcity of cultivable land in the State, it was impossible for the State  

Government  to  purchase  private  land  for  allotment,  was  not  

acceptable.  

(vi) Only 11 per cent of the displaced families were able to purchase  

private agricultural land themselves without any aid or assistance of  

the State authorities.  

(vii) None  of  the  oustees  has  given  option  in  writing  to  receive  

compensation in lieu of land acquired.

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(viii) The  State  deposited  the  amount  of  compensation  in  the  

accounts of the oustees irrespective of whether they wanted land in  

lieu of land acquired.  

(ix) None  of  the  protections/facilities  provided  for  persons  

belonging to Scheduled Castes and Scheduled Tribes under the R & R  

Policy had been accorded.  The District Collector did not make any  

verification in regard to their claim for land in lieu of land acquired as  

required under the R & R Policy.   

(x) The  Government  had  not  made  any  attempt  to  provide  any  

grant-in-aid to cover up the gap between the amount of compensation  

and the actual cost of land available for the purpose, particularly to all  

displaced Scheduled Castes and Scheduled Tribes families.

(xi) The  State  authorities  had  hastily  proceeded  to  complete  the  

rehabilitation  process  and  started  the  power  project  of  the  

Omkareshwar Dam contrary to the assurances given under the said  

policy for Scheduled Castes and Scheduled Tribes families, as none of  

such oustees was interested in receiving compensation for agricultural  

land.

(xii)   Grant-in-aid  to  cover  up  the  difference  of  costs  of  the  land  

purchased  and  amount  of  compensation  was  not  paid  to  marginal  

29

farmers having upto 2 hectares of land,  as provided in the R & R  

Policy.  

31. We have to examine whether any of the findings recorded by  

the High Court on the issue of entitlement for land in lieu of land  

acquired suffers  from perversity  and thus,  warrants  interference  by  

this Court.

32. The  relevant  part  of  the  R  & R  Policy,  for  the  purpose  of  

determination of first issue, reads as under:

(I) Principles for rehabilitation of displaced families:

1. The aim of the State Government is that all displaced  

families  as  defined  hereinafter  would  after  their  

relocation and resettlement improve, or at least regain,  

their previous standard of living within a reasonable  

time.  

xx xx xx

4. Special  care  would  be  taken  of  the  families  of  Scheduled  Castes,  Scheduled  Tribes,  marginal  farmers and small farmers.

xx xx xx  

30

1.     The  displaced  families  would  be  encouraged  and  

assisted in purchase of lands from voluntary sellers of the  

host villages.

II.  -  State  Government  Policy  regarding  rehabilitation  and  resettlement  of        families affected due to submerging in Narmada    Projects:

1. Definitions:

(1.1) Displaced person:

a. Any person who has been ordinarily residing or carrying  

on any trade or vocation for his livelihood or has been  

cultivating land for at least one year before the date of  

publication of notification under Section 4 of the Land  

Acquisition  Act  in  the  area  which  is  likely  to  be  

submerged permanently or temporarily due to project.

                   xx                           xx                          xx

3. Allotment of Agricultural land:

xx xx xx  

3.2 (a) Every displaced family from whom more than  

25 percent of its land holding is acquired in revenue villages  

or forest villages shall be entitled to and as far as possible  

31

will be allotted land to the extent of land acquired from it,  

subject to the provision of para 3.2(b) below.

(b)       As far as possible, a minimum area of 2 hectares  

of  land would be  allotted  to  all  the  families  whose lands  

would be acquired irrespective of whether Government land  

is offered or private land is purchased for allotment.  Where  

more than 2 hec. of land is acquired from a family, it will be  

allotted equal  land as far as possible, subject to a ceiling  

of  8  hec.  (Portion  in  italics  was  added  vide  amendment  

dated 3.7.2003)

xx xx xx

5. Recovery of cost of allotted land:

(5.1) At least fifty per cent amount of compensation for the  

acquired land shall be retained as initial installment towards  

the payment of the cost of land to be allotted to the displaced  

family.   However,  if  a  displaced family  does not  wish to  

obtain land in lieu of the submerged land and wishes full   

payment  of  the  amount  of  compensation,  it  can do so by  

submitting  an  application  to  this  effect  in  writing  to  the  

32

concerned Land Acquisition Officer.  In such cases displaced  

families will have no entitlement over allotment of land and  

shall  be  paid  full  amount  of  compensation  in  one  

installment.  As option once exercised under this provision  

shall be final, no claim for allotment of land in lieu of the  

acquired land can be made afterwards. (Portion in italics was  

added vide amendment dated 3.7.2003).  

If  any  displaced  family  belonging  to  the  Scheduled  

Tribes, submits such an application, it  will  be essential to  

obtain  orders  of  the  Collector  who  will,  after  necessary  

enquiry,  certify  that  this  will  not  adversely  affect  the  

interests  of  the displaced family.   Such application of the  

Scheduled Tribes displaced families will be accepted only  

after the above said certification by the Collector.   

(5.2) ……………..

(5.3)  There will be no recovery of this loan for the first 2  

years.  Thereafter, the loan would be recovered in 20  

equal yearly installments.

(5.4) Grant-in-aid  would  be  paid  to  cover  up the  gap  

between the amount of compensation and the cost  

33

of  allotted  land  in  the  cases  where  the  cost  of  

allotted  land  is  more  than  the  amount  of  

compensation.   This  grant  would be payable  to all  

displaced  land  owning  Scheduled  Caste  and  

Scheduled  Tribe  families  and  other  families  losing  

upto 2 hec.  of land.  For other families from whom  

more  than  2  hec.  and  upto  8  hectares  of  land  is  

acquired,  grant-in-aid  in  addition  to  amount  of  

compensation will  be given by the Narmada Valley  

Development  Authority  on  the  rates  prescribed  

therein.                                     

POLICY DECISIONS:  

33. In State of Punjab & Ors. v. Ram Lubhaya Bagga etc. etc.,  

AIR 1998 SC 1703, this Court while examining the State policy fixing  

the rates for reimbursement  of medical expenses to the government  

servants held :  

“………When Government  forms its  policy,  it  is   based on a number of circumstances on facts, law   including constraints based on its resources. It is   also  based  on  expert  opinion.  It  would  be  dangerous  if  court  is  asked  to  test  the  utility,   

34

beneficial  effect  of  the  policy  or  its  appraisal   based  on  facts  set  out  on  affidavits.  The  court   would dissuade itself from entering into this realm  which  belongs  to  the  executive.  It  is  within  this   matrix that it is to be seen whether the new policy   violates Article 21 when it restricts reimbursement   on  account  of  its  financial  constraints……….  

   For  every  return  there  has  to  be  investment.  Investment  needs  resources  and  finances. So even to protect this sacrosanct right   finances are an inherent requirement. Harnessing  such resources needs top priority……..No State of   any country can have unlimited resources to spend   on any of its projects. That is why it only approves  its projects to the extent it is feasible.”  

34. The Court cannot strike down a policy decision taken by the  

Government merely because it feels that another decision would have  

been fairer or  more scientific  or logical  or  wiser.  The wisdom and  

advisability  of  the  policies  are  ordinarily  not  amenable  to  judicial  

review unless the policies are contrary to statutory or constitutional  

provisions or arbitrary or irrational or an abuse of power. (See: Ram  

Singh Vijay Pal Singh & Ors. v. State of U.P. & Ors.,  (2007) 6  

SCC 44; Villianur Iyarkkai Padukappu Maiyam v. Union of India  

& Ors., (2009) 7 SCC 561; and State of Kerala & Anr. v. Peoples’  

Union for Civil Liberties, Kerala State Unit & Ors., (Supra).

35

35. Thus,  it  emerges  to  be  a  settled  legal  proposition  that  

Government has the power and competence to change the policy on  

the basis of  ground realities.  A public policy cannot be challenged  

through PIL where the State Government is competent to frame the  

policy and there is no need for anyone to raise any grievance even if  

the policy is changed. The public policy can only be challenged where  

it offends some constitutional or statutory provisions.  

AS FAR AS POSSIBLE :

36. The  aforesaid phrase provides  for  flexibility,  clothing  the  

authority concerned with powers to meet special situations where the  

normal  process  of  resolution  cannot  flow smoothly.  The  aforesaid  

phrase can be interpreted as not being prohibitory in nature. The said  

words rather, connote a discretion vested in the prescribed authority. It  

is thus discretion and not compulsion.  There is no hard and fast rule  

in  this  regard  as  these  words  give  a  discretion  to  the  authority  

concerned.  Once  the  authority  exercises  its  discretion,  the Court  

should not interfere with the said discretion/decision unless it is found  

to  be  palpably  arbitrary.  (Vide:  Iridium  India  Telecom  Ltd.  v.  

Motorola Inc., AIR 2005 SC 514; and High Court of Judicature for  

Rajasthan v. Veena Verma & Anr., AIR 2009 SC 2938).  

36

37. Thus,  it  is  evident  that  this  phrase  simply  means  that  the  

principles are to be observed unless it  is not possible to follow the  

same in the particular circumstances of a case.  

 DOCTRINE OF IMPOSSIBILITY:

38. The  Court  has  to  consider  and  understand  the  scope  of  

application of the doctrines of “lex non cogit ad impossibilia” (the  

law does not compel a man to do what he cannot possibly perform);  

“impossibilium nulla obligatio est” (the law does not expect a  party  

to do the impossible); and impotentia excusat legem in the qualified  

sense that there is a necessary or invincible disability to perform the  

mandatory part of the law or to forbear the prohibitory. These maxims  

are akin to the maxim of Roman Law Nemo Tenetur ad Impossibilia  

(no  one  is  bound  to  do  an  impossibility)  which  is  derived  from  

common sense and natural equity and has been adopted and applied in  

law  from  time  immemorial.  Therefore,  when  it  appears  that  the  

performance  of  the  formalities  prescribed  by  a  statute  has  been  

rendered  impossible  by  circumstances  over  which  the  persons  

interested had no control, like an act of God, the circumstances will be  

taken as a valid excuse. (Vide:  Chandra Kishore Jha v. Mahavir  

37

Prasad  &  Ors.,  AIR  1999  SC  3558;  Hira  Tikkoo  v.  Union  

Territory, Chandigarh & Ors., AIR 2004 SC 3648; and  Haryana  

Urban Development Authority & Anr. v.  Dr. Babeswar Kanhar  

& Anr., AIR 2005 SC 1491).  

39. Thus, where the law creates a duty or charge, and the party is  

disabled  to  perform it,  without  any  fault  on  his  part,  and  has  no  

control over it,  the law will in general excuse him. Even in such a  

circumstance, the statutory provision is not denuded of its mandatory  

character because of  the supervening impossibility caused therein.  

LAND FOR LAND:

40. In Gramin Sewa Sanstha v. State of M.P. & Ors., 1986 Supp  

SCC 578,  this Court held :  

“2. We  are  also  informed  that  though  land  has   been earmarked by the State Government for re- settlement of the displaced tribals, such land is not   available because it is already occupied by other   persons who themselves will  be uprooted if such  land is acquired and made available for the tribals   displaced on account of the Hasdeo Bango Dam  Project. If this is true, the remedy might be worse  than the disease because in order to re-settle one   set  of  displaced  persons  the  State  Government   would be displacing another set  of persons. We  would,  therefore  direct  the  State  Government  to   consider  in  the  meanwhile  as  to  whether  the   

38

cultivable land at any other place or places can be   made available for the tribals who are displaced  on account of the present project.”         (Emphasis  added)

41. This Court in Narmada Bachao Andolan-I,  held as under:  

“58……….  when  the  removal  of  the  tribal   population  is  necessary  as  an  exceptional   measure,  they  shall  be  provided  with  land  of   quality  at  least  equal  to  that  of  the  land   previously  occupied  by  them and  they  shall  be   fully  compensated  for  any  resulting  loss  or   injury.  The  rehabilitation  package  contained  in   the Award of the Tribunal as improved further by   the  State  of  Gujarat  and the  other  States  prima  facie shows that the land required to be allotted to   the tribals is likely to be equal, if not better than   what  they  had  owned.”  (Emphasis added)                                                                                                                             

42. In  State  of  Kerala  v.  Peoples’  Union  for  Civil  Liberties  

(Supra), this Court held as under:

“121.  We  must  also  make  it  clear  that  while   allotting  land  to  the  members  of  the  Scheduled   Tribes,  the State cannot and must not allot them  hilly or other types of lands which are not at all   fit for agricultural purpose. The lands, which are  to  be allotted,  must  be  similar  in  nature to  the  land possessed by the members of the Scheduled   Tribes.  If  in the past,  such allotments have been  made,  as  has  been  contended  before  us  by  the   learned counsel for the respondent, the State must   allot  them  other  lands  which  are  fit  for  agricultural purposes.  Such a process should be  undertaken  and  completed  as  expeditiously  as   

39

possible  and  preferably  within  a  period  of  six   months from date.”                      (Emphasis added)  

43. The  issue  has  to  be  decided  taking  into  consideration  the  

totality of the circumstances. For deciding this issue, the terms and  

conditions  incorporated  in  the  Narmada  Water  Disputes  Tribunal  

Award (hereinafter called as `NWDT Award’) cannot be taken into  

consideration  for  the  simple  reason  that  the  Tribunal  had  been  

constituted under the provisions of Inter State Water Disputes Act,  

1956 (hereinafter called Act 1956), and Award had been given in a  

case  where several States, i.e., the States of Madhya Pradesh, Gujarat  

and Maharashtra were involved.  The said Award has no application  

in the instant cases  nor can it be a Bench Mark.  More so, in  the  

Sardar Sarovar Project, land for land was mandatory.  These cases are  

to be decided giving strict adherence to the R & R Policy, as amended  

on 3.7.2003, further considering that special care is to be taken where  

persons are oppressed and uprooted so that they are better off.  Our  

Constitution requires removal of economic inequalities and provides  

for provision of facilities and opportunities for a decent standard of  

living and  protection of economic interests of the weaker segments of  

the society and in particular Scheduled Castes and Scheduled Tribes.  

40

Every human being has a right  to improve his  standard of living.  

Ensuing  people  are  better  off  is  the  principle  of  socio-economic  

justice which every State is under an obligation to fulfill, in view of  

the provisions contained in Articles 37, 38, 39(a), (b), (e), (f), 41, 43,  

46 and 47 of the Constitution of India. (Vide: Murlidhar Dayandeo  

Kesekar v. Vishwanath Pandu Barde & Anr. (1995) Suppl. 2 SCC  

549; and N.D. Jayal & Anr. v. Union of India & Ors., AIR 2004 SC  

867).  

44. Mere payment of compensation to the oustees in such a case  

may not be enough. In case the oustee is not able to purchase the land  

just after getting the compensation, he may not be able to have the  

land at all.  

In  K. Krishna Reddy & Ors.  v.  Spl.  Dy.  Collector,  Land  

Acqn. Unit II,  LMD Karimnagar, AIR 1988 SC 2123, this Court  

expressed grave concern on the issue observing as under:

“….After all money is what money buys. What the   claimants  could  have  bought  with  the   compensation in 1977 cannot do in 1988. Perhaps,   not even half of it. It is  a common experience that   the purchasing power of rupee is dwindling with   rising  inflation…..The  Indian  agriculturists   generally have no avocation. They totally depend  upon land. If  uprooted, they will  find themselves   

41

nowhere. They are left high and dry. They have no  savings to draw. They have nothing to fall  back   upon. They know no other work.  They may even  face  starvation  unless  rehabilitated.”(Emphasis  added)

45. It is a matter of common experience that the “person interested”  

gets the actual amount of compensation in reference under Section 18  

and appeal under Section 54 of the Act 1894. Award made by the  

Land Acquisition Collector is merely an offer by the State through its  

agent.  The Collector acts in dual capacity. It is in fact, for this reason  

that local authority/company for whom the land is acquired  cannot  

question the Award of the Collector except on the ground of fraud,  

corruption or collusion, as provided under Section 50 of the Act 1894.  

The  Award  in  the  enquiry  by  the  Collector  is  merely  a  decision  

(binding only on the Collector) as to what sum shall be tendered to the  

owners of the lands, and that, if a judicial ascertainment of value is  

desired by the owner, he can obtain it by requiring the matter to be  

referred  by  the  Collector  to  the  Court.  (See  Ezra v.  Secretary  of  

State  for  India,  (1905)  32  Ind  App 93;  and  Santosh Kumar v.  

Central Warehousing Corporation & Anr., AIR 1986 SC 1164).   

42

46. In the instant cases, admittedly, in spite of the fact that there has  

been  a  consent  Award  under  Section  11(2)  of  the  Act  1894,  the  

appellants had agreed before the High Court that the oustees would be  

entitled to have reference under Section 18 of the Act 1894, a large  

number of references are pending before the courts for consideration.  

Thus, there is still a possibility of enhancement of compensation, but  

such a course would take time. By that time there will be such a hike  

in the price of  land that the  oustees will not be able to purchase the  

land. For lack of any experience or skill, such oustees would not be  

able  to  engage  themselves  in  any  other  alternative  

occupation/vocation.  Thus, it would be difficult for them to survive.

 47. The record of the case reveals that about 56% of the oustees  

involved  in  these  cases  are  members  of  Scheduled  Castes  and  

Scheduled  Tribes.   Land  had  never  been  offered  to  any  of  these  

oustees.  The amount of compensation as determined under the Act  

1894 had been deposited in their bank accounts.  No attempt had ever  

been made by the appellant-State  to either  acquire land from other  

persons having a larger area of land resorting to the provisions of Act  

1894 or purchase the same by agreement/negotiation for resettlement  

of the oustees. Only 11% of the oustees could purchase the land of  

43

their own from other persons without any assistance from the State  

Authorities.  The submission raised on behalf of the State that it had  

been impossible for authorities to acquire/purchase the land cannot be  

accepted  as  this  is  a  pure  question  of  fact  and  in  absence  of  any  

material to show that any attempt had ever been made to acquire the  

land  to  rehabilitate  the  oustees,  such  a  submission  remains  

unsubstantiated.  

48. Same  appears  to  be  the  position  in  regard  to  the  amended  

provisions of the R & R Policy. The phrase “as far as possible” would  

come into play, in case an attempt is made to acquire/purchase lands  

and then to make allotment of land to oustees.  The other added term  

i.e. giving the option to oustees to make application for acceptance of  

compensation  and  not  claiming  land  for  land  acquired,  remained  

inapplicable,  as it  is  alleged that not a single oustee made such an  

application. If it is so, the question remains merely academic.  None  

of the obligations on the part of the authorities as clearly stipulated by  

the R & R Policy had been fulfilled. The Adhiniyam 1985 had not  

been made applicable in respect of  the Omkareshwar Dam Project  

taking  into  account  the  past  experience  in  other  projects.  

Undoubtedly, the acquisition of land and displacing other persons for  

44

resettling  these  oustees  could  have  a  chain  reaction  and  the  

remedy/cure might have been worse than the disease itself and could  

further  give rise  to  the  question  as  to  whether  such an action was  

permissible in law.  The State authorities ought to have assisted the  

oustees in purchasing the land of their choice from other agriculturists  

and met the difference of cost, if any, over and above the amount of  

compensation and the cost of land so purchased.  While determining  

such issues, the State authorities could take into consideration the fact  

that the land should be not less than of the same quality and nature  

which the oustees were originally having with them.  This exercise  

could  have  been  done  “pari  pasu”  which  means  “equably”  or  

“ratably”  to  the  construction  of  the  Dam  and  could  have  been  

completed much in advance of  completion of  the  Dam to the Full  

Water Level.

In the process of development, the State cannot be permitted to  

displace tribal people, a vulnerable section of our society, suffering  

from  poverty  and  ignorance,  without  taking  appropriate  remedial  

measures of rehabilitation. The Court is not oblivious of the fact that  

social  and economic reasons had caused disaffection,  and thus,  the  

45

tribal areas are today in the grip of extremism, as the tribal youths  

have become easy prey to the extremists’ propaganda.

49. While dealing with I.A. No. 42086/2008 in Writ Petition No.  

4457  of  2007  (PIL),  the  High  Court  on  16.3.2009  considered  the  

grievance  of  the  oustees  that  the  land  available  with  the  State  for  

allotment was not cultivable and had been encroached upon, thus, the  

oustees were not willing to accept the land offered to them.  The Court  

directed  the  Indian  Council  of  Agricultural  Research  (Bhopal)  to  

depute a sufficient number of experts to inspect the land offered to the  

displaced families and to find out as to whether it  was suitable for  

agricultural  purposes and submit  its  report  and further  directed  the  

authorities to file an affidavit as to whether the encroachment could be  

removed  expeditiously  within  a  period  of  two months.  The  expert  

committee of Indian Council of Agricultural Research (Bhopal) had  

submitted  the  report  that  the  land  was  cultivable.  The  matter  was  

directed to be listed on 13.9.2009 and in the meanwhile, the GRA was  

directed to dispose of all applications/objections of the oustees  for  

allotment  of  land  in  lieu  of  land  acquired  except  those  where  the  

dispute related to entitlement of major sons for allotment of land and  

where  the  oustees  had  withdrawn  the  entire  amount  of  

46

compensation/SRG amount. Report dated 13.1.2010 submitted by the  

GRA before the High Court makes it  clear that all  objections filed  

before it by the oustees had been decided and directions issued by the  

GRA  had been complied with by the State authorities.  

50. Before the High Court, the State put forward the explanation  

that the Authorities had Awarded the benefit of SRG to the oustees.  

In  fact,  the  PAFs  had  complained  that  with  the  amount  of  

compensation for their lands they were not able to buy land elsewhere  

and that instead of purchasing the land by Government, the additional  

cost involved may be made available to the PAFs to enable them to  

purchase  land  of  their  choice.  The  State  Government  after  

consultation  with  all  concerned  and  approval  by  Hon’ble  Chief  

Minister  devised  a  scheme  whereby  the  PAF  is  given  substantial  

additional amount over and above the compensation for his land in  

order  to  enable  him  to  purchase  arable  and  irrigable  land  at  the  

location of his choice.  This scheme has come to be known as SRG or  

Special Rehabilitation Package (SRP). The rate of the irrigated land in  

the nearest command area is worked out on the basis of sale deeds and  

the cost of land going under submergence is calculated.  30% of this  

amount is again added to this cost and a sum is worked out which is  

47

known as the determined value.  Difference between the determined  

value and compensation already paid is called SRG and is paid to the  

PAF.   The  problems  inherent  in  Government  purchase  are  totally  

eliminated and the PAF is fully empowered and competent to decide  

things for himself.  The additional amount made available to the PAF  

as SRG is not recoverable from him. The purchase of land made by  

the PAF is exempt from the stamp duty and registration fee.  

51. The offer of SRG is over and above the Rehabilitation Policy.  

SRG enables the PAF to purchase land suitable to him at a place of his  

choice  as  he  is  neither  willing  to  accept  the  land  offered  by  the  

government nor to start the life at the new place by mortgaging the  

land for the loan.  Under the SRG, the extra amount paid over and  

above the compensation is not recoverable.  Due to the advantage of  

free hand, the SRG is well accepted by the PAFs. Registration fees  

and stamp duty are also paid.  As the SRG comes into operation after  

the PAFs showed unwillingness to accept the land from the land bank  

and the PAFs want complete freedom for getting land of their choice,  

so  land  for  land  option  has  not  been  exercised  by  the  PAFs  and  

instead they have preferred and accepted cash compensation.  So land  

for land has not been allotted to PAFs as the policy.  It is, however,  

48

erroneous to say that not a single PAF of Omkareshwar Project was  

allotted  agricultural  land  because  the  PAFs  were  empowered  to  

purchase land of their choice by paying SRG.   

52. SRG is an additional amount paid to an oustee to enable him to  

purchase land in the command area to the extent of his land acquired.  

Normally,  an oustee who looses land in submergence  area  gets  an  

amount determined under the Act 1894.  When a project is envisaged  

in an area, the sale and purchase in that area decrease and the prices  

also get depressed.  By the time, the notification under Section 4(1) of  

the Act 1894, is issued, the sale deeds, if any, executed in that area, do  

not represent the correct price.  Similarly, the prices in the command  

area also increase as a result of declaration of the project. Hence, it is  

difficult  for an oustee to purchase land in command area from the  

amount given to him under the Act 1894.  SRG is designed to nullify  

both the above effects and to enable the oustee to get an amount by  

which  he  can  purchase  land  to  the  extent  of  his  land  acquired,  in  

command area.   

SRG= Award Amount calculated       -        Award Amount calculated             for equal land in command  (minus) for the land acquired from             area as  per   Act    1894                   oustee in submergence area            including solatium                            as per Act 1894 including

49

                                                                    solatium                                                              or SRG= Award with assumption           -        Actual Award for the basis            that land is in command    (minus)    land in submergence area.             area  

          The aforesaid relief granted by the appellants to the oustees as  

SRG  is  much  more  than  the  amount  of  compensation  or  amount  

entitled in R & R Policy as amended on 3.7.2003. In fact, to certain  

extent,  it  is  in consonance with the provisions contained in Clause  

(5.4) of R & R Policy, wherein the  State is under an obligation to  

meet the gap of amount between the amount of compensation and the  

value of the land purchased by the oustees.   

53.     The  appellants  have  submitted  that  all  the  oustees  have  

voluntarily accepted SRG and withdrawn the amount and they stand  

fully satisfied. In absence of appropriate pleadings and evidence on  

record,  it  is  not  possible  for  this  Court  to  adjudicate  upon  the  

individual claims or issue a direction of sweeping nature. Thus, if an  

oustee feels aggrieved of what he has received, he may approach the  

GRA.   In  case  the  GRA after  adjudication  of  facts,  comes  to  the  

conclusion that a  particular oustee has not been granted the relief, he  

is  entitled  for;  the  GRA itself   would  grant  the  appropriate  relief  

50

taking into account the provisions of R & R Policy.  In case, either of  

the  parties  is  aggrieved,   it  may   approach  the  High  Court  for  

appropriate directions.  

ENTITLEMENT  OF  MAJOR  SONS  FOR  AGRICULTURAL  LAND IN THE R & R POLICY 1993:

54. So far as the 2nd issue is concerned, the R & R Policy provides  

for definition clause:

Displaced Family:

“(i)  A  family  composed  of  displaced  persons  as  defined  

above  shall  mean  and  include  husband,  wife  and  minor  

children  and  other  persons  dependent  on  the  head  of  the  

family  e.g.  widowed  mother,  widowed  sister,  unmarried  

sister, unmarried daughter or old aged father.

(ii)  Every son/unmarried daughter who has become major  

on or before the date of notification under Section 4 of the  

Land  Acquisition  Act,  will  be  treated  as  a  separate  

family.”                                                       (Emphasis added)  

55. This  Court  in  Narmada  Bachao  Andolan-I,  dealt  with  the  

issue of entitlement of major sons of oustees of the Sardar Sarovar  

Project and held that as it had been provided in the NWDT Award,  

the sons who had become major one year prior to the date of issuance  

51

of  the  notification  under  Section  4  of  the  Act  1894,  for  land  

acquisition, had become entitled to allotment of  land.

56. In Narmada Bachao Andolan – II,  this Court had taken note  

of the said observation/finding in the aforesaid case and held:   

“62. Once major son comes within the purview of  the  expansive  definition  of  family,  it  would  be  idle to contend that the scheme of giving “land  for land” would be applicable to only those major  sons who were landholders in their own rights. If   a  person was a landholder,  he in  his  own right   would be entitled to the benefit  of  rehabilitation   scheme  and,  thus,  for  the  said  purpose,  an   expansive definition of family was not necessarily   to be rendered. Furthermore, if such a meaning is   attributed  as  has  been  suggested  by  Mr  Vaidyanathan, the definition of “family” would to  an  extent  become  obscure.  As  a  major  son  constitutes  “separate  family” within  the   interpretation  clause  of  “family”,  no  meaning  thereto can be given.” (Emphasis added)

57. In the instant case, the High Court on this issue held as under :-

“There  is  no  separate  definition  of  displaced  family given in para 3 of the R&R Policy of 1993.   Hence,  the same definition as has been given in  sub-para 1.1(b) of the R&R policy of 1993 would   be applicable to para 3 of the R&R policy and the   displaced family in para 3.2 will include husband,   wife, minor children and other persons dependent   on the head of the family and every son who has   become major on or before the date of notification  under Section 4 of the Land Acquisition Act but   who  was part  of  the larger  land owning family  

52

from whom land was  acquired   will  have  to  be   treated as separate displaced family  from whom  land is acquired under the Land Acquisition Act.   While  calculating   however  the  extent  of   landholding of a displaced family for the purposes  of determining the area of land to be allotted to  the  displaced  family,  the  share  of  the  displaced  family without the major son may only be taken.   Similarly, while calculating the extent of land to be   allotted to the separated family of such major son,   the  share  of  the  major  son  in  the  land  may  be   taken  into  consideration….………we  hold  that   every adult son and his family who was part of the  bigger  family from  whom  land  was  acquired  would be entitled to allotment of agricultural land   in  accordance  with  paras  3  and  5  of  the  R&R  Policy  of  1993  for  the  Omkareshwar  Dam  project.”                                   (Emphasis added)    

58. In view of the above, this Court has to consider as to whether  

the  NWDT Award provided for  any entitlement  of   major  sons to  

allotment  of  agricultural  land,  and if  not,  whether  the  judgment  in  

Narmada  Bachao  Andolan  –I  could  have  been  considered  as  a  

precedent in  Narmada Bachao Andolan –II, and whether the High  

Court has rightly interpreted the terms and conditions of the R & R  

Policy, as the High Court has proceeded with the assumption that the  

R & R Policy provides that major sons of oustees i.e.  the “large land  

owning families” and those who had been “part of the bigger family”  

would be entitled for allotment of agricultural land.  

53

PRECEDENCE -Doctrine:

59. The Court should not place reliance upon a judgment without  

discussing how the factual situation fits in with a fact-situation of the  

decision on which reliance is placed, as it  has to be ascertained by  

analysing all the  material facts and the issues involved in the case  

and argued on both sides. A judgment may not be followed in a given  

case if it has some distinguishing features. A little difference in facts  

or additional facts may make a lot of difference to the precedential  

value of a decision. A judgment of the Court is not to be read as a  

statute, as it is to be remembered that judicial utterances have been  

made in setting of the facts of a particular case. One additional or  

different  fact  may  make  a  world  of  difference  between  the  

conclusions  in  two  cases.  Disposal  of  cases  by  blindly  placing  

reliance upon a decision is not proper. (Vide: Municipal Corporation  

of Delhi v. Gurnam Kaur,  AIR 1989  SC  38;  Govt. of Karnataka  

& Ors.  v.   Gowramma & Ors.,  AIR 2008 SC 863; and  State of  

Haryana & Anr. v. Dharam Singh & Ors. (2009) 4 SCC 340).  

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PER INCURIAM – Doctrine:  

60. Incuria” literally means “carelessness”. In practice per incuriam  

is  taken to mean per  ignoratium.   The Courts  have developed this  

principle in relaxation of the rule of stare decisis.  Thus, the “quotable  

in law” is  avoided and ignored if  it  is  rendered,  in ignorance of  a  

Statute or other binding authority.  While dealing with  observations  

made by a seven Judges’ Bench in  India Cement Ltd. etc.  etc. v.  

State of  Tamil Nadu etc.  etc.,  AIR 1990 SC 85, the five Judges’  

Bench in State of West Bengal v.  Kesoram Industries Ltd. & Ors.,  

(2004) 10 SCC 201, observed as under:-

“A doubtful expression occurring in a judgment,   apparently by mistake or inadvertence, ought to  be read by assuming that the Court had intended  to say only that which is correct according to the  settled  position  of  law,  and  the  apparent  error  should be ignored, far from making any capital   out  of  it,  giving  way  to  the  correct  expression  which ought to be implied or necessarily read in   the  context,  ……….  A  statement  caused  by  an  apparent typographical or  inadvertent error in a  judgment  of  the  Court  should  not  be  misunderstood as declaration of such law by the   Court.”                                        (Emphasis added)                                                     

(See also Mamleshwar Prasad & Anr. v. Kanhaiya Lal (Dead) by  

Lrs.,  AIR 1975 SC 907; A.R. Antulay v. R.S. Nayak, AIR 1988 SC  

55

1531;  State of U.P. & Anr. v. Synthetics and Chemicals Ltd. &  

Anr., (1991) 4 SCC 139; and  Siddharam Satlingappa Mhetre v.  

State of Maharashtra & Ors., (2011) 1 SCC 694).  

 61. Thus, “per incuriam” are those decisions given in ignorance or  

forgetfulness of some statutory provision or authority binding on the  

Court  concerned,  or  a  statement  of  law caused by inadvertence  or  

conclusion that  has been arrived at  without  application  of  mind or  

proceeded without any reason  so that in such a case some part of the  

decision or some step in the reasoning on which it is based, is found,  

on that account to be demonstrably wrong.

62.     Admittedly, the NWDT Award did not provide for allotment of  

agricultural  land to the major sons of such oustees.   The States of  

Gujarat and Maharashtra had given concessions/relief over and above  

the said Award.  Thus, the  Narmada Bachao Andolan-I  has been  

decided with presumption that such a right had been conferred upon  

major  sons  by  the  NWDT  Award  and  Narmada  Bachao  

Andolan-II has  been  decided  following  the  said  judgment  and  

interpreting the definition of “family” contained in the R & R Policy.  

When the two earlier cases were being considered by the Court, it had  

56

not been brought to its notice that the NWDT Award did not provide  

for such an entitlement.  In such cases, the issue is further required to  

be considered as to whether, as we will consider the definition of the  

word “family” at a later stage, the mistake inadvertently committed by  

this Court earlier, should be perpetuated.   

63. The Courts are not to perpetuate an illegality, rather it  is the  

duty of the courts to rectify mistakes. While dealing with a similar  

issue, this Court in Hotel Balaji & Ors. etc. etc. v.  State of A.P. &  

Ors. etc. etc., AIR 1993 SC 1048 observed as under:

“…To  perpetuate  an  error  is  no  heroism.  To   rectify it is the compulsion of judicial conscience.   In this,  we derive comfort and strength from the  wise  and  inspiring  words  of  Justice  Bronson  in   Pierce v. Delameter (A.M.Y. at page 18: ‘a Judge  ought to be wise enough to know that he is fallible   and,  therefore,  ever  ready  to  learn:  great  and  honest enough to discard all mere pride of opinion  and  follow  truth  wherever  it  may  lead:  and  courageous enough to acknowledge his errors”.  

(See also Nirmal Jeet Kaur v. State of M.P. & Anr., (2004) 7 SCC  

558; and Mayuram Subramanian Srinivasan v. CBI, AIR 2006 SC  

2449).  

64. In re: Sanjiv Datta, Dy. Secy., Ministry of Information &  

Broadcasting,  (1995) 3 SCC 619, this Court observed  :  

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“…None  is  free  from  errors,  and  the  judiciary  does not claim infallibility. It is truly said that a   judge who has not committed a mistake is yet to be  born. Our legal system in fact acknowledges the  fallibility  of  the  courts  and  provides  for  both  internal and external checks to correct the errors.   The law, the jurisprudence and the precedents, the  open  public  hearings,  reasoned  judgments,   appeals,  revisions,  references  and  reviews   constitute  the  internal  checks  while  objective   critiques,  debates  and  discussions  of  judgments   outside  the  courts,  and  legislative  correctives   provide the external checks.  Together,  they go a  long  way  to  ensure  judicial  accountability.  The  law  thus  provides  procedure  to  correct  judicial   errors.”  

DISCRIMINATION:

65. We also have to consider the submissions made on behalf of the  

respondent  No.1  that  the  denial  of  allotment  to  major  sons  of  

agricultural land would amount to hostile discrimination as in earlier  

cases, it had been  granted.  

66. Unequals cannot claim equality. In Madhu Kishwar & Ors. v.  

State of Bihar & Ors., AIR 1996 SC 1864, it has been held by this  

Court that every instance of discrimination does not necessarily fall  

within the ambit of Article 14 of the Constitution.  

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67. Discrimination means an unjust, an unfair action in favour of  

one  and  against  another.  It  involves  an  element  of  intentional  and  

purposeful differentiation and further an element of unfavourable bias;  

an  unfair  classification.  Discrimination  under  Article  14  of  the  

Constitution must be conscious and not accidental discrimination that  

arises from oversight which the State is ready to rectify.  (Vide: Kathi  

Raning Rawat v. State of Saurashtra, AIR 1952 SC 123; and M/s  

Video Electronics Pvt. Ltd. & Anr. v. State of Punjab & Anr., AIR  

1990 SC 820).  

68. However,  in  Vishundas  Hundumal  &  Ors.  v.  State  of  

Madhya Pradesh & Ors., AIR 1981 SC 1636; and Eskayef Ltd. v.  

Collector of Central Excise, (1990) 4 SCC 680, this Court held that  

when  discrimination  is  glaring,  the  State  cannot  take  recourse  to  

inadvertence in its action resulting in discrimination. In a case where  

denial of equal protection is complained of and the denial flows from  

such action and has a direct impact on the fundamental rights of the  

complainant, a constructive approach to remove the discrimination by  

putting the complainant  in the  same position as  others  enjoying  

favourable  treatment  by  inadvertence  of  the  State  authorities,  is  

required.  

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69.  The High Court  while  passing  the  order  had  given a  much  

wider interpretation to the R & R Policy making reference to the terms  

as “bigger family” and the “large land owning family”.  

The Court  while interpreting the provisions of a Statute,  can  

neither add nor subtract a word. The legal maxim “a verbis legis non  

est  recedendum”  means  from the  words  of  law,  there  must  be  no  

departure.  (See: S.P. Gupta & Ors. v. Union of India & Ors., AIR  

1982 SC 149;  P.K. Unni v. Nirmala Industries & Ors., AIR 1990  

SC  933;  and  Commissioner  of  Income  Tax,  Kerala   v.  Tara  

Agencies,  (2007) 6 SCC 429).

INTERPRETATION OF STATUTE:

70. In Principles of Statutory Interpretation  by Justice G.P. Singh  

(12 Edn. 2010), the learned Author has stated as under:

“In selecting out of different interpretations ‘the   court will adopt that which is just, reasonable and   sensible rather than that  which is  none of  those   things’…….A construction that results in hardship,   serious  inconvenience,  injustice,  absurdity  or  anomaly  or  which  leads  to  inconsistency  or  uncertainty  and friction  in  the  system which  the  statute purports to regulate has to be rejected and   preference  should  be  given  to  that  construction  which avoids such results.” (pp. 131-132)

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71. In  Directorate of Enforcement  v.  Deepak Mahajan,  AIR  

1994 SC 1775,  this Court held as under:  

“Though  the  function  of  the  courts  is  only  to   expound the law and not to legislate, nonetheless   the legislature cannot be asked to sit to resolve the   difficulties  in  the  implementation  of  its  intention   and the spirit of the law. In such circumstances, it   is  the  duty  of  the  court  to  mould  or  creatively   interpret  the  legislation  by  liberally  interpreting   the statute.

In  Maxwell  on  Interpretation  of  Statutes,   Tenth Edn. at page 229, the following passage is   found:

‘Where  the  language  of  a  statute,  in  its   ordinary meaning and grammatical construction,   leads to a manifest contradiction of the apparent  purpose  of  the  enactment,  or  to  some  inconvenience or absurdity, hardship or injustice,   presumably  not  intended,  a  construction may be   put  upon  it  which  modifies  the  meaning  of  the  words,  and  even  the  structure  of  the  sentence.’

         But to winch up the legislative intent, it  is   

permissible for courts to take into account of the   ostensible  purpose  and  object  and  the  real   legislative  intent.  Otherwise,  a  bare  mechanical   interpretation of the words and application of the  legislative intent devoid of concept of purpose and  object will render the legislative inane.”  

72. Therefore, an interpretation having a social justice mandate is  

required. The statutory provision is to be read in a manner so as to do  

justice to all the parties. Any construction leading to confusion and  

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absurdity must be avoided. The Court has to find out the legislative  

intent and eschew the construction which will lead to absurdity and  

give  rise  to  practical  inconvenience  or  make  the  provision  of  the  

existing  law  nugatory.  The  construction  that  results  in  hardship,  

serious  inconvenience  or  anomaly  or  gives  unworkable  and  

impracticable results, should be avoided. (Vide: Corporation Bank v.  

Saraswati  Abharansala  &  Anr.  (2009)  1  SCC  540;  and  Sonic  

Surgical v. National Insurance Co. Ltd., (2010) 1 SCC 135).   

73. A reasonable construction agreeable to justice and reason is to  

be preferred to an irrational construction. The Court has to prefer a  

more  reasonable and just interpretation for the reason that there is  

always a presumption against the law maker intending injustice and  

unreasonability/irrationality,  as  opposed  to  a  literal  one  and  which  

does not fit in with the scheme of the Act. In case the natural meaning  

leads to mischievous consequences, it must be avoided by accepting  

the  alternative  construction.  (Vide:  Bihar  State  Council  of  

Ayurvedic and Unani Medicine v. State of Bihar, AIR 2008 SC  

595; and  Mahmadhusen Abdulrahim Kalota Shaikh v. Union of  

India (2009) 2 SCC 1).     

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74. The  Court  has  not  only  to  take  a  pragmatic  view  while  

interpreting a statutory provision, but must also consider the practical  

aspect of it. (Vide:  Union of India v. Ranbaxy Laboratories Ltd.,  

AIR 2008 SC 2286).

75. In Narashimaha Murthy v. Susheelabai, AIR 1996 SC 1826,  

this Court held :

“The  purpose  of  the  law  is  to  prevent   brooding sense of injustice. It is not the words of   the law but the spirit and eternal sense of it that   makes the law meaningful.”  

76. In  Workmen of Dimakuchi  Tea Estate v.  Management of  

Dimakuchi Tea Estate, AIR 1958 SC 353, it has been held thus:

“..the definition clause must be read in the context   of the subject matter and scheme of the Act, and  consistently with the objects and other provisions   of the Act.”    

77. In  Sheikh Gulfan v.  Sanat Kumar Ganguli, AIR 1965 SC  

1839, it has been held as follows:

“19…Often  enough,  in  interpreting  a  statutory   provision, it becomes necessary to have regard to   the  subject  matter  of  the  statute  and  the  object   which  it  is  intended  to  achieve.  That  is  why  in   deciding the true scope and effect of the relevant   words  in  any  statutory  provision,  the  context  in   which the words occur,  the object of the statute in  

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which  the  provision  is  included,  and  the  policy   underlying  the  statute  assume  relevance  and  become material…”

 78. Any interpretation  which eludes or  frustrates  the recipient  of  

justice is not to be followed.  Justice means justice between both the  

parties. Justice is the virtue, by which the Court gives to a man what is  

his due.   Justice is  an act of rendering what is  right  and equitable  

towards  one who has  suffered  a  wrong.  The  underlying  idea  is  of  

balance.  It  means  to  give  to  each  his  right.   Therefore,  while  

tempering the justice with mercy, the Court has to be very conscious  

that  it  has  to  do  justice  in  exact  conformity  with  the  statutory  

requirements.  

79. Thus, it is evident from the above referred law, that the Court  

has to interpret a provision giving it a construction agreeable to reason  

and justice  to all  parties  concerned,  avoiding injustice,  irrationality  

and mischievous consequences.  The interpretation so made must not  

produce unworkable and impracticable results or cause unnecessary  

hardship,  serious  inconvenience  or  anomaly.  The  court  also  has  to  

keep in mind the object of the legislation.    

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INSTANT CASE:  

80. REHABILITATION  PROVISIONS  AS  PER  NWDT  AWARD  AND  STATE-WISE  COMPARATIVE PROVISIONS

S.No. Item NWDT Award Madhya  Pradesh

Gujarat  Maharashtra

1.(a) Tenure   Holder

xx xx xx xx

  (b) Xx xx xx xx xx    (c)  Xx xx xx xx xx    (d) Major

sons      of  above  all categories of oustees

No provision for land allotment.

Major  son will be   treated   as separate family.   They   will    be  entitled  to cash  compensation according    to the      category  to  which   they  belong.

2 hec. of  land to  each   major son        of    all categories.

1 hec. of land to             each   unmarried daughter      and major    son    of  all categories  of  oustees with – as cut- off   date for  major    sons and  unmarried  daughters.

 81.  IMPLICATIONS  IF IMPUGNED JUDGMENT IS UPHELD

Category of  oustees

In case each of the following Categories of oustees lose only one hectare of land

Mr. A  (land  less)

Mr. B  (Losing less  than 25%  of holding)

Mr. C  (Single  Khatedar)

Mr. D  (Single  Khatedar)

Mr. E  (E1+E2+ E3) Joint  Khate-  dars

Mr. F (F1+F2+F3) Joint Khatedars

No. of major  sons/  daughters

3 3 0 3 0 F1: 3 sons F2: 3 sons F3: 4 sons

Entitlement if contention of Respondent is accepted For Self 0 0 2 hect. 2 hect. 3@2 hect.  

= 6 hect. 3@2 hect. = 6 hect.

For Major  sons/  daughters

0 0 0 3@2 hect.  = 6 hect.

0 10 @ 2 hect. = 20 hect.

Total  Entitlement

0 0 2 hect. 8 hect. 6 hect. 26 hect.

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         It is apparent that the directions of the Hon’ble High Court  

regarding  land-for-land  would  lead  to  grave  inequity,  and  thereby  

likely to cause undue enrichment of some categories of oustees:

a.       Sons of land owning class get better rights than their fathers.

b. Sons of land owning class get better rights than those of land less  class.

c. Even though everybody loses same measure of land, some are not  entitled to any land while for some it becomes an unimaginable  bounty or proves to be bonanza.  

82. In case, the view taken by the High Court is upheld, it would  

have very serious repercussions for the reason that no land had been  

acquired wherein a major son can independently claim compensation  

as a matter of right.  In such an eventuality, the question of  retaining  

50 per cent of the compensation could not arise.  If it were allowed, it  

would  create  hostile  discrimination  against  others  like  landless  

persons who have been found to be non-suited by the High Court in  

the  impugned  judgment.   The  High  Court  has  added  words  like  

“larger  land  owning  family” and  “bigger  family” to  justify  the  

relief given to major sons even though such terms do not appear in the  

R & R Policy or either of the judgments given by this Court earlier.  

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The  charts  hereinabove  make  it  crystal  clear  that  there  was  no  

provision for allotment of land to major sons in the NWDT Award.  

Obviously, it has wrongly been mentioned in the earlier judgments of  

this Court by inadvertence.  This requires correction as such an error  

cannot be perpetuated.   The claims of the respondents,  if accepted,  

and the High Court judgment if upheld, would lead to unwarranted  

results.   For some of the families having a large number of major  

sons, it would lead to a level of unjust enrichment that could never  

have  been envisaged  by the  Government  of  Madhya  Pradesh.  The  

view taken by the High Court gives rise to pre-supposition (a fiction)  

of  partition  of  agricultural  land  amongst  the  tenure-holder  and  his  

major sons. Such a concept would defeat the right of minor sons for  

partition or claiming the share in the agricultural land and also lead to  

uncertainty as to whether 75% of the total land of the major son, after  

partition stood acquired.  The plea of discrimination is not available to  

such major sons of the families, whose land has been acquired for this  

project, as they cannot be put at par with the major sons of the oustees  

of  the  Sardar  Sarovar  Project.  Even  if  the  plea  is  tenable,  such  

discrimination cannot be held to be conscious or  intentional  as the  

State  is  willing  to  rectify  the  mistake.   The  State  has  filed  an  

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application to rectify the mistake in the judgment of 2005, as I.A. No.  

37 of 2009 for clarification/modifications of the said judgment which  

is pending consideration.   

         The  view  expressed  earlier,  inadvertently,  on  a  wrong  

assumption may result in great public loss and would be against larger  

public interest.  There is no prohibition under the law on this Court to  

locate the error and adopt a correct approach if the Court is convinced  

that  the  error  exists  and its  avoidance  is  necessary  to  prevent  any  

baneful effect on the general interest of the public or the State.  The  

mistake is manifestly wrong and has a direct impact on the procedure  

to be adopted for rehabilitation.  The impact of allotment cannot be  

against public good and has to be balanced with an appropriate grant  

to the oustees.  It is, therefore, essential to rectify the mistake.   

83.     Compensation in the present context has to be understood in  

relation to right to property.  The right of the oustee is protected only  

to a limited extent as enunciated in Article 300-A of the Constitution  

of India.  The tenure holder is  deprived of the property only to the  

extent  of  land  actually  owned  and  possessed  by  him.   This  is,  

therefore,  limited to the physical area of the property and this area  

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cannot get expanded or reduced by any fictional definition of the word  

“family” when it comes to awarding compensation.  Compensation is  

Awarded by authority of law under Article 300-A of the Constitution  

read with the relevant statutory law of compensation under any law  

made by the legislature and for the time being in force, only for the  

area acquired.  

Rehabilitation on the other hand, is restoration of the status of  

something  lost,  displaced  or  even  otherwise  a  grant  to  secure  a  

dignified mode of life to a person who has nothing to sustain himself.  

This  concept,  as  against  compensation  and  property  under  Article  

300-A, brings within its fold the presence of the elements of Article  

21  of  the  Constitution  of  India.  Those  who  have  been  rendered  

destitute,  have to be assured a permanent source of basic livelihood to  

sustain  themselves.   This  becomes necessary for  the  State  when it  

relates  to  the  rehabilitation  of  the  already  depressed  classes  like  

Scheduled Castes, Scheduled Tribes and marginal farmers in order to  

meet the requirements of social justice.  

As noted above, benefit given to a major son was not within the  

terms of the Award.  It was rather a concession given by the States  

who were parties to the NWDT Award. The said Award, therefore, as  

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understood in the previous decisions was not at all applicable for the  

purpose of extending any such grant of benefit to a major son.  The  

concession  given  by  the  respective  States  after  the  Award  was  

delivered  during  the  course  of  subsequent  negotiations  therefore,  

could not be a part of the Award.  The aforesaid decisions, therefore,  

would not be a binding precedent for the purpose of the present case  

as it was under some mistaken belief that the Award was understood  

to have extended the said benefit to major sons also.  The High Court  

therefore, fell into an error by proceeding to assume that a major son  

would be treated to be a separate family for the purpose of allotment  

of land also.  

84. The  rehabilitation  has  to  be  done  to  the  extent  of  the  

displacement.  The  rehabilitation  is  compensatory  in  nature  with  a  

view to ensure that the oustee and his family are at least restored to  

the status that was existing on the date of the commencement of the  

proceedings under the Act 1894. There was no intention on behalf of  

the  State  to  have  awarded  more  land  treating  a  major  son  to  be  

separate unit.   This would otherwise bring about an anomaly, as is  

evident  from  the  chart  that  has  been  gainfully  reproduced  

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hereinabove. The idea of rehabilitation was, therefore, not to distribute  

largesse  of  the  State  that  may  reflect  distribution  totally  

disproportionate  to  the  extent  of  the  land  acquired.  The  State  has,  

therefore, rightly resisted this demand of the writ petitioners and, in  

our opinion, for the High Court to presuppose or assume a separate  

unit  for  each  major  son  far  above  the  land  acquired,  was  neither  

justified nor legally sustainable.

      In  effect,  the  major  son would  not  be  entitled  to  anything  

additional as his separate share in the original holding and it will not  

get  enhanced  by the  fictional  definition  as  stated  in  the  impugned  

judgment.  The major son would, however, be entitled to his share in  

the area which is to be allotted to the tenure holder on rehabilitation in  

case  he  is  entitled  to  such  a  share  in  the  law  applicable  to  the  

particular State.  

85. More so, the view taken by the High Court that the land to be  

allotted to major sons shall be determined on the basis of  his share  in  

the land prior to its acquisition, does not appear to  be compatible or  

in consonance with the terms of R & R Policy which provides for a  

minimum  allocation  of  2  hectares.   Thus,  the  policy  must  be  

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interpreted to the effect that the major sons of oustees will be entitled  

to  all  the  benefits  under  the  R  &  R  Policy,  except  allocation  of  

agricultural land.  Each State has a right to frame the rehabilitation  

policy considering the extent of its resources and other priorities. One  

State is not bound if in a similar situation, the other State has accorded  

additional facilities even over and above the policy. The definition of  

“displaced family” cannot be read in isolation, rather it requires to be  

considered taking into account the eligibility criteria for allotment of  

land in Clause (5) of the R & R Policy.   To that extent, the judgment  

of the High Court is liable to be set aside.   

CONCLUSIONS:  

86. In view of the above, the direction given by the High Court in  

paragraph 64 (i) of the judgment,  is modified to the extent that the  

displaced  families  who  have  not  withdrawn  SRG  benefits/  

compensation  voluntarily  and  submit  applications  for  allotment  of  

land before the Authority concerned, shall be entitled to the allotment  

of agricultural land “as far as possible” in terms of the R & R Policy,  

and for that purpose, the appellants must make some government or  

private land available for allotment to such oustees if they opt for such  

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land and agree to ensure compliance with other terms and conditions  

stipulated therein.    

          In case suitable land is available in the land bank, the same  

would be offered to such oustees. In case, dispute of suitability of land  

is raised, it would be adjudicated upon and determined by the GRA.  

The authorities must render all possible assistance to the oustees to  

purchase the land by negotiations. In case the land is not available as  

mentioned hereinabove, the State must ensure compliance of Clause  

5.4  of   the  R  &  R  Policy  to  the  full  extent  in  the  cases  of  the  

Scheduled Castes/Scheduled Tribes and to the extent of 2 hectares in  

case of other marginal farmers. In case the extent of the land acquired  

is  more  than  8  hectares,  the  same  shall  be  paid  according  to  the  

provisions contained therein.  

The Government  must  continue to  search for additional  land  

than what is already available in the land bank and to find out the  

means of its purchase for allotment to the oustees.  The Government  

should also ensure that the allocated land is not encroached upon by  

the unscrupulous persons.   

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Direction given by the High Court to allot agricultural land to  

major  sons  of  the  oustees  in  Paragraph  64  (iii)  of  the  impugned  

judgment is hereby set aside.   

          In the instant cases, the R & R Policy or amendment thereto in  

2003,  has  not  been  under  challenge.  There  was  no  prayer  by  the  

respondents to quash the said amendment.  Relief not sought by the  

party cannot be granted by the Court.   More so, the direction has been  

issued by the High Court to grant relief in the impugned judgment and  

order taking into account the said amendment. The same is not under  

challenge  at  the  behest  of  respondents  before  us.   In  such  an  

eventuality,  it  was  not  desirable  for  the  High  Court  to  make  any  

comment on the competence of the State to amend the policy and the  

finding so recorded in Para 38 of the judgment cannot be sustained in  

the eyes of law, and thus is set aside.   

Civil Appeal No. 2082  of 2011

87.        The present appeal has been preferred by the appellant/writ  

petitioners mainly on the 3 issues on which no relief has been granted  

by the High Court.  Therefore, the appeal is limited to the extent of:  

whether landless oustees are entitled to allotment of agricultural land;  

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whether  the  NWDT  Award  dated  12.12.1979  is  applicable  to  the  

present project of the Omkareshwar Dam; and, thirdly, whether the  

oustees of 5 villages which have already been submerged, are entitled  

to allotment of land in lieu of land acquired, in spite of the fact that  

the SRG had already been granted to them.  

88. The  facts  and  circumstances  giving  rise  to  this  appeal  have  

already  been  elaborately  mentioned  in  connected  Civil  Appeal  

Nos.2115-2116 of 2011, thus, the same are not repeated here and  we  

proceed to decide the issues involved herein.  

89. Shri Sanjay Parekh, learned counsel appearing for the appellant,  

has  submitted  that  R  &  R  Policy  does  not  provide  for  land  for  

agricultural  purposes  to  landless  persons.   However,  the  Office  

Memorandum issued by the Ministry of Forest and Environment dated  

13.10.1993 granting clearance for the Omkareshwar Dam provided for  

allotment of land to landless labourers also.  The NWDT Award is  

applicable in the case of the Omkareshwar Dam also for providing the  

resettlement  and  rehabilitation  of  all  kinds  of  oustees  of  the  five  

villages,  whose  land  had  already  been  submerged  in  view  of  the  

orders  of  the  Court  passed,  from  time  to  time,  though  paid  

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compensation under the Act 1894/SRG, are also entitled for allotment  

of agricultural land in terms of  R &  R Policy.  Hence, to that extent,  

the judgment and order of the High Court impugned herein, is liable  

to be set aside.   

                  On the contrary, the appeal had been vehemently opposed by  

S/Shri Ravi Shankar Prasad and P.S. Patwalia, learned Senior counsel  

appearing for the respondents contending that R & R Policy does not  

provide  for  allotment  of  land  to  landless  persons.   More  so,  the  

clearance  given  by  the  Ministry  of  Forest  and  Environment  stood  

qualified by the words “as permissible” meaning thereby, the landless  

labourer shall be entitled to allotment of land in case it is permissible  

in law for the time being in force or any other policy framed by the  

State to that effect.  They have further submitted that NWDT Award  

was meant only for the Sardar Sarovar Dam as a water dispute had  

arisen among the States sharing the water of the Narmada river under  

the Award and thus the said Award has no application whatsoever so  

far as the Omkareshwar Dam was concerned.  In view of the fact that  

5  villages  had  already  been  submerged  long back and  the  oustees  

thereof, had been paid compensation for their land acquired/SRG, the  

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question of reopening the issue is not permissible.  Thus, the appeal is  

liable to be dismissed.   

                    We have considered the rival submissions made by learned  

counsel for the parties and perused the record.   

90. The Office Memorandum issued by the Ministry of Forest and  

Environment  dated  13.10.1993  granting  clearance  for  the  

Omkareshwar Dam Project with a condition, stated as under:

“(vii)   The Rehabilitation Programme should be  extended  to  landless  labourers  and  the  people   affected due to canal by identifying and allocating   suitable  land  as  permissible.  A  time  bound  programme  should  be  submitted  by  December,   1993.”

91. The High Court has held that the said condition so added stood  

qualified  by  the  words  `as  permissible’  and  thus,  the  landless  

labourers  would  get  the  land  even for  agricultural  purposes  to  the  

extent of 2 hectares (about 5 acres), if it is permissible in law or any  

other  government  policy.  In  addition  thereto,  the  High  Court  had  

further  taken  note  of  the  fact  that  all  other  reliefs  including  the  

transportation  charges,  plots  for  residential  accommodation  and  

preference  for  employment  etc.  etc.,  shall  be available  not  only  to  

landless  labourers, but also to major sons of such oustees including  

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landless labourers.  As the said condition imposed by the Ministry of  

Forest and Environment while granting clearance is as stood qualified,  

and has been subject to any other law for the time being in force or the  

government  policy  etc.,  we  do not  feel  that  landless  labourers  are  

entitled  to  allotment  of  land.    More  so,  the  R  & R Policy  itself  

provides  a  particular  mode  of  retaining  50% of  the  compensation  

amount  and  50%  to  be  recovered  in  20  years.   As  the  landless  

labourers  never  had  any  land,  they  are  not  entitled  to  any  

compensation under the Act 1894, thus, the question of allotment of  

land to them would not arise. The R & R Policy itself provides that  

such  persons  are  entitled  to  get  Rs.49,300/-   to  buy  productive  

employment creating assets etc., and such money can also be used for  

acquiring land.  Such terms cannot be interpreted to mean that the  

landless labourers become entitled to allotment of land for agricultural  

purpose  to  the  extent  of  2  hectares.  The policy  is  to  be  read as  a  

whole,  as  it  is  not  permissible  for a party  to pick up one word or  

phrase or one sentence and claim relief on the basis of the same.  In  

case,  the  major  sons,  as  we have  already  held  hereinafter,  are  not  

entitled  to  allotment  of  agricultural  land,  the  question  of  landless  

labourers  being  entitled  to  the  same does  not  arise.   More  so,  the  

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words  `as  permissible’  cannot  be  given  a  complete  go-bye.   In  

Gurbax Singh v. State of Punjab & Ors., AIR 1967 SC 502, this  

Court  while interpreting the provisions of  Punjab Security of Land  

Tenures  Act,  1953,  interpreted  the  words  `permissible  area’  while  

determining the surplus area and held that permissible area means that  

the land owner is entitled to reserve land not exceeding the said area  

and the balance remains surplus area. Therefore, permissible area was  

defined as an area which is permissible for a person to retain under the  

provisions of  that  Act.   Thus,  permissible  area  can legitimately be  

defined as the area reserved under the Act.  Similarly, in  Municipal  

Committee, Patiala v. Model Town Residents Association & Ors.,  

AIR 2007  SC 2844,  this  Court  interpreted  the  phrase  `permissible  

classification’ to mean what is permissible in law.  In  Jagjit Cotton  

Textile Mills v. Chief Commercial Superintendent, N.R. & Ors.,  

(1998)  5  SCC  126,  while  interpreting  Rule  161A  of  the  Indian  

Railways Conference Association Rules and Section 73 of Railways  

Act, 1989,  construing  the term “permissible carrying capacity”, this  

Court  held that the normal carrying capacity means, it cannot exceed  

the upper limits prescribed under the Statute/law.  

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92. The  Government  of  Madhya  Pradesh  in  Narmada  Valley  

Development  Project  had  issued  its  Omkareshwar  Multipurpose  

Project,  Rehabilitation  and  Resettlement  Plan  in  August,  1993,  

according to which landless persons had been defined as:  

“1.2(a) Landless Persons: A person, who, whether individually or jointly with   members  of  his  family,  does  not  hold  any   agricultural  land or does not  have any land for   agriculture…..”

Clause 6 thereof further provided for the families of landless  

agricultural labourers, a rehabilitation grant of Rs.11,000/-; transport  

assistance;  allotment  of  plots  in rural  areas  for residential  purpose;  

and various other special  financial assistance.  The relevant part  of  

Clause 9.1 and 9.2 reads as under:

“9.1 The Narmada Valley Development Authority   will  ensure  appropriate  arrangements  for   discharge these responsibilities within a stipulated   time-frame. In the interim period special financial   assistance will be given to supplement the income  of the landless agricultural labourers and landless  scheduled caste and schedule tribe oustee families   for three year in descending order which shall be   in addition to the grant in aid mentioned in Para   6.1.  This period of three years will be calculated   from the payment year of the grant in aid under   Para 6.1.  Thus, a landless oustee family will get a   special  income  support  amount  of  Rs.8,250/-,   Rs.5,500/- and Rs.2,750/- in the second, third and  

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fourth  year  of  displacement  respectively.   In   addition, a further sum of Rs.12,500/- shall be kept   in  reserve  for  every  landless  oustee  family  and  shall  be  made  available  for  executing  an  independent viable scheme for earning livelihood  or for purchase of productive assets.  The above  support  amounts  will  be  75%,  50%  and  25%  respectively of the poverty line and the amount to   be kept in reserve is also linked with the poverty   line.  If the scale of the poverty line is revised, the   amount of special support amount and the reserve   shall  also  be  proportionately  increased  accordingly.  For other landless special financial   assistance  of  Rs.19,500/-  will  be  given  for  the  purpose of productive assets.

9.2 Amount  to be paid to the landless displaced   families shown in Para 6.1 and 9.1 will be credited  to a special fund by the NVDA and can be made  available  to  the  oustees  for  acquisition  of  a  suitable productive asset, including land, in one or   more installments as required.”

93. It  has  been  submitted  by  Shri  Parekh  that  the  word  `land’  

mentioned in Clause 9.2 means that the government has to provide  

financial  assistance  for  acquisition of  suitable  land in one or  more  

installments, as required. Such an interpretation is not permissible for  

the simple reason that the area mentioned in Clause 9.2 is subject to  

the provisions of paras 6.1 and 9.1.  Para 6.1 provides for a claim to  

the  tune  of  Rs.11,000/-  and  para  9.1  deals  with  other  grants  as  

mentioned  hereinabove.   Therefore,  such  an  interpretation  is  not  

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permissible.  Had it been the intention of the Ministry of Forest and  

Environment  to  impose  such  a  condition,  the  word  ‘permissible’  

would not have been used.  More so, it would have asked the State  

Government to amend the R & R Policy accordingly.  Thus, in view  

of above,  we do not  see any force in the contentions made by the  

appellant.  The reliefs sought by the appellant for landless labourers  

are not permissible.   

Applicability of the Award:

94. Shri Sanjay Parekh, learned counsel appearing for the appellant,  

has submitted that under the provisions of  Act 1956, a Tribunal was  

constituted and it had made the Award on 12.12.1979 and it provides  

for various reliefs to the oustees and all the benefits granted by the  

said Award to the oustees are applicable in case of the oustees of  the  

Omkareshwar Dam Project.   The High Court  has  rejected the  said  

contention of the appellant on the ground that the Tribunal had been  

constituted to resolve the water dispute as defined under Section 2(c)  

of  the Act,  1956,  for the reason that  a dispute  had arisen between  

various States i.e. the States of Maharashtra, Madhya Pradesh, Gujarat  

and  Rajasthan.   The  matter  was  limited  to  resettlement  and  

rehabilitation of 6147 oustee families spread over in 158 villages in  

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the  State  of  Madhya  Pradesh  as  a  consequence  of  Sardar  Sarovar  

Project.   Therefore,  the  High  Court  after  considering  the  entire  

arguments,  has   come  to  the  conclusion  that  the  Tribunal  was  

considering  only  the  resettlement  of  the  aforesaid  oustee  families  

spread  over  158  villages  in  the  State  of  Madhya  Pradesh  and,  

therefore, the Tribunal was concerned only with those persons and it  

did not take in its ambit any other future plan or project.  The findings  

recorded by the High Court read as under:

“Thus, all the aforesaid directions in the NWDT  Award  were  in  relation  to  the  Sardar  Sarovar  Project  and  were  not  applicable  to  displaced  families affected by the acquisition of land for the   Omkareshwar Project.”

95. Shri  Sanjay  Parekh  could  not  point  out  anything  from  the  

Award  which  may  be  explained  or  interpreted  to  suggest  that  the  

terms of the Award would be applicable to any project to be taken by  

the State of Madhya Pradesh in the future.  More so, the Award itself  

provides for distribution of water among the States and  to regulate the  

amount of water distributed by the Tribunal.  Clause 11 thereof, dealt  

with  the  directions  regarding  acquisition  of  submerged  land  and  

rehabilitation of persons displaced by the Sardar Sarovar Dam.  Sub-

clause III(1) thereof, fastened the total liability of compensation for  

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land acquisition and rehabilitation etc. on the State of Gujarat, as it  

reads as under:  

“Gujarat  shall  pay  to  Madhya  Pradesh  and  Maharashtra  all  costs  including  compensation,   charges and expenses incurred by them for or in   respect  of  the  compulsory  acquisition  of  lands  required to be acquired as aforesaid.”  

96. Sub-clause IV provides for provisions for rehabilitation and it  

reads as under:  

“IV(1) :   According to the present  estimates the  number of oustee families would be 6147 spread  over 158 villages in Madhya Pradesh, 456 families   spread over 27 villages in Maharashtra, Gujarat   shall establish rehabilitation villages in Gujarat in   the  irrigation  command  of  the  Sardar  Sarovar  Project  on  the  norms  hereinafter  mentioned  for   rehabilitation  of  the  families  who are  willing  to  migrate to Gujarat.  For oustee families who are  unwilling to migrate to Gujarat, Gujarat shall pay  to  Madhya  Pradesh  and  Maharashtra  the  cost,   charges  and  expenses  for  establishment  of  such  villages in their respective territories on the norms  as hereinafter provided.”

97. Clause  XIV thereof,  provides  for setting up of  machinery to  

implement the decision of the Tribunal.  Clause VIII(3) provides for  

future dams etc., only to the extent that any further projects in Madhya  

Pradesh shall not infringe the rights of the States created under the  

Award.   

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Thus, we do not find anything in the Award which provides any  

benefit to the oustees of the Omkareshwar Dam or suggests that the  

Award is  applicable in the present  case also.   We do not  find any  

reason to take a contrary view than what has been taken by the High  

Court on the issue.  

Entitlement to land in lieu of submerged land:

98. In  the  instant  case,  we  are  concerned  with  the  rights  and  

entitlements of the oustees of the 5 villages which had already been  

submerged.   In  fact,  the  project  has  affected  the  residents  of  30  

villages.  Five villages had already been submerged. Before the High  

Court, the question arose as to whether the oustees of those 5 villages  

which have already been submerged, were entitled to the benefits of R  

& R Policy and they had been Awarded only the compensation/ SRG  

and  the  area  of  these  5  villages  has  been  submerged  during  the  

pendency of litigation before the High Court and this  Court.   This  

Court while disposing of the Civil Appeal Nos. 2115-2116 of 2011  

against this very judgment vide order dated 14.5.2008, has issued a  

large number of directions and also asked the oustees to approach the  

GRA. However, Clause 4 thereof reads as under:

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“The above interim direction will come in the way  of the State Government making efforts to provide  solution for land wherever required in terms of its   R & R Policy.”

99. The High Court decided the issue observing that as submerging  

of the 5 villages took place in view of the orders by the courts and the  

oustees had been paid compensation/SRG and this Court had passed  

the order not to submerge the remaining 25 villages till the completion  

of rehabilitation took place, it was not proper for the High Court to  

direct the respondents to restore the status quo ante for the 5 villages  

in issue.

100.   There  are  claims  and  counter  claims  in  regard  to  voluntary  

acceptance of compensation amount/SRG by the oustees of those 5  

villages. S/Shri R.S. Prasad and P.S. Patwalia, learned senior counsel  

appearing for the respondents,  have relied upon the report  of GRA  

dated  28.4.2007 to  show that  all  those  persons   have  accepted the  

benefit of SRG and nothing remains to be adjudicated upon.   

101. The record does  not  contain  sufficient  material  to  adjudicate  

upon the factual aspects involved herein.  The GRA is the best forum  

to decide the claims of such persons.  However, in view of the settled  

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legal proposition that no person should suffer from an act of the Court  

and to ensure that the oustees of the 5 villages which have already  

been submerged under the orders of the Courts, do not face hostile  

discrimination at the hands of the authorities; they shall be entitled to  

the relief to which the other oustees are entitled in Civil Appeal Nos.  

2115-2116 of  2011.  

In case,  any of the oustees of these 5 villages is not satisfied  

with  what  he  has  been  Awarded  by  the  State  Authorities  and  he  

approaches the GRA in his personal name and establishes his case, he  

would be entitled  to  the  relief  granted by us in  Civil  Appeal  Nos.  

2115-2116 of 2011.

Civil Appeal Nos.2083--2112 of 2011

102. These appeals  have arisen  out  of  the impugned order  dated  

23.9.2009, passed by the High Court of Madhya Pradesh at Jabalpur,  

in  Interlocutory  Application  Nos.  4679  and  4804  of  2009  in  Writ  

Petition No. 4457 of 2007, by which the High Court has allowed the  

said applications and directed the appellants to rehabilitate the oustees  

so far as the land measuring 284.03 hectares in the 5 villages, namely,  

i.e.  Dharadi,  Nayapura,  Guwadi,  Kothmir  and  Narsinghpura  is  

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concerned, and not to withdraw the acquisition proceedings in respect  

of the said area.  

103. S/Shri  R.S.  Prasad and P.S.  Patwalia,  learned senior  counsel  

appearing on behalf of the appellants, have submitted that  the High  

Court  has committed an error by directing the rehabilitation of the  

occupants of the land in dispute in the said 5 villages,  recording a  

wrong finding; that as the possession of the land had been taken by  

the government the acquisition proceedings cannot be reversed. The  

land  stood  vested  in  the  State;  the  land  in  dispute  would  stand  

submerged  actually  and,  therefore,  withdrawal  of  the  acquisition  

proceedings  was  not  permissible,  though  the  land  acquisition  

proceedings  had  not  been  completed  and  the  actual  physical  

possession  of  the  land  in  dispute  has  not  been  taken.  The  

persons/tenure  holders  interested  are  still  in  possession  of  their  

respective lands. Therefore, the appellants have a right, not to acquire  

the land. Entries in revenue records after mutation do not confer any  

title  or  interest  in the property.   The land in dispute would not  be  

submerged even temporarily unless the flood situation occurs on back  

water  level.  Therefore,  the  authorities  had  taken  a  decision  on  

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2.4.2009 to  abandon the  land acquisition  proceedings.  The land  in  

dispute  would  be  water  locked  unless  the  height  of  the  road  is  

enhanced.   However,  considering the  cost  of  rehabilitation  as  very  

high, the authorities have taken a decision to raise the level of the road  

to  the  extent  that  no  part  of  the  land  in  dispute  would  ever  be  

submerged or water locked and people residing there or occupying the  

land  would  have  access  to  the  said  land.  Therefore,  the  appeals  

deserve to be allowed and the impugned order of the High Court is  

liable to be set aside.

104. On the contrary, Shri Sanjay Parekh, learned counsel appearing  

for the respondents, has submitted that land stood vested in the State  

free from all encumbrances as actual physical  possession of the land  

in dispute  had been taken in December, 2007; tenure holders thereof  

stood  evicted;   not  a  single  tenure  holder  is  in  possession  of  its  

holdings  today;  mutation  entries  had  been  made  in  the  revenue  

records;  Award had been made by the Land Acquisition Collector;  

money had been deposited in the treasury by the appellant, as it was  

not  accepted  by  the  oustees  for  the  reason  that  they  wanted  

rehabilitation rather than compensation or SRG, some people had got  

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the  amount  of  compensation  enhanced  by  filing  references  under  

Section 18 of the  Act 1894.  Hence, the question of denotifying the  

said land under Section 48 of the Act 1894, at  this stage does not  

arise.   The  appeals  are  devoid  of  any  merit  and  are  liable  to  be  

dismissed.  

105. We have considered the rival submissions made by the learned  

counsel for the parties and perused the record.  

106.    In the instant case, a huge chunk of land was notified under  

Section 4 of the Act 1894, in these five villages on 9.11.2007 and  

10.11.2007.  Section  6  declarations  were  issued  on  20.11.2007,  

22.11.2007 and 23.11.2007. Notices under Section 9 were issued on  

22.11.2007 and 23.11.2007 and the date of hearing fixed on 7.12.2007  

and 8.12.2007.  Awards  were  made  on 20.12.2007,  22.12.2007 and  

26.12.2007. Subsequent thereto,  a letter was written by the NHDC,  

the company on 3.8.2007 to the Member (Rehabilitation),  Narmada  

Valley  Development  Authority  for  approval  of  land  acquisition  of  

these five villages, which reveals that after having surveyed the area,  

there were certain practical difficulties in raising the level of the roads  

above BWL in respect of certain areas (land in dispute) because the  

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level of the agricultural lands is lower than the BWL.  Therefore, the  

land would be submerged in the back water submergence and it would  

require an amount of 11 crores to raise the level of the roads upto  

BWL. Thus, acquisition of remaining 284.03 hectares of land of these  

five villages was requested to be approved for acquisition.  

However,  it  is evident from the letter dated 5.10.2007 of the  

NVDA that the land in dispute measuring 284.03 hectares in the said  

five  villages  would  not  be  submerged,  in  fact,  it  would  be  water  

locked, as it  reads that “some area of a village becoming island or  

houses  surrounded  by  flood  or  a  village  which  has  become  an  

unviable  unit”.  The  acquisition  of  284.03  hectares  of  land  of  five  

villages was approved and grant of an amount of Rs.550 lakhs was  

made.  

107. By letter  dated 2.4.2009, the previous plan was reconsidered in  

respect of  acquiring the said land for five villages  considering that  

the cost of rehabilitation would be much more than raising the level of  

the road at the cost of 11 crores, which would prevent this area from  

being water locked.  

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108. Therefore, the case of the State had been that the land in dispute  

measuring 284.03 hectares would not  be submerged temporarily or  

permanently,  rather  it  may at  the most become in-accessible  at  the  

time of  highest flood situation exceptionally and in case the level of  

the road is raised, it may work as embankment and this land would not  

be submerged. Thus, on this premise, the authorities thought it proper  

to abandon the acquisition proceedings.  

109. The State  authorities  have pleaded before the High Court  by  

filing  rejoinder  affidavit  that  the  standard  practice  in  dam projects  

involving  submergence  in  India  as  prescribed  by  Central  Water  

Commission (CWC) that  all  lands and properties or the houses are  

acquired upto full  reservoir  level  (FRL) and only properties  or  the  

houses are acquired above FRL upto the Back Water Level (BWL).  

The lands above FRL will no doubt, be under water upto BWL for a  

few  hours  during  floods  due  to  back  water  and  the  lands  will  be  

benefited due to silting during that period. The land which remains  

temporarily under water above FRL and upto BWL is not acquired as  

after a few hours the backwater recedes and the land is available for  

normal agricultural purposes. The lands about 5 to 10 feet below FRL  

should also not be acquired as these lands are likely to come out of  

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water by 15th December every year as the water is gradually used from  

the dam for irrigation and/or power generation. Presently the practice  

is that the land which remains submerged under water temporarily  is  

generally given on pattas to farmers as it is fit for agricultural purpose.  

 110.    The order of the High Court dated 22.6.2007 in the interim  

application filed by the respondents reads as under:

“….The consequence is that the five villages  namely Gunjari, Paladi, Sailani, Bakhatgarh and  Rampura could be affected by the submergence at   189  M  and  its  back  water  on   account  of  the   closure  of  the  radial  and  sluice  gates  of   Omkareshwar Dam.  

Regarding the other villages, the case of the   petitioner  as  well  as  the  respondents  contesting  before us is that rehabilitation measures are yet to  be  completed  in  these  villages  and  that  these   villages  were not  to be submerged at  189 M on  account  of  the  closure  of  the  radial  and  sluice   gates  of  Omkareshwar  dam.  We  are  of  the   considered opinion that Court takes up the matter   and finally decides the grievance of the petitioner   with  regard  to  rehabilitation  measures.  The   respondents  should  not  severe  electricity  and  water supply and demolish pubic buildings such as   schools etc. in these 25 other villages or take up  any coercive step which would force the oustees to  leave the villages during the pendency of the writ   petition  and  until  the  oustees  receive  all  their   rehabilitation benefits.   We accordingly restrain   the  respondents  from  severing  electricity  and  water supplies  and demolishing public buildings   such as schools etc. in the other 25 villages and  

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from taking any coercive step which will force the   oustees to leave these villages during the pendency   of the writ petition or until further orders passed  by this Court.”   

111.   So  far  as  the  acquisition  of  land  in  such  a  situation  is  

concerned, even the rehabilitation schemes under the NWDT Award,  

provided  that  the  BWL  at  the  highest  flood  level  in   the  Sardar  

Sarovar would be worked out by the CWC in consultation with the  

States of Madhya Pradesh and Gujarat. The other relevant part reads  

specifically “the lands which are to be compulsorily acquired”.       

112.     A  reference  Award  made  in  this  case  on  4.8.2009  also  

particularly reveals that “the property acquired under the project will  

not be covered by water, but after filling of water, it will be difficult  

for the villagers to reach upto that level” and the symbolic possession  

had been taken on 8.12.2007 as is evident from para 29 of the said  

Award.  

113. In the instant case, the issue to be determined is whether it is  

necessary to acquire this land compulsorily, likely to be submerged  

temporarily  or  permanently  and  also,  whether  the  acquisition  

proceedings   had  reached  the  stage  of  no  return,  i.e.  it  cannot  be  

abandoned.  Undoubtedly,   most  of  the  land  in  these  five  villages  

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which was likely to be submerged temporarily and permanently below  

the FRL plus MWL and land affected by back water resulting from  

MWL plus 141.21 mtrs. (460 ft.) had already been acquired and  there  

is  no dispute in respect  of the same.   The dispute remains only in  

respect  of  284.03  hectares  of  land  in  these  five  villages,  wherein  

BWL in exceptional floods etc.,  may make the said land water locked  

though  it may not be submerged  permanently.

Whether submergence temporarily for a very short period in an  

exceptional  flood  situation,  warrants  acquisition  of  the  land  in  

dispute?  

114. The High Court  while dealing with  the  said applications  did  

not deal with the issue specifically as to whether the possession of the  

land has actually been taken or even symbolic possession has been  

taken by the State;  as to whether  the persons interested have been  

evicted from the said land; or they have voluntarily abandoned their  

possession; or they are still in physical possession of the land; or as to  

whether  after  being evicted they had illegally  encroached upon the  

land in dispute. A direction has been issued observing as under:

“The lands in these 5 villages of the oustees were  acquired  by  notifications  issued  under  the  Land  

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Acquisition Act, and the NVDA has now passed an order   on  2.4.2009  saying  that  the  land/property  of  these  5   villages shall not be acquired and the action taken till   now be  dropped  as  per  the  provisions  of  law…….The  respondents,  therefore,  will  have  to  provide  all  the  rehabilitation benefits  to the villagers of the 5 villages   and for  the  purpose  of  rehabilitation,  the  order  dated  2.4.2009 of the NVDA is of no consequence. The two IAs  stand disposed of.”  

115. The appellants herein have raised an objection that the tenure  

holders of the said land are still in actual physical possession and they  

had never been evicted.  However, on behalf of the respondent i.e.  

Narmada Bachao Andolan, Shri Alok Agrawal, Chief Activist of the  

organisation, has filed the counter affidavit dated 1.2.2010 before this  

Court, wherein it has specifically been mentioned as under:

(a) The acquired lands/properties  of  these 5 villages  stood  already  vested  in  the  State.   The  State  is  not  competent to withdraw the land acquisition proceedings.  

(b) The order dated 2.4.2009 as not to acquire the land  of the five villages is a nullity and void ab initio because  the possession of  the lands has  already been taken.  The land has  already vested in the State.  This may be  seen from the judicial orders of Reference Courts Devas;  the  land record  of  the  revenue  authorities  of  the  State  Government, the order of the Land Acquisition Officer  and the affidavits of the concerned oustees which were  placed on record before the said authorities.  

(c) The order  of  the Land Acquisition Officer  dated  14.8.2008 to  Tahsildar,  Bagli  district  Devas  asking for  

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mutation in favour of NVDA, makes it evident that as the  land acquisition proceedings in question stood completed  and possession of the land had been taken by the State.

(d) The order in mutation proceedings had never been  challenged by NVDA and thus,  attained finality  and it  makes it clear that the possession is with the NVDA.

(e) As  per  Section  117  of  the  M.P.  Land  Revenue  Code, the record of rights entered in the land records is  presumed to be correct, until the contrary is proved.  

(f) Information  received  from  the  Tahsildar,  Bagli  under the Right to Information Act reads that the lands  and  houses  of  these  5  villages  had  already  been  transferred in favour of NVDA.  

(g) The  Reference  Court  recorded  a  judicial  finding  that  the  possession  of  concerned  land/houses  of  these  villages  was  taken  on  8.12.2007.  On  this  basis,  the  Reference Court directed the payment of interest on the  compensation  amount  from  the  recorded  date  of  possession,  i.e.  8.12.2007 upto the date of payment  @  9% p.a. for one year and 15% p.a. after one year.  

(h) The oustees of the five villages had filed a large  number  of  affidavits  before  the  authorities/courts  concerned  stating  that  possession  of  their  lands/properties  acquired  had  been  taken  in  December 2007.                                  (Emphasis added)   

116.  There  are  claims  and  counter  claims  regarding  “taking  

possession of the land”.  It is submitted on behalf of the appellants  

that symbolic possession in the facts and circumstances of the case  

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does not meet the requirement of law and, therefore, the State has a  

right  to  withdraw  the  acquisition  proceedings.  On  the  contrary,  

learned  counsel  appearing  for  the  respondents  would  submit  that  

taking of actual physical possession of the land is not necessary and  

taking symbolic possession is enough.  More so, such a submission  

has become merely academic, as the oustees are not in actual physical  

possession of the land in dispute.  

117. The question does arise  as  to what is  the meaning of taking  

possession  –  whether  it  is  taking  of  actual  physical  possession  or  

symbolic/paper  possession  which  would  be  sufficient  to  meet  the  

requirement of law.  

118.     In Balwant Narayan Bhagde v. M.D. Bhagwat & Ors., AIR  

1975 SC 1767, this  Court  while dealing with the issue,  referred to  

various provisions of the Code of Civil Procedure, 1908 particularly  

Order XI Rules 35, 36, 96 and 97 and  came to the conclusion :–

“19……. If the property is land over which does  not stand any building or structure, then delivery   of possession over the judgment-debtor’s property   becomes  complete  and  effective  against  him the  moment the delivery is effected by going upon the   land,  or  in  case  of  resistance,  by  removing  the   person resisting unauthorisedly. A different mode  of delivery is prescribed in the Code in the rules   

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aforesaid in regard to a building, with which we  are not concerned in this case.”                                                                                        

119.      In State of T.N. & Anr. v.  Mahalakshmi Ammal & Ors.,  

(1996) 7 SCC 269, this Court held as under:  

“Possession of the acquired land would be taken   only by way of a memorandum, Panchnama, which  is a legally accepted norm”.  

120.      Similarly in Balmokand Khatri Educational & Industrial  

Trust, Amritsar v.  State of Punjab & Ors., (1996) 4 SCC 212, this  

Court  held as under:–

“It  is  now  well  settled  legal  position  that  it  is   difficult  to  take  physical  possession  of  the  land  under compulsory acquisition.  The normal mode  of taking possession is  drafting the panchnama  in the presence of panchas and taking possession  and  giving  delivery  to  the  beneficiaries  is  the   accepted mode of taking possession of the land.”                                                       (Emphasis added)

121.     In  P.K.Kalburqui v.  State of Karnataka, (2005) 12 SCC  

489, this Court held that if the land is vacant and unoccupied, taking  

symbolic  possession  by  the  State  Government,  would  amount  to  

taking possession.  In the said case, in spite of the fact that symbolic  

possession of the vacant land had been taken, the Hon’ble Minister  

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directed the issuance of a Notification under Section 48 of the Act  

1894  on  the  basis  of  his  understanding  of  the  law  that  symbolic  

possession did not amount to actual possession and that the power to  

withdraw  from  acquisition  could  be  exercised  at  any  time  before  

actual possession was taken.  This Court has held as under:-   

“There can be no hard-and-fast rule laying down  what act would be sufficient to constitute taking of   possession of land. In the instant case the lands of   which  possession  was  sought  to  be  taken  were  unoccupied, in the sense that there was no crop or   structure  standing  thereon.  In  such  a  case  only  symbolic  possession  could  be  taken…  such  possession would amount to vesting the land in the  Government.”   

122.     In National Thermal Power Corporation v.  Mahesh Datta  

& Ors.,  (2009)  8  SCC 339,  after  resorting to  the  urgency  clauses  

under Section 17 of the Act 1894, a possession certificate had been  

issued on behalf of the Collector, Ghaziabad on 16.11.1984 making it  

evident that possession of lands in question therein, had been taken.  

After making of the Award under Section 11 in some cases, references  

under  Section  18  of  the  Act  1894  had  also  been  decided  by  the  

District Judge, Ghaziabad, vide order dated 12.10.1993 and persons  

aggrieved approached the Allahabad High Court  for enhancement of  

compensation.  It was at this stage that the NTPC Ltd.  realized that it  

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would not be possible for certain reasons for  it  to have the power  

plant on the land under acquisition and site thereof should be shifted.  

Thus,  inter-alia on  the  premise  that  possession  of  the  entire  land  

notified under Section 4 of the Act 1894 had not been taken, the State  

of U.P. issued a Notification dated 11.11.1994 under Section 48 of the  

Act 1894, denotifying the land.  The said notification was challenged  

by the “persons interested” therein by filing the writ petition before  

the  High Court.  The  writ  petition  was  allowed by the  High Court  

holding  that  mere  symbolic  possession  was  enough  to  meet  the  

requirement of taking possession under Section 16 of the Act 1894  

and on taking such symbolic possession, the land vested in the State  

free from all encumbrances could not be divested.  

           This Court held that taking over of possession in terms of the  

provisions of  the Act would however, mean actual possession and  

not symbolic possession. The Court further observed:

“27.  When  possession  is  to  be  taken  over  in   respect  of  the  fallow  or  parti   land,  a  mere  intention to do so may not be enough……… If the  lands in question are agricultural lands, not only   actual  physical  possession  had  to  be  taken but   also  they  were  required  to  be  properly   demarcated….”  

xx xx xx xx

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“44…….The burden of proof could be discharged  only by adducing clear and cogent evidence…..”

                                                                                (Emphasis added)

123.    In this regard, it may also be pertinent to deal with mutation  

proceedings  heavily  relied upon by the respondent  no.  1.   Mutation  

proceedings are much more in the nature of fiscal inquiries. “Mutation  

of a property in the revenue record does not create or extinguish title,  

nor has it any presumptive value of title. It only enables the person, in  

whose  favour  the  mutation  is  entered,  to  pay  the  land  revenue  in  

question.”  (Vide:  Thakur  Nirman  Singh  & Ors.  v.  Thakur  Lal  

Rudra Pratap Narain Singh, AIR 1926 PC 100;  Smt. Sawarni v.  

Inder Kaur & Ors., AIR 1996 SC 2823;  R.V.E. Venkata Chala  

Gounder  v.   Arulmign Ciswesaraswamy & V. Temple  & Anr.,  

AIR 2003 SC 4548; and Suman Verma v. Union of India & Ors.,  

(2004) 12 SCC 57).

Therefore,  entries in the revenue record are of no assistance to  

determine the present controversy.  

124. In view of the above, law on the issue can be summarized  to  

the effect that no strait-jacket formula can be laid down for taking the  

possession of the land for the purpose of Sections 16 and 17 of the Act  

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1894. It would depend upon the facts of an individual case. In case the  

land is fallow and barren  and does not have any structure  or crop on  

it, symbolic possession may meet the requirement of law. However,  

this would not be the position in case crop is standing on the land or a  

kachha or pacca structure has been raised on such land. In that case,  

actual physical possession is required to be taken.  There may be a  

case where the acquiring authority is in possession of the land, as the  

same has already been requisitioned under any law or the property is  

in possession of a tenant, in such a case symbolic possession qua the  

tenure holder would be sufficient.   

125.  In the instant case, in view of the fact that land in dispute is an  

agricultural  land and has 167 dwelling houses, law in fact  requires  

taking over the actual physical possession.  The respondent no. 1 has  

asserted that the tenure holders are not in possession of the said land.  

We considered it proper to appoint a Commissioner and to have his  

report.   Thus,  vide order  dated 24.2.2011, this  Court  requested the  

District Judge, Indore to have an inspection of the lands in dispute in  

five  villages  and  submit  the  report  as  who  is  in  actual  physical  

possession of the same.  

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126.   In  pursuance  of  our  direction  dated  24.2.2011,  Shri  M.K.  

Mudgal,  learned  District  and  Sessions  Judge,  Indore  (M.P.)  has  

submitted a detailed report  after  having conducted spot inspections  

and examining  all the tenure holders in respect of the land in dispute  

in presence of Shri Alok Agrawal, Chief Activist of Narmada Bachao  

Andolan,  (who  remained  present  in  this  Court  throughout  the  

proceedings also and had been instructing the learned counsel for the  

said party) and recorded the following findings of fact:  

(1)  So  far  as  the  land  in  dispute  in  villages  Dharadi,  

Guadi, Kothmir, Nayapura and Narsinghpura, having an  

area of 284.03 hectares  is concerned, the original tenure  

holders are in actual physical possession;  

(2) The  Bhumiswamis  (tenure  holder)  had  sown the  

crops on the said land;  

(3) They have admitted that they had been sowing the  

crops even after acquisition proceedings.  

(4) The  tenure  holders  are  in  possession  of  the  

acquired land on the ground that they had still not been  

rehabilitated as per the scheme of the State Government.  

Therefore,  they are compelled to continue growing the  

crops  and  also  using  the  other  parts  of  the  land  for  

habitation.

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(5) They  are  in  possession  of  their  respective  lands  

already acquired as they have not yet been offered the  

land in lieu of the land so acquired and they would make  

a  shift  from the acquired  land after  compliance  of  the  

said obligation by the State.  

The report concludes as under:  

“Therefore,  on  the  spot  inspection  and  the   recorded  evidence,  there  is  no  doubt  in  my  mind  to   conclude that the standing crops have been sown by the   former  Bhumiswamis  and  the  acquired  lands  of  five   villages  in  questions  are  actually  in  possession  of  the   former  Bhumiswamis  even  now.  It  has  also  got  to  be   deduced  further  that  N.V.D.A.  has  never  been  in  possession of  the aforesaid lands since the acquisitions  of the same.”                                          (Emphasis added)

127. We have  seen  the  D.V.Ds.  and C.Ds.  of  the  videos,  prepared  

during the time of inspection by District Judge, Indore in the presence  

of  hundreds of tenure holders and officials.  It is evident from the same  

that the tenure holders identified their  land in presence of Shri  Alok  

Agrawal, the social activist.  The entire land is having wheat, cotton,  

maize and millet crops. The said tenure holders have admitted that they  

had been cultivating the land for last several years and they had never  

been dispossessed from the land in dispute by the State.  Shri Agarwal  

had been shown advancing legal submissions before the District Judge,  

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Indore,  justifying  why  the  original  tenure  holders  are  still  in  

actual/physical possession of the land.

128.    The District Judge, Indore, has recorded the statements of all the  

tenure holders. For example, we quote the statement of one Shri Devi  

Singh S/o Pahar Singh r/o  Village: Nayapura, Post: Ratanpur, Tehsil:  

Bagli, District: Devas, Madhya Pradesh. The same reads as under:  

01  -    My land is in Village Nayapura.  The land is in   Shamlati,  its  area is  approximately twenty  acres.   The  said land is affected by the Omkareshwar Dam Project.   On  8th December,  2007,  the  then  Land  Acquisition   Officer,  Shri  Chaturvedi  came  to  Village  Nayapura,   gathered  the  farmers  together  and  informed  them  alongwith me that the land no longer belongs to any of   us and it has now become the State Government’s land   and the possession of the said land was with the State.   At that time, the land was vacant.

02-        From that day onward, the Government has not   been collecting land revenue for the said land and the   concerned society has stopped extending the facilities of   providing  seeds  and  fertilizers.   I  alongwith  other   farmers have submitted an affidavit in this regard in the   High  Court  at  Jabalpur.   Under  the  Resettlement  &  Rehabilitation Scheme, we were supposed to get land in   lieu  of  land  acquired.   We  had  been  shown  land  in   village  Khorda,  Tehsil  Harsud,  but  some other  people   had  already  encroached  upon  some  of  that  land  and   some  of  it  was  grazing  land  which  was  unfit  for   agriculture.  That is why we have not taken the land that   was offered to us.

03 -         We have not yet been given land as under the  Rehabilitation Policy, that is why we are cultivating the  

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acquired land.  At present our crop is standing on the   site.  As  soon  as  we  get  land  under  the  Rehabilitation  Policy, we will vacate possession of the acquired land.  

04  -       Yesterday, my land was inspected by the District   Judge, Indore.  My crops were found to be standing at   the site, which was taken on record and witnessed by me.  

The  record  was  read  aloud  to       Signed  at  my  instruction the deponent and he agreed                        Sd/- that it was correct.                                                                                  ( M.K. Mudgal )

129. In view of the above, this becomes crystal clear that none of the  

tenure  holders,  so  far  the  land  in  dispute  is  concerned,  has  been  

evicted/dispossessed.  All the tenure holders are enjoying the said land  

without  any  interference.   The  tall  claims  made  by  the  respondents  

before  the  High Court  were  totally  false.   The  High Court  was  not  

justified  in  entertaining  their  applications  in  this  regard,  without  

verifying the factual aspects.      

130. In such a fact-situation, as the actual physical possession has  

not yet been taken by the authorities and the entries in the revenue  

records  etc.  are  not  the  conclusive  proof,  therefore,  the  State  

Government is competent to exercise its power under Section 48 of  

the Act 1894. However, it will be subject to the decision on another  

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relevant  issue  regarding  submergence  of  the  land  in  dispute  

permanently or temporarily which is to be considered hereinafter.  

131. Before adverting to the next issue, it is desirable to deal with  

the conduct of the NBA.  The question is not of justification of the  

tenure  holders  to  retain  possession  of  the  land,  rather  it  had  

emphatically  been  argued  by  Shri  Sanjay  Parekh,  learned  counsel  

appearing for the said applicant/respondent, that powers under Section  

48 of the Act 1894 could not be resorted to because the tenure holders  

had already been physically dis-possessed and land stood vested in the  

State.   Therefore,  the  same could not  be divested.  The matter  was  

argued  by Shri  Sanjay  Parekh  at  great  length  to  impress  upon the  

Court  that  the  tenure  holders  had  been actually  dis-possessed  long  

ago.  This fact was denied by the State. It was only after considering  

the rival submissions on behalf of the parties that this Court thought it  

fit  and  appropriate  to  have  a  spot  inspection  report  and  then  the  

District  Judge,  Indore,  was  asked  to  make  a  local  inspection  and  

submit  the  report.  The  report  has  been  made  after  making  an  

inspection of the area and recording statements of the tenure holders  

in presence of Shri Alok Agrawal, Chief activist of NBA and thus, we  

accept the same.  It is evident from the said report that  statements  

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made by the said applicant/respondent in the Court, in this regard are  

factually  incorrect  and  false.  The  Court  has  been  entertaining  this  

petition  under  the  bona  fide  belief  that  NBA  was  espousing  the  

grievance of inarticulate and illiterate poor farmers, with all sincerity  

and thus, would not make any misleading statement.   However, our  

belief stands fully belied.  Applicant/respondent made pleadings and  

advanced  arguments  without  any basis  only  to  secure  unwarranted  

benefits  to  those  tenure  holders.   In  the  instant  case  it  stands  

discredited totally in the eyes of this Court.  This Court had been a  

little careful and cautious in this regard, which has exposed the true  

picture.   

132. In such a fact-situation, the NBA not having personal interest in  

the case,  cannot claim to be  dominus litis.  Thus,  it  ought to have  

acted at  every stage with  full  sense of  responsibility  and sincerity.  

Earlier also, this Court in  Narmada Bachao Andolan v. Union of  

India & Ors., (1998) 5 SCC 586, has disapproved the conduct of the  

Narmada Bachao Andolan and described it to be most unfortunate that  

it had celebrated the 4th anniversary of the stoppage of work of the  

dam under the interim orders of the Court. This Court found it to be  

an  obstruction  in  the  way  of  implementing  the  R  &  R  Policy.  

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However, at that time this Court was assured by the said NBA  that  

they “shall not directly or indirectly give any cause for concern by this  

Court.”   But, in our opinion, it has not been able to keep its solemn  

undertaking given to this Court.

PUBLIC INTEREST LITIGATION:

133. It has often been stated that PIL jurisdiction should be exercised  

cautiously  in  matters  that  primarily  require  the  attention  of   the  

democratic process, or the State or those issues whose crevices and  

complexities  the  court  may  not  easily  unravel,  and  comparatively  

generously in cases involving public interest of sections of people for  

whom the administration of justice and its reach are not effective and  

the rights delivery processes, are shown to be weakened by power and  

influence.  (Vide:  R.  and  M.  Trust  v.  Koramangla  Residents  

Vigilance Group & Ors., AIR 2005 SC 894).  

134. Where the cause of action is genuinely in the general public  

interest, the court will relax the requirement of bona fides and appoint  

an amicus curiae to deal with the matter and keep the matter out of the  

power of the original  applicant.  [Vide:  M/s Holicow Pictures Pvt.  

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Ltd. v. Prem Chandra Mishra & Ors.  , AIR 2008 SC 913; and A.  

Abdul Farook (supra)].    

135. The ‘rights’ of the public interest litigant in a PIL are always  

subordinate to the ‘interests’ of those for whose benefit the action is  

brought.  The  status  of  dominus  litis could  not  be  conferred  

unreflectively  or  for  the  asking,  on  a  PIL petitioner  as  that  would  

render  the  proceedings  “vulnerable  to  and  susceptible  of  a  new  

dimension which might, in conceivable cases be used by persons for  

personal ends resulting in prejudice to the public weal”. (vide: Sheela  

Barse  v. Union of India & Ors., AIR 1988 SC 2211).

136. The standard of expectation of civic responsibility required of a  

petitioner in a PIL is higher than that of an applicant who strives to  

realise personal ends.  The courts expect a public interest litigant to  

discharge high standards of responsibility.  Negligent use or use for  

oblique motives is extraneous to the PIL process for were the litigant  

to act for other oblique considerations, the application will be rejected  

at the threshold.  Measuring the ‘seriousness’ of the PIL petitioner and  

to see whether  she/he is  actually a  ‘champion’ of the  cause of the  

individual or the group being represented, is the responsibility of the  

Court, to ensure that the party’s procedural behaviour remains that of  

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an adequate ‘champion’ of the public cause. (Vide: The Janata Dal v.  

H.S. Chowdhary & Ors., AIR 1993 SC 892;  Kapila Hingorani v.  

State of Bihar, (2003) 6 SCC 1; and  Kusum Lata v. Union of India  

& Ors., (2006) 6 SCC 180).

137. The  constitutional  courts  have  time  and again  reiterated  that  

abuse of the noble concept  of PIL is  increasing day-by-day and to  

curb  this  abuse  there  should  be  explicit  and  broad  guidelines  for  

entertaining petitions as PILs.  This Court in State of Uttaranchal v.  

Balwant Singh Chaufal and Ors., (2010) 3 SCC 402, has given a set  

of illustrative guidelines, inter alia:

(i) The court should be prima facie satisfied regarding  

the  correctness  of  the  contents  of  the  petition  before  

entertaining a PIL.

(ii) The court should also ensure that there is no oblique  

motive behind filing the public interest litigation etc. etc.    

         Therefore, while dealing with the PIL, the Court has to be  

vigilant  and it  must  ensure  that  the  forum of  the  Court  be neither  

abused nor used to achieve an oblique purpose.  

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MISLEADING  STATEMENT  AMOUNTS  TO  CRIMINAL  CONTEMPT

138.   A person seeking relief in public interest should approach the  

Court  of  Equity,  not  only with clean hands but  also with a   clean  

mind, clean heart and clean objective. Thus, he who seeks equity must  

do  equity.  The legal  maxim  “Jure  Naturae Aequum Est  Neminem  

cum Alterius Detrimento Et Injuria Fieri Locupletiorem”, means that  

it is a law of nature that one should not be enriched by the loss or  

injury  to  another.   The  judicial  process  should  never  become  an  

instrument of oppression or abuse or means to subvert justice.

139.   “The interest of justice and public interest coalesce. They are  

very often one and the same”. Therefore, the Courts have to weigh the  

public  interest  vis-à-vis  the  private  interest.   A petition  containing  

misleading and inaccurate statement(s), if filed, to achieve an ulterior  

purpose, amounts to an abuse of the process of the Court and such a  

litigant  is  not  required  to  be  dealt  with  lightly.  Thus,  a  litigant  is  

bound to make “full and true disclosure of facts”. The Court is not a  

forum to achieve an oblique purpose.    

140. Whenever the Court comes to the conclusion that the process of  

the Court is being abused, the Court would be justified in refusing to  

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proceed further with the matter.  This  rule has been evolved out of  

need of the Courts to deter a litigant from abusing the process of the  

Court by deceiving it. However, the concealed fact must be material  

one in the sense that had it  not been suppressed, it  would have an  

effect  on  the  merit  of  the  case/order.  The  legal  maxim  “Juri  Ex  

Injuria  Non  Oritur” means  that  a  right  cannot  arise  out  of  wrong  

doing,  and  it  becomes  applicable  in  a  case  like  this.   (Vide:  The  

Ramjas Foundation & Ors. v. Union of India & Ors., AIR 1993 SC  

852;   Noorduddin  v.  Dr.  K.L.  Anand, (1995)  1  SCC  242;  

Ramniklal N. Bhutta & Anr. v. State of Maharashtra & Ors., AIR  

1997 SC 1236; Sabia Khan & Ors. v. State of U.P. & Ors., (1999) 1  

SCC 271; S.J.S. Business Enterprises (P) Ltd. v. State of Bihar &  

Ors., (2004) 7 SCC 166; and Union of India & Ors. v. Shantiranjan  

Sarkar, (2009) 3 SCC 90).  

141. It is a settled proposition of law that a false statement made in  

the Court or in the pleadings, intentionally to mislead the Court and  

obtain a favourable order, amounts to criminal contempt, as it tends to  

impede the administration of justice. It adversely affects the interest of  

the public in the administration of justice. Every party is under a legal  

obligation to make truthful statements before the Court, for the reason  

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that causing an obstruction in the due course of justice “undermines  

and obstructs the very flow of the unsoiled stream of justice, which  

has to be kept clear and pure, and no one can be permitted to take  

liberties  with  it  by  soiling  its  purity”.  (Vide:  Naraindas  v.  

Government of Madhya Pradesh & Ors., AIR 1974 SC 1252;  The  

Advocate General, State of Bihar v. M/s. Madhya Pradesh Khair  

Industries & Anr., AIR 1980 SC 946; and Afzal & Anr. v. State of  

Haryana & Ors., (1996) 7 SCC 397).

142.  In K.D. Sharma v. Steel Authority of India Limited & Ors.,  

(2008) 12 SCC 481, this Court held that:  

“Prerogative  writs………  are  issued  for  doing  substantial justice. It is, therefore, of utmost necessity   that the petitioner approaching the writ court must   come  with  clean  hands,  put  forward  all  the  facts   before the court without concealing or suppressing  anything and seek an appropriate relief. If there is no   candid  disclosure  of  relevant  and material  facts  or  the petitioner is guilty of misleading the court,  his   petition  may  be  dismissed  at  the  threshold  without   considering  the  merits  of  the  claim.” (Emphasis  added)

143. While deciding the said case this Court relied upon the leading  

case  of  R. v.  General  Commissioners  for  the  purposes  of  the  

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Income Tax Act for the District of  Kensington, (1917) 1KB 486,  

wherein it had been observed as under:

“…when an applicant comes to the court to obtain   relief on an ex parte statement he should make a full   and fair disclosure of all the material facts—it says  facts, not law. He must not misstate the law if he can  help it—the court is supposed to know the law. But  it knows nothing about the facts, and the applicant   must state fully and fairly the facts; and the penalty   by which the court enforces that obligation is that if   it finds out that the facts have not been fully and  fairly stated to it, the court will set aside any action   which it  has  taken on the faith  of  the imperfect   statement…….If  the  applicant  makes  a  false   statement or suppresses material fact or attempts to   mislead the court, the court may dismiss the action   on that ground alone ….. The rule has been evolved  in the larger public interest to deter unscrupulous   litigants  from  abusing  the  process  of  court  by  deceiving it.”  (Emphasis supplied)

144. In  such  a  case  the  person who suppresses  the  material  facts  

from the court is guilty of  Suppressio Veri and Suggestio Falsi  i.e.  

suppression or failure to disclose what a party is bound to disclose,  

which may amount to fraud.

145.     In view of the above, we reach the inescapable conclusion  

that the NBA has not acted with a sense of responsibility and so far  

succeeded  in  securing  favourable  orders  by  misleading  the  Court.  

Such conduct cannot be approved. However, in a PIL, the Court has to  

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strike a balance between the interests of the parties.  The Court has to  

take into consideration the pitiable condition of oustees, their poverty,  

inarticulateness, illiteracy, extent of backwardness, unawareness also.  

It is desirable that in future the Court must view any presentation by  

the  NBA   with  caution  and  care,  insisting  on  proper  pleadings,  

disclosure of full facts truly and fairly and in case it has any doubt,  

refuse to entertain the NBA. However, considering the interests of the  

oustees,  it  may be desirable that the Court may appoint an  Amicus  

Curiae to present their cause, if such a contingency arises.  

146.      In view of the above, we are of the considered opinion that  

no order is required on the IA Nos. 196-210, 211-225 and 241-255 of  

2011  filed  under  Section  340  of  the  Code  of  Criminal  Procedure,  

1973, by both the parties, as dealing with the said applications would  

not serve any purpose.  More so, the IA Nos. 226-240 of 2011 filed  

for modification of the order dated 5.4.2011. Thus, all the said IAs  

stand disposed of.  

147. In view of the serious controversy raised in these appeals, this  

Court vide order dated 24.2.2011, requested the CWC to make a local  

inspection  and  submit  its  report  as  to  whether  the  land  measuring  

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284.03 hectares in these 5 villages, would be submerged temporarily  

or permanently or merely water locked.

148. In pursuance of the aforesaid order, the CWC after having spot  

inspection  submitted  its  report  dated  22.3.2011.  The  relevant  part  

thereof reads  as under:  

(i) Village Kothmir- ...................

“115.53  hectare  area  (under  reference)  of  this   village  falls  between  FRL  and  BWL.  This  will  come  under temporary submergence when water level exceeds  FRL (196.60 m).”

(ii) Village Narsinghpura-…………

“Out  of  the  total  21.58  hectare  area  (under   reference )  of  this  village,  19.30 hectare falls  between   FRL  and  BWL  and  will  come  under  temporary   submergence when water level is between FRL (196.60  m) and BWL.”

(iii) Village Dharadi- ……………

“The  103.09  hectare  area  of  village  (under  reference) falls between FRL and BWL, which will come  under temporary submergence when water level exceeds  FRL (196.60m).”

(iv) Village Nayapura-………………..

“The  33.83  hectare  land  (under  reference)  of   village  falls  between  FRL  and  BWL which  will  come  under temporary submergence when water level exceeds  FRL (196.60 m).”

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(v) Village Guwadi-………………

“The  10.00  hectare  land  (under  reference)  of   village  falls  between  FRL and  BWL,  which  will  come  under temporary submergence when water level exceeds  FRL (196.60m).”

(vi) Conclusion of  the  Committee:  Out  of  the  total   land  –  subject  matter  of  dispute  ad-measuring  284.03  hectare  in  the  aforesaid  five  villages;  281.75  hectare   falls  between  FRL  and  BWL,  which  will  come  under   temporary  submergence  due  to  back  water  effect.  The  remaining  2.28  hectare  area  will  not  come  under   submergence due to back water levels when water levels   are up to  BWL.

149.  The parties were given copies of the report and asked to submit  

their  objections,  if  any.  In  response  to  the  said  order,  the  parties  

submitted  their  comments/objection  to  the  report  submitted  by  the  

CWC.        

            The State Government has submitted that the report suggested  

that  2.28 hectares  of  the area  will  never  be submerged even when  

water levels are upto BWL.  However, the remaining area of 281.75  

hectares  falls  between  FRL  and  BWL,  would  be  under  temporary  

submergence due to back water  effect.  In such a fact-situation,  the  

CWC guidelines of 1997 provide that MWL at the dam site during  

maximum  flood  and  BWL  is  the  corresponding  flood  level  at  

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maximum flood in the pondage area.  Hence, when MWL occurs at  

the dam site,  BWL will occur simultaneously in the vicinity of the  

reservoir further up stream. In such a case, agricultural land affected  

by  back  water  is  not  acquired  in  a  dam  project,  as  that  land  is  

submerged only temporarily during floods hardly for 2-3 days which  

may occur rarely,  once in a period of 1000 years.  Rather the land is  

benefited due to silting during floods and is available for cultivation  

after the temporary flood recedes.  The guidelines issued by the CWC  

had  been  adopted  by  the  State  that  agricultural  land  temporarily  

coming  under  submergence  between  FRL  and  BWL  need  not  be  

acquired.  However, houses in the temporary submergence area must  

be acquired. In order to fortify its stand, the State Government had  

quoted paragraph 6.2.3. of the guidelines for preparation of project  

estimates for river valley projects of CWC March 1997. Further, State  

has placed reliance on Clause XI-II (2) of NWDT Award, which also  

provides for the same.  

150.   It has further been submitted by Shri Ravi Shankar Prasad,  

learned senior counsel  appearing for the State  that  all  the dwelling  

structures which are 167 in number would be acquired positively in  

terms of the R & R Policy and in spite of the fact that the agricultural  

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land would not be acquired, the benefits provided under the R& R  

Policy shall be granted to all such oustees who fulfill the requirement  

of the provisions of clause 1.1 which defines the ‘displaced person’  

under the  R & R  Policy and such a course will be in consonance with  

the guidelines issued by the CWC.    

151. In  view thereof,  it  has  been submitted  that  as  per  the  CWC  

guidelines, only the land covered by structures must be acquired and  

not  the  entire  land.   Therefore,  the  report  of  the  CWC should  be  

accepted with this understanding and clarification.   

152. On the other  hand,  the  Narmada Bachao Andolan – the writ  

petitioner, has submitted that the report does not require any further  

explanation, there are 167 houses situated on the concerned lands of  

these five villages which are bound to be acquired.  The remaining  

entire land has to be acquired in view of the decision taken by the  

NVDA  in its 144th meeting dated 5.10.2007, wherein it was resolved  

that it  was necessary to acquire the land in dispute and subsequent  

decisions  taken  by  the  parties,  particularly,  dated  25.3.2009  and  

2.4.2009, are arbitrary, malafide and unconstitutional.  Under the R &  

R  Policy,  even  any  land   temporary  submerged,  is  bound  to  be  

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acquired. In support of such a contention, reliance has been placed on  

the definition of “displaced person” contained in Clause 1.1 of R & R  

Policy which speaks of the person whose land is likely to come under  

submergence whether temporarily or permanently.  Further reliance  

has also been placed upon the judgment of this Court in  Narmada  

Bachao Andolan – II (Supra)  providing for the same and in view  

thereof,  it  has  been  submitted  that  the  land  is  compulsorily  to  be  

acquired.  

153.   An extract from guidelines for preparation of project estimates  

for river valley projects of CWC March 1997 is reproduced below:-

“6.2.3.   …….

“Generally acquisition may be done upto FRL  only.  The area between FRL & MWL may be   acquired  only  if  the  submerged  land is  fertile   and the duration  of  submergence beyond FRL  upto MWL is long enough to cause damage to   crops i.e. over 15 days duration. (for acquisition  of  land  the  effect  of  back  water  need  not  be   taken into consideration).

    xxx               xxx              xxx             xxx

 All  structures  coming  under  submergence  between FRL and MWL should be acquired. If   the structures coming under submersion are of   religious  or  archeological  interest,  provision  must  be  made  for  re-establishing  these   structures above MWL”.

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154. The Clause  XI – II  (2)  of  the NWDT Award for the Sardar  

Sarovar Project reads as under:  

     “Madhya Pradesh and Maharashtra shall also  acquire  for  Sardar  Sarovar  Project  under  the   provision  of  the  Land  Acquisition  Act  1894,  all   buildings  with  their  appurtenant  land  situated   between FRL + 138.63 m (455’) and MWL + 141.21  m (460’) as also those affected by the Back water   effect resulting from MWL = 141.21 m (460’).”

155. Reason for not acquiring land between FRL and BWL (MWL  

at dam site):-

(i) The CWC guideline 1997 and clause XI.II(2)   of NWDTA provision mentioned above clearly   states  that  the  agricultural  land  affected  by   BWL is  not  acquired in  a dam project  as  a   policy matter.

(ii) It  will  submerge  only  temporarily  during  maximum flood once in 1000 years.

(iii) The land gets benefited due to silting during   flood  and  will  be  available  for  cultivation  after flood recedes. It becomes more fertile.

(iv) The land gets only submerged temporarily in   BWC due to flood (once in 1000 years) and  should not be left unused. It will be a national   loss.

(v) The land may get encroached if it is acquired  and left without use as it is very fertile.  

(vi) …………………………..”                

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156. In  Narmada  Bachao  Andolan  –  II (Supra),  the  Court  has  

placed  reliance  upon the  report  of  the  Narmada Control  Authority  

(NCA),  dealing  with  the  NWDT  Award,  wherein  it  has  been  

mentioned as under:  

“47. The Award, as noticed hereinbefore, contained  two  sub-clauses  relating  to  the  directions  on  the   State Government for compulsory acquisition of the   land  by  the  States  of  Madhya  Pradesh  and  Maharashtra  under  the  provisions  of  the  Land  Acquisition Act.  This obligation on the part of the  State to acquire land is, thus, neither in doubt nor in   dispute.  The  additional  directions  are  that  those  persons  whose  75  per  cent  or  more  land  of  a   continuous holding is  required to be compulsorily   acquired, will have an option to compel compulsory   acquisition  of  the  entire  contiguous  holding;  and  acquisition  of  buildings  with  their  appurtenant   land situated between FRL + 138.68 metres (455')   and MWL + 141.21 (460') as also those affected by   the  backwater  effect  resulting  from  MWL  +  1451.21 metres. The submergence due to maximum  water  level  and backwater  would  take  place  only   after it reaches full height.     xxx                 xxx                 xxx               xxx

50. …….

  Further it was decided as per decision in the last   meeting  of  the  Sub-group  all  possible   arrangements  for  R&R  should  be  made  by  the   concerned State Govts.  For completing the same  in all respect both in regard to oustees affected by  the permanent as well as temporary submergence   six  months  ahead  from  submergence.   Actual   

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allotment  of  land,  house  plot  and  payment  of   compensation  etc.  and  not  merely  offer  of  such  facilities as per the R&R package should be made   in respect of all PAFs (both categories of affected   by permanent and temporary submergence) except   in the case of hardcore PAFs who refuse to accept   the package and unwilling to shift.        Temporary submergence even for a short  period can affect the oustees badly and that it is   desirable to keep this in mind while rehabilitating  the oustees.”                             (emphasis supplied)

                                             157.     If we read the above referred  to provisions of the R&R Policy,  

findings in NWDT Award, project report prepared by CWC in March  

1997  and  observations  made  in  Narmada  Bachao  Andolan  –  II  

(Supra) and analyse  it properly, the following picture emerges:

(i) In  case  the  land/dwelling  unit  of  the  tenure  holder  is  

submerged temporarily, he is entitled for the benefit of R&R  

Policy;

(ii) In  case  of  temporary  submergence  of  the  agricultural  

land between FLR and MWL and those affected by the back  

water affect resulting from MWL, only the buildings with their  

appurtenant land would be acquired.  But the agricultural land  

is not to be acquired; and

(iii) In  case,  the  dwelling  units  are  acquired  because  of  

temporary submergence, such persons shall be entitled for the  

benefits under R&R Policy.

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158.   We have not only considered the rival submissions made by  

learned counsel for the parties but in view of the fact that the matter is  

extremely  technical,  we  requested  the  CWC  to  depute  Mr.  U.K.  

Ghosh, Chief Engineer (NDA – CWC), who had been the Chairman  

of the Committee,  to render assistance as the Court wanted certain  

explanation/clarification  from  his  team,  thus  called  them  in  the  

Chambers on 27.4.2011 and again on 5.5.2011.  We discussed various  

aspects of the report and objections filed by the parties. They have  

explained the concept of BWL and Dam Overtopping as under:

BWL :   BWL in the upstream of a dam is formed by  

incoming  flood  while  passing  through  the  reservoir  

created  by  artificial  obstruction  in  a  river  channel  by  

construction of an weir or a dam.

Dam  Overtopping :  Dam  overtopping  implies  water  

flow over the dam top.  Flow of water over the dam top  

may occur due to:

(a) Increase in water level in the reservoir higher than  the top level of the dam due to an inflow volume  greater than the project design flood, due to under- estimation  of  the  same  at  the  time  of  project  planning and design.  

(b) Mechanical failure in reservoir operation or due to  human negligence.

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On the main issue as to whether the land in dispute is to be  

acquired  or  not,  the  relevant  part  of  their  written  opinion  dated  

6.5.2011 reads as under:  

  “As per yearwise record of maximum flood discharge   at  Omkareshwar  dam,  since  1951  up  to  2003  (53   years), the flood discharge never exceeded the design  spillway capacity of 69,000 cumecs.  The statement of   yearwise  maximum  floor  discharge  is  enclosed  at   Annexure – I.  From the Standard Project Flood (SPF)  hydrograph, as adopted for working out the backwater   level in the Omkareshwar Reservoir,  it is noted that   duration  of  flood  magnitude  above  design  spillway   capacity  at FRL is about two days only.   Therefore,   during Monsoon season temporary submergence due  to backwater effect above FRL will not be more than 4  to 5 days.  

In  respect  of  non-Monsoon  period  it  is  to  mention that there will be daily regulated release from  both  Indira  Sagar  Dam  in  the  upstream  of   Omkareshwar dam as well as from Omkareshwar dam  itself  for  power  generation  and  other  commitments.   The reservoir level at Omkareshwar dam are likely to   be  maintained  within  FRL  by  suitable  reservoir   operation at all times during non-monsoon period.  

In  the  present  case,  the  disputed  land  ad- measuring  284.03  hectares  between  FRL  and  BWL  comes under temporary submergence for a duration of   less  than 15 days when a flood  of  SPF magnitude,   which is 1 in 1000 years return period flood for this   project  impinges  the  reservoir  at  FRL.  Therefore,   keeping in view all the above points given in Para 2(i)   to  Para 2(iv),  the  Committee  is  of  the view that  the   agricultural lands within FRL and BWL  need not be  acquired as  per  the  guidelines  for  preparation  of   Project, Estimates for River Valley Projects prepared  by Central Water Commission in March, 1997.”

      (Emphasis added)

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159. In  view of  the  expert  opinions  rendered  by  CWC and other  

materials  on  record,  we  reach  the  inescapable  conclusion  that  the  

agricultural land of these five villages is not to be acquired as it may  

only be under temporary submergence for a very short period, which  

occurs  throughout  the  country  during  floods  in  monsoon.   Such  a  

submergence is always beneficial to agricultural produce as the land  

gets enriched due to silting during the flood and becomes more fertile.  

More so, such an acquisition is not in the interest of the State as the  

land cannot be put to any use whatsoever, and there is a possibility  

that such land would be encroached upon by unscrupulous elements.   

160. CONCLUSIONS/RESULT:     (i) Civil  Appeal  Nos.  2115-2116/2011  filed  by  the  State  of    

M.P. and NHDC  

These appeals involved two issues namely, (i) allotment of land  

in lieu of land acquired; and (ii) entitlement of major son to get the  

allotment of land as a separate family.   So far as the first  issue is  

concerned,  in  respect  of  the  same,  we  hold  that  in  view  of  the  

provisions contained in  R & R Policy, the State Authorities are under  

an obligation to allot the land to the oustees “as far as possible”.  In  

case an oustee has not accepted the compensation/SRG or has any  

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grievance in respect of area/quality/location of land allotted or for any  

other  entitlement,  he  may  approach  the  GRA  and  the  GRA  will  

adjudicate upon the issue and pass an appropriate order in individual  

cases  after  giving  an  opportunity  of  hearing  to  all  the  parties  

concerned. Needless to say, the person aggrieved by the order of GRA  

shall  be entitled to approach the High Court  for  appropriate  relief.  

However, in case of private person, the application/petition  would be  

in the name of that individual person duly supported by his affidavit.

So far as the issue of entitlement of major son for allotment of  

land  as  a  separate  family  is  concerned,  our  conclusion  is  in  the  

negative.  In other words, there is no such entitlement.     

(ii) Civil Appeal No. 2082/2011 filed by   NBA   

This appeal involved three issues namely (i) entitlement of land  

to the landless labourers;  (ii)  applicability  of NWDT Award in the  

Omkareshwar dam project; and (iii) entitlement of allotment of land to  

the  oustees  of  five  villages  already  submerged.  Our  conclusion  in  

respect of Issue Nos. (i) & (ii) is  in  the negative. However, on Issue  

No.(iii),  the  oustees  shall  be  entitled  for  the  relief  as  given  to  the  

oustees on Issue No. (i) in Civil Appeal Nos. 2115-2116/2011.  

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(iii) Civil Appeal Nos. 2083-2097/2011 and 2098-2112/2011

These appeals  have been preferred by the  State  of  M.P.  and  

NHDC in respect of acquisition of land of five villages, wherein the  

State wants to withdraw the acquisition proceedings. Our conclusion  

is that in the fact-situation of the case, the State is entitled to abandon  

the land acquisition proceedings in exercise of its power under Section  

48 of the  Act 1894. However, it shall not apply to 167 dwelling units  

on the said land. Such persons whose dwelling units are acquired shall  

be entitled for the benefit of  R & R Policy to the extent provided  

therein.  The State shall establish the roads etc. after raising the height  

of the Bandh as proposed by the Authorities.

(iv)    The IA. Nos. 196-210, 211-225, 241-255 of 2011 and  226-

240 of 2011 filed by both the parties under Section 340 Cr.P.C., do  

not require to be dealt with  in view of our observations made in para  

146 of this judgment.   

All  the  appeals  and IAs.  stand  disposed of  accordingly.  No  

order as to costs.      

161. We have been given to understand that on the Narmada River,  

in the State of Madhya Pradesh, in all 29 major and minor projects are  

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contemplated.  Some of them have already been completed, but on  

account of stay order by the court/Authority some projects could not  

be completed.  It is unfortunate that in spite of the fact that a huge  

amount  has  been  spent,  yet  no  one  is  able  to  reap  the  fruits  of  

investment.  The State should take immediate steps to get the final  

verdict  in  such  cases  or  stay  vacated  and  start  the  project  at  the  

earliest.   

162. Before parting with the case, we record our deep appreciation  

for the assistance rendered to this Court by Shri M.K. Mudgal, learned  

District  Judge, Indore,  and officials of the CWC,  particularly Shri  

U.K. Ghosh, Chief Engineer (NBP), CWC, Shri M.P. Singh, Director  

(FCA), CWC, and Shri D.P. Singh, Director (ND&HW), CWC, New  

Delhi.       

                                                                   ……..…………………J.        (J.M. PANCHAL)

      ………………………..J.        (DEEPAK VERMA)

      ………………………..J. New Delhi,        (Dr. B.S. CHAUHAN) May 11, 2011

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