REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3726 OF 2011                

Narmada Bachao Andolan                                              ... Appellant  

                                             Versus

State of Madhya Pradesh                                ...Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order  

dated 16.12.2010 passed by the Madhya Pradesh High Court, Jabalpur  

in Writ Petition No. 1360 of 2009.  

2. Facts and circumstances giving rise to this appeal are as under:  

A. In the year 1972, the State of Madhya Pradesh conceived a dam  

to provide irrigation facilities to farmers of Khargone  district.  

The  dam,  on  filling  upto  full,  would  cause  submergence  of

1258.59 hectares of land, out of which 1037.715 is private and  

206.635 is government  and 14.24 hectares is  forest land.

B. On  10.1.1992,  a  detailed  Project  Report  was  prepared  and  

submitted to the State Government and  the Final Project Report  

was  approved  by  Technical  Committee  of  Central  Water  

Commission vide order dated 6.5.1997. Clearance to the project  

was given by the Government of India. It was on 10.10.2002 that  

the project was accorded Environmental and Forest clearance.   

C. The Cabinet of Ministers in its meeting dated 4.10.2002 approved  

payment of Special Rehabilitation Grant (hereinafter called SRG)  

to be paid to oustees, who would not ask for land in lieu of land  

acquired. As a consequence thereof, order dated 28.12.2002  was  

issued to the same effect in the name of the Governor of the State  

of Madhya Pradesh.  

D. On  23.5.2004,  construction  of  dam  site  commenced  and  was  

completed  upto  crest  level  in  the  year  2008;  only  gates  were  

required to be installed so as to achieve full reservoir level of 317  

metres.  Subsequent  thereto,  Notification  dated  5.3.2008  was  

issued regarding submergence of four villages,  namely, Sonud,  

Nimit, Bedhaniya and Khamid.  

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E. Appellant approached the High Court  by filing writ  petition  

No. 1360 of 2009 claiming various reliefs,  inter-alia, to stop further  

construction which may cause submergence so that displaced families  

are resettled and rehabilitated in 6 months before the submergence;  to  

direct State Government to provide irrigated agricultural land to eligible  

oustees including encroachers and landless labourers;   to declare the  

order  dated  7.6.1991  passed  by  Narmada  Valley  Development  

Department (hereinafter called NVDD) amending para 5.1  of the Re-

settlement and Rehabilitation Policy, 1991 (hereinafter called R & R  

Policy) to be ultra vires and unconstitutional, being arbitrary and mala  

fides.  

F. The State Authorities opposed the writ petition contending that  

the validity of the R & R Policy had already been upheld by the courts;  

landless labourers were not entitled for allotment of agricultural land;  

the writ petition was filed at much belated stage, i.e. after completion of  

the dam; appellant  had an alternative efficacious remedy  before the  

Grievance Redressal Authority (hereinafter called GRA);  amendment  

in para 5.1 of the R & R Policy was only procedural, and carried out  

legally and was thus valid; even otherwise the amendment to para 5.1  

was inconsequential  because  the allotment  of  land for the oustees is  

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provided under Clause 3 of the R & R Policy and amendment carried  

out  in  Clause  3  of  the  Policy  at  subsequent  stage  had  not  been  

challenged by the appellant.  

G. The High Court considered the rival submissions advanced on  

behalf  of  the  parties  and  held  that  challenge  to  the  validity  of  the  

amendment dated 7.6.1991 was belated and could not be entertained.  

The  alternative  remedy  before  the  GRA  was  efficacious  and  no  

extraordinary situation prevailed warranting the High Court to interfere  

at such a stage. The landless labourers were not entitled for allotment of  

agricultural land. The oustees had been offered grant; the value of their  

land  had  also  been  assessed  under  the  Land  Acquisition  Act,  1894  

(hereinafter  called  `the  Act  1894’).  Person  aggrieved,  if  any,  can  

approach  the GRA if  he is not satisfied with the reliefs granted to him  

in terms of the R & R Policy. After taking the aforesaid view, the High  

Court issued various directions including:  to install radial gates, block  

sluice gates and to fill up dam upto 310 metres; when canal network is  

ready, the Government could approach the Court to fill up the dam to  

317 metres; the Government would ensure that land oustees were given  

benefits to which they are entitled under the R & R Policy within four  

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weeks; and that persons aggrieved, if any, were at liberty to agitate the  

grievances in respect of  reliefs before the GRA.  

       Hence, this appeal.  

3. Ms.  Chittaroopa  Palit,  representative  of  the  appellant,  has  

raised before us all the issues which had been agitated before the High  

Court, including the right of oustees for allotment of land in lieu of land  

acquired  and  non-compliance  of  R&R  Policy  is  violative  of  

fundamental  rights  of  the  oustees  enshrined  in  Article  21  of  the  

Constitution.  It has further been submitted  by her that the amendment  

in Clause 5.1 of the R & R Policy was null and void as it has not been  

carried out in accordance with the procedure prescribed under Section  

21 of the General Clauses Act, 1897 as well as the provisions of  Article  

166(2) and  (3) of the Constitution of India.  Clause 5.1 of the R & R  

Policy could not be amended in violation of Rule 7(viii) of Part II of the  

Business Rules.  And that since the Ministry of Welfare, Government of  

India, has accorded clearance to the project with a clear understanding  

that landless labourers would also be allotted agricultural land and as  

the  same  has  not  been  complied  with,  the  High  Court’s  judgment  

requires interference.  

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4. On  the  contrary,  Mr.  P.S.  Patwalia,  learned  senior  counsel  

appearing  for  the  respondents  has  vehemently  opposed  the  appeal  

contending that Clause 5.1 of the R & R Policy deals with procedure  

only.  Entitlement for allotment  of land  is provided under Clause 3.2  

of the R & R Policy and as the amendment to the said clause was not  

challenged,  amendment  to  Clause  5.1  remains  inconsequential.  Dam  

construction started in  year 2004 and compensation for land acquired  

had been determined much ago. By December 2002, the benefit of SRG  

had also been given to the oustees.  The writ petition was filed in year  

2008 after the dam stood fully constructed. At the time of  filing the  

writ petition  there was no challenge to Clause 5.1 of the R & R Policy,  

rather  it  was challenged seeking amendment  by filing an application  

dated 11.5.2010. Amendment to Clause 5.1 of  R & R Policy  has been  

in conformity with the Business Rules  of the Government and  all the  

orders in this respect had been passed in the name of the Governor. The  

Council of Ministers had delegated the power to the NVDD and to the  

Hon’ble  Minister  for  Rehabilitation  and  in  case  there  was  any  

difference between the said two Hon’ble Ministers, the matter would be  

referred to the Hon’ble Chief Minister. The law permits delegation of  

power to make routine changes in subordinate legislation. Therefore, no  

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fault can be found with the procedure adopted for amendment of Clause  

5.1 of the R & R Policy.      

Mr.  Patwalia  further  asserts  that  so  far  as  the  

entitlement of relief in favour of landless labourers etc. is concerned,  

this Court has dealt with the issue in  Narmada Bachao Andolan v.  

State of M.P., AIR 2011 SC 1989 (hereinafter called “Narmada Bachao  

Andolan  III”)  and  all  the  issues  agitated  in  this  appeal  have  been  

answered in the said judgment. The appeal lacks merit and is liable to  

be dismissed.  

5. We have  considered  the  rival  submissions  made  by learned  

counsel for the parties and perused the record.  

6. This Court in Narmada Bachao Andolan III (supra) has dealt  

elaborately with most of the issues agitated in this appeal, particularly,  

the  issues  of  delay  and  laches,  availability  of  alternative  remedy,  

entitlement  of  major  sons  and  daughters  of  oustees/as  well  as  the  

landless labourers for allotment of agricultural land.  The issues of land  

acquisition, rehabilitation and resettlement of oustees considering their  

fundamental and constitutional rights under Articles 21 and 300-A of  

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the Constitution of India have been dealt with elaborately therein.  This  

Court held:-

“These  cases  are  to  be  decided  giving  strict   adherence to the R & R Policy, as amended on  3.7.2002, 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.   Every  human  being  has  a  right  to   improve his standard of living.  Ensuring people   are better off is the principle of socio-economic   justice which every State is under obligation to   fulfil,  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.”    

        Thus, the case in fact requires to be disposed of in terms of the  

said judgment.  

7. Ms.  Palit   has  submitted  that  as  the  High  Court  did  not  

consider the issue of amendment of Clause 5.1 of the R & R Policy  and  

the effect of non-compliance of the condition imposed by the Ministry  

of  Welfare while granting the clearance for the project, this court must  

examine the said issues.   

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According  to  Ms.  Palit,  while  making  the  amendment  the  

procedure prescribed under Article 166 of the Constitution has not been  

followed and while granting the clearance, the Ministry of  Welfare  has  

added the clause that families of the landless labourers would  be given  

agricultural land to the extent of 2 hectares which has not been given.  

Thus, this appeal is being considered to be restricted to these two  

issues.  

Amendment to Clause 5.1 of the R & R Policy:

8.  The  NVDD  vide  Resolution  dated  18.11.1987  proposed  

liberal  amended policy  for  the  oustees  of  the  Narmada Projects  and  

submitted  the  same  for  approval  to  the  Cabinet  of  Ministers,  

Government of Madhya Pradesh. The said proposal was approved by  

the  Cabinet  of  Ministers,  Government  of  M.P.  on  25.11.1987.  

Subsequently,  the  NVDD vide  Resolution  dated  28.8.1989 proposed  

certain modifications in the rehabilitation policy and the summary of  

the same was submitted for the approval to the Cabinet of Ministers,  

Government  of  M.P.  The  said  proposal   specifically  provided  for  

delegation of  power to the NVDD and Rehabilitation Department to  

make routine/general amendment in R & R Policy with the permission  

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of the Ministers-in-charge of the said two departments.  The Council of  

Ministers vide resolution dated 1.9.1989 approved the said proposal.  

9. Certain  amendments  were  sought  in  R  &  R  Policy  vide  

resolution  dated  5.9.1989.  The  NVDD,  in  consultation  with  the  

Rehabilitation Department and after seeking approval of the Ministers-

in-charge of both the said Departments, amended Clauses 4.1, 5.1 and  

8.3 of the R & R Policy and issued the amended policy on 7.6.1991 in  

the name of the Governor of the State.  The copy of the said amendment  

order was issued to 44 officers concerned as is evident from the record.  

Clause 4.1 of the R & R Policy was amended to facilitate the tenure  

holders,  who  were  voluntarily  willing  to  sell  their  lands,  “as  far  as  

possible” to alienate the same  and further providing for procedure for  

determination  of  reasonable  price  of  such  lands.   Clause  5.1  was  

amended to the effect that if an oustee 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 concerned Land Acquisition Officer. In such  

cases, the oustee families would  have no entitlement over allotment of  

land and would be paid full amount of compensation.  An option once  

exercised  under  this  provision  would  be  final,  and  no  claim  for  

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allotment  of  land,  in  lieu  of  the  land,  acquired  could  be  made  

afterwards.  If  any  oustee  family  belonging  to  the  Scheduled  Tribes  

submits such an application, it will be essential to obtain orders from  

the Collector, who would after necessary enquiry certify that it would  

not adversely affect the interests of the oustee family. Such applications  

of the Scheduled Tribes oustee families could be accepted only after the  

said  certification  by  the  Collector.   Clause  8.3  was  also  amended  

changing the size of plots to be allotted to the oustees etc.   

         10. Subsequently on 24.10.2002, NVDD submitted the summary  

to Council of Ministers for approval of SRG for oustees of Narmada  

Projects, particularly in respect of those oustees who were not claiming  

land in lieu of the land acquired, and the said proposal was approved by  

the Cabinet of Ministers.  As a consequence, the order dated 28.12.2002  

was issued  giving  effect  to  the  said  amendment  in  the  name of  the  

Governor of the State of Madhya Pradesh .   

         11. On 27.4.2002, the amendment was made in Clause 3.2 of the R  

& R Policy  putting  the  words  “as  far  as  possible”  for  allotment  of  

agricultural land  to the oustees in lieu of the land acquired.  

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12. The aforesaid chronological development of amendment of R  

& R Policy reveals that Clause 3 of the R & R Policy provided for  

entitlement of oustees to get land in lieu of the land acquired. Clause 5  

prescribed only the procedure for allotment of land under Clause 3 of  

the R & R Policy.   The amendment  of   R & R Policy on 7.6.1991  

which is under challenge by the appellant  only facilitates those oustees  

who were not willing to take the land in lieu of the land acquired. Such  

an amendment was brought on demand of the oustees as an alternative.  

However, it does not take away the right of the oustees to claim land in  

lieu  of  the  land  acquired,  for  the  simple  reason  that  there  was  no  

amendment in year 1991 to Clause 3.2 of the  R & R Policy and the  

amendment  to  the  said  Clause  3.2  incorporated  on  27.4.2002 is  not  

under challenge.  The amendment under challenge simply facilitated an  

oustee to claim compensation instead of  land.   This  may be for  the  

reason that oustee may be willing to settle in another State or in urban  

area or  wants to adopt any other vocation/profession or wants to start  

any other business. However,  it  does not take away the right of any  

oustee to claim the land in lieu of the land acquired.  Therefore, in our  

opinion, amendment to Clause 5.1 remains inconsequential so far as the  

right  of  an  oustee  to  claim  land  in  lieu  of  the  land  acquired  is  

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concerned. Ms. Palit could not explain that in case her averment was  

accepted and the amendment to Clause 5.1 dated 7.6.1991 stood struck  

down, what benefit could an oustee derive from the same.  In view of  

the above, we do not find any force in the submissions made on behalf  

of the appellant on this count.  

13. In view of our conclusion reached herein that amendment to  

clause 5.1 of the R & R Policy was inconsequential so far as entitlement  

of allotment of agricultural land in lieu of land acquired was concerned,  

grievance of  the appellant  that procedure adopted for its  amendment  

was  not  in  conformity  with  the  Statutory/Constitutional  requirement  

becomes purely an academic issue, not required to be determined as  

Ms. Palit  could not  point  out as what prejudice the said amendment  

could cause  to  an  oustee.   However,  as  we have  heard the  issue  at  

length, it is desirable to decide the same also.   

Procedure adopted for amendment:  

14.  Ms.  Palit  has  submitted  that  the  procedure  adopted  for  

amendment of Clause 5.1 of the R & R Policy is not in consonance with  

the  provisions  of  Section  21  of  the  General  Clauses  Act,  1897  and  

Article  166 (2) and (3)  of the Constitution.   Rule 7 of the Business  

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Rules, Part II provided for the cases to be brought before the Council of  

Ministers.  Clause (viii) thereof reads:-

“Proposals  to  vary  or  reverse  a  decision  previously taken  at meeting of the Council”.

15. In  Sampat Prakash v. The State of Jammu & Kashmir &  

Anr., AIR 1970 SC 1118, this Court held:-

“This  provision  (S.21)  is  clearly  a  rule  of   interpretation which has been made applicable to   the Constitution in the same manner as it applies   to  any  Central  Act  or  Regulation……   As  an  example, under Article 77(3), the President, and,   under Article 166(3) the Governor of a State are  empowered to make rules for the more convenient   transaction of the business of the Government of   India or the Government of the State, as the case   may be, and for the allocation among Ministers   of the said business.  If, for the interpretation of   these  provisions,  Section  21  of  the  General   Clauses Act  is  not applied,  the result  would be  that the rules once made by the President  or a  Governor  would  become  inflexible  and  the  allocation  of  the  business  among the  Ministers   would forever  remain as laid  down in  the  first   rules.  Clearly, the power of amending these rules   from time to time to suit changing situations must   be held to exist and that power can only be found  in  these  articles  by  applying  Section  21  of  the   General Clauses Act”.

16. As the issue raised is of great public importance and Ms. Palit  

was not able to render proper legal assistance, we requested Mr. Gourab  

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Banerjee, learned Additional Solicitor General who was present in the  

court to assist the court on two issues, namely:

(1)    Whether the State Council of Ministers is, as a matter of  

law, permitted to delegate its power to a subordinate authority to  

amend its own decision.

(2)    Whether such amendment is to be consistent with the Rules of  

Business framed under Article 166 of the Constitution of India.  

17. Mr. Banerjee has made the submissions citing large number of  

judgments of this Court  and contended that law permits the delegation  

of  power  for  amending  the  subordinate  legislation  in  view  of  the  

provisions of Articles 77 and 166 of the Constitution.  

18. Even  function  or  duties  which  are  vested  in  a  State  

Government by a statute may be allocated to ministers by the Rules of  

Business framed under Article  166(3).  In  the  case of   The State of  

Bihar v. Rani Sonabati Kumari, AIR 1961 SC 221, it  was held as  

under:  

“Section  3(1)  of  the  Act  confers  the  power  of   issuing notifications under it, not on any officer   but on the State Government as such though the   exercise of that power would be governed by the  rules of business framed by the Governor under  Art. 166(3) of the Constitution. But this does not   

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afford any assistance to the appellant. The order   of Government in the present case in expressed to   be made "in the name of  the Governor" and is   authenticated as prescribed by Art.  166(2),  and  consequently  "the  validity  of  the  order  or   instrument  cannot  be  called  in  question  on  the   ground that it is not an order or instrument made  or executed by the Governor."

19. In the said judgment,  it was also observed that the Governor  

remains responsible for actions of subordinates taken in his name:

“The only point canvassed is whether it was an   order made by the Governor or by some one duly   authorised  by  him  in  that  behalf  within   Art.154(1). Even assuming that the order did not   originate from the Governor personally, it avails   the State nothing because the Governor remains   responsible  for  the  action  of  his  subordinates   taken in his name. In  King Emperor v. Sibnath  Banerjee  &  Ors.,  AIR  1945  PC  156  already  referred  to,  Lord  Thankerton  pointing  out  the   distinction  between  delegation  by  virtue  of   statutory power there and the case of the exercise   of  the  Governor's  power  by  authorised  subordinates under the terms of S. 49(1) of the   Government of India Act, 1935 corresponding to  Art. 154(1), said:

"Sub-section 5 of  S.  2 (of  the Defence of  India   Act, 1939) provides a means of delegation in the  strict sense of the word, namely, a transfer of the   power or duty to the officer or authority defined   in  the  sub-section,  with  a  corresponding  divestiture of the Governor of any responsibility   in the matter, whereas under S. 49(1) of the Act   of  1935,  the  Governor  remains  responsible  for   the action of his subordinates taken in his name.

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This last point is therefore without force and has  to be rejected.”

(See also the decision of the Constitution Bench in R. Chitralekha  v.  

State of Mysore & Ors., AIR 1964 SC 1823).

20. The  decision  of  any  minister  or  officer  under  the  Rules  of  

Business made under Articles 77(3) and 166(3) of the Constitution is  

the decision of the President  or  the Governor respectively  and these  

Articles do not provide for ‘delegation’. That is to say, that decisions  

made and actions taken by the minister or officer under the Rules of  

Business cannot be treated as exercise of delegated power in real sense,  

but are deemed to be the actions of the President or Governor, as the  

case may be, that are taken or done by them on the aid and advice of the  

Council  of  Ministers.  In  State  of  U.P.  & Ors.   v.  Pradhan Sangh  

Kshettra Samiti & Ors., AIR 1995 SC 1512,  this Court relied on the  

decision  of  the  Seven-Judge  Bench  in  Samsher  Singh  v.  State  of  

Punjab & Anr., AIR 1974 SC 2192 and  held as under:     

“….Any  action  taken  in  the  exercise  of  the   executive  power  of  the  State  vested  in  the  Governor  under  Article  154(1)  is  taken  by  the   Government  of  the  State  in  the  name  of  the   Governor as will appear in Article 166(1). There   are  two  significant  features  in  regard  to  the  executive  action  taken  in  the  name  of  the   

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Governor. First,  Article  300 states,  among other  things, that the Governor may sue or be sued in  the name of the State. Second, Article 361 states   that  proceedings  may  be  brought  against  the   Government  of  the  State  but  not  against  the   Governor. The reason is that the Governor does   not exercise the executive functions individually or   personally. Executive action taken in the name of   the Governor is the executive action of the State.   Para 48 of the said judgment explains the position   of law in that behalf succinctly as follows:  

“The  President  as  well  as  the  Governor  is  the   constitutional  or  formal  head.  The  President  as  well  as  the  Governor  exercises  his  powers  and  functions  conferred  on  him  by  or  under  the   Constitution on the aid and advice of his Council   of Ministers, save in spheres where the Governor  is  required  by  or  under  the  Constitution  to  exercise his functions in his discretion. Wherever   the  Constitution  requires  the  satisfaction  of  the   President or the Governor for the exercise by the   President  or  the  Governor  of  any  power  or  function,  the  satisfaction  required  by  the  Constitution is not the personal satisfaction of the   President or Governor but the satisfaction of the  President or Governor in the constitutional sense  in  the  Cabinet  system  of  Government,  that  is,   satisfaction of his Council of Ministers on whose   aid  and  advice  the  President  or  the  Governor  generally exercises all his powers and functions.   The  decision  of  any  Minister  or  officer  under   Rules  of  Business  made  under  any  of  these  two  Articles  77(3)  and 166(3)  is  the  decision  of  the   President  or  the  Governor  respectively.  These   articles  did  not  provide  for  any  delegation.   Therefore,  the  decision  of  a  Minister  or  officer   under the Rules of Business is the decision of the   President or the Governor.”

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21. Whether there can be further delegation by the minister to the  

officer subordinate to him depends on the provisions of the Rules of  

Business.  

22. Rules  of  Business  operate  even  when  a  statute  does  not  

authorise  sub-delegation.  In  King Emperor v.  Sibnath Banerjee &  

Ors. (supra), the law was crystallised by the Privy Council holding that  

a provision permitting sub-delegation is merely supplementary and can  

be  no  ground  for  excluding  the  ordinary  method  by  which  the  

Government’s executive business was carried on.  

23. The requirement of the Rules of Business must be complied  

with in order to give validity to the action or decision taken. In  Smt.  

Godavari Shamrao Parulekar v. The State of Maharashtra & Ors.,  

AIR 1964  SC 1128,  a  Constitution  Bench  of  this  Court  considered  

whether an order of preventive detention under the Defence of India  

Ordinance could have been passed in terms of the Rules of Business.  

While  upholding  the  order  of  detention,  the  court  held  that  the  

preventive detention could only be ordered by the minister who had  

been allocated the relevant subject which was the basis of the detention  

order.   

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24. Earlier cases of this Court suggest that the Rules of Business  

are  to  be construed  as  directory  so  that  substantial  compliance  with  

them would suffice to uphold the validity of the relevant order of the  

Government.  (See:  State of  Uttar Pradesh v.  Om Prakash Gupta,  

AIR 1970 SC 679)

25. Similarly, in R. Chitralekha (Supra), a Constitution Bench of  

this  Court  had  observed  that  it  is  settled  law that  the  provisions  of  

Article 166 of the Constitution  are only directory and not mandatory in  

character. In paragraph 4 it was held as under:   

“…..This view has been reaffirmed by this Court  in subsequent decisions: see  Ghaio Mal & Sons  v.The State of Delhi & Ors., AIR 1959 SC 65 and  it is, therefore, settled law that provisions of Art.   166 of the Constitution are only directory and not   mandatory  in  character and,  if  they  are  not   complied with, it can be established as a question   of fact that the impugned order was issued in fact   by the State Government or the Governor.”

                                                                  (Emphasis added)

26. The  judgment  in  R.  Chitralekha  (supra)  has  been  

subsequently  cited  for  this  proposition  in  Bannari  Amman  Sugars  

Ltd. v. Commercial Tax Officer & Ors., (2005) 1 SCC 625.  

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27. In Dattatraya Moreshwar v. The State of Bombay & Ors.,  

AIR 1952 SC 181,  a  Constitution  Bench  of  this  Court  held  that  an  

omission to make and authenticate an executive decision in the form  

mentioned in Article 166 does not make the decision itself illegal, on  

the basis that its provisions were directory and not mandatory.

28.      However,  in the recent decision of  MRF Ltd. v. Manohar  

Parrikar & Ors., (2010) 11 SCC 374, a two-Judge Bench of this Court  

has sought to distinguish the above mentioned judgments and taken the  

view that in case there is  non-compliance  of Business Rules framed  

under  Article  166(3)  of  the  Constitution,  the  notification  issued  in  

violation of Business Rules is void ab initio and all actions consequent  

thereto are null and void. The court held:  

“Thus,  from  the  foregoing,  it  is  clear  that  a   decision to be the decision of the Government must   satisfy  the  requirements  of  the  Business  Rules   framed  by  the  State  Government  under  the   provisions of Article 166(3) of the Constitution of   India. In the case on hand, as has been noticed by   us and the High Court, the decisions leading to the   notifications do not comply with the requirements   of the Business Rules framed by the Government of   Goa under the provisions of Article 166(3) of the   Constitution and the notifications are the result of   the  decision  taken by the  Power Minister  at  his   level.  The  decision  of  the  individual  Minister   cannot  be  treated  as  the  decision  of  the  State   Government  and  the  notifications  issued  as  a   

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result  of  the  decision  of  the  individual  Minister   which are in violation of the Business Rules are   void ab initio and all actions consequent thereto   are null and void.”

29. On the other hand, in M/s. Crawford Bayley & Co. & Ors. v.  

Union of  India & Ors., AIR 2006 SC 2544, a two-Judge Bench has  

accepted  that  the  Rules  of  Business  framed under  Article  77  of  the  

Constitution, which is analogous to Article 166, are directory and not  

mandatory, with the following observations:   

“It  was next  contended with  reference  to  the   Allocation  of  Business  Rules  that  the  Central   Government in the Urban Department can appoint   an  Estate  Officer  but  in  the  present  case,  the   Finance  Department  has  appointed  an  Estate   Officer which is in violation of the Allocation of   Business Rules, 1961. Though the Division Bench  dealt with this aspect exhaustively in its judgment   and held that the provisions of the Business Rules   are  not  mandatory  and  will  not  vitiate  the  appointment,  we  fully  agree  that  the  Rules  of   Business  are  administrative  in  nature  for  governance of its business of the Government of   India framed under Article 77 of the Constitution  of  India.  In  this  connection,  the  Division  Bench  referred to the decision of this Court in Dattatraya  Moreshwar Pangarkar v. The State of Bombay,   (1952)  SCR  612.   There  analogous  Rules  of   Business framed by the State under Article 166 of   the  Constitution  of  India  came  up  for   consideration and it  was observed that  they are   directive and no order will be invalidated, if there   is a breach thereof….”.

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30. We have considered the larger Bench judgment of this Court in  

R.  Chitralekha  (supra)  and  taken  note  of  the  fact  that  MRF  Ltd.  

(supra) is distinguishable from the case at hand since that case dealt  

with rules pertaining to financial implications for which there were no  

provisions  in  the  Appropriation  Act,  and  so  the  rules  required  

mandatory  compliance.  Here,  there  is  no  issue  of  financial  

repercussions.  The issue here is  whether  the Council  of  Ministers  is  

permitted to delegate the power to amend its decision to a Committee of  

Ministers  consisting  of  the  Ministers-in-charge  of  the  Departments  

concerned and the Chief Minister, and whether such amendment needs  

to be consistent with the Rules of Business framed under Article 166 of  

the  Constitution  of  India.  The  case  law  provides  that  delegation  is  

permissible and that Rules of Business are directory in nature. In view  

of  the  above,  we  find  that  delegation  of  power  is  permissible.  

Submissions  so  made  on  behalf  of  the  appellant  in  this  regard  are  

preposterous.  

Land to landless labourers:  

31. So far as the issue of non-compliance of the clearance of the  

terms incorporated by the Ministry of Welfare is concerned, the issue  

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has been elaborately dealt with by us in earlier judgment  in Narmada  

Bachao Andolan III (Supra). However, Ms. Palit has submitted that  

certain  issues  could  not  be  agitated  in  that  case  as  the  terms  and  

conditions were incorporated by the Ministry of Welfare (Government  

of India), while granting the clearance dated 6.5.1997.

32. So far as the present appeal in respect of Upper Beda Project is  

concerned,  the rehabilitation policy for the oustees provided that the  

displaced families would be rehabilitated maintaining existing structure  

of social groups as far as possible, in the command area or near the  

periphery of the affected areas in accordance with their preferences.  

Relevant  provisions  of  the  R & R Policy  read   as  

under:  

“3.1 xx xx xx

3.2 (a) Every displaced family from whom more  than  25  per  cent  of  its  land  is  acquired   in   revenue  villages or  forest  villages  shall  be  entitled to and be allotted land to the extent of   land  acquired  from  it,  subject  to  provision  in  3.2(b) below. (b) 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.

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Where more than 2 hectares of land is   acquired from a family, it will be allotted equal   land, subject to a ceiling of 8 hectares.   xx xx

xx       xx xx

xx

9.1 Special  efforts  will  be  made  for  the  effective  rehabilitation  of  landless  displaced  families. Adequate arrangements will be made by  the  Narmada Valley  Development  Authority  for  the up-gradation of existing skills or impartment  of new skills so as to promote full occupational   rehabilitation. In this regard, new opportunities   emerging as a result of the project will be fully   used  for  the  benefit  of  the  displaced  families.   Suitable  provisions  will  be  incorporated  in  the   tender  document  of  Local  Competitive  Bidding  (LCB) and other forms to ensure the employment   of  displaced  persons.  The  Narmada  Valley   Development  Authority  will  ensure  appropriate  arrangement  for  discharge  of  these  responsibilities within a stipulated time frame. In   the interim time, special financial assistance will   be  given  to  supplement  the  income  of  the   landless  agricultural labourers and the landless   scheduled  castes  and  scheduled  tribes  oustee  families for 3 years in descending order, which  shall  be  in  addition  to  the  grant-in-aid   mentioned in para 6.1.  This  period of  3 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. 2,250/-, Rs.5,500/- and Rs.2,750/-   in  the  second,  third  and  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  for  earning   

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livelihood or for  purchase of  productive assets.   The above poverty line and the amount to be kept   in  reserve  is  also  linked  with  special  support   amount  and  the  reserve  shall  also  be  proportionately increased accordingly. For other   landless  families  special  financial  assistance  of   Rs.19,500/-  will  be  given  for  the  purchase  of   productive assets.”              (Emphasis  added)   

33. The  policy  makes  it  clear  that  there  was  no  provision  for  

allotment of agricultural land  to the landless labourers. However, when  

the project was placed before the Ministry of Welfare, Government of  

India,  it  granted  clearance  on  6.5.1997  providing  for  allotment  of  

minimum 2 hectares of land for all landless labourers.  

34. Before  the  High  Court  the  issue  was  raised  and  the  State  

Authorities while filing the counter affidavit  replied  as under:  

“Reply to para 5.4:  While the approval   and  sanction  as  mentioned  in  the  para  under  reply are not disputed, it is submitted that in so   far  as  the  said  clearance  (Annexure  P-3)  proceeds  on  the  basis  that  2  hectares  of  land   would  be  given  to  even  a  landless  labour,  the   same  was  represented  against  by  the  State   Government by its letter dated 5.4.1997…….. A  bare perusal of the said letter would show  that   the  issue  regarding  the  grant  of  minimum  2  hectares  of  land to  all  landless  labourers  was   denied and it was pointed out that the State has   no such policy.  It was also pointed out that such   

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a  policy  was  the  prerogative  of  the  State   Government  as  “land”  and  “water”  are  State   subjects  appearing  in  entries  17  and  18  respectively of the State list of the VIIth Schedule   of the Constitution of India.  Thus, the State has  the exclusive power to frame R&R policies.  It is   also  pertinent  to  mention  here  that  the  said   provision of allotment of 2 hectares of land to all   the  landless  labourers  neither  finds  mention  in   the  R&R  policy  of  the  State  nor  in  the  NWDT  Award nor even in the National Resettlement and   Rehabilitation  Policy,  2007.   Thus,  the   petitioner’s reliance on the letter dated 6.5.1997  is baseless and misconceived.”  

                  (Emphasis added)

35.    Further  vide  letter  dated  5.4.1997,   the  NVDD  wrote  to  the  

Ministry  of  Welfare  informing  it  that  landless  labourers  had  been  

proposed  for  giving  them  minimum  2  hectares  of  land  as  per  its  

clearance but action in this respect would be taken as per decision of  

the Government.  

36. We have also gone through the clearance letter dated 6.5.1997  

issued by the Ministry of Welfare. The relevant part of the said letter  

on which Ms. Palit has placed strong reliance reads:  

“In  view  of  the  fact  that  R&R  Action  Plan  prepared  is  based  on  the  R&R  guidelines  of   N.V.D.A projects and since the R&R Action Plan  has  been  modified  to  treat  unmarried  major  daughters  as  separate  entities  for  all  R&R  

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packages  and  for  allotting  a  minimum  of  2   hectares of land for all landless labourers, I am  directed  to  initiate  the  clearance  for  the  R&R  Action Plan of this project by this ministry”  

  (Emphasis added)

It  is  impermissible  in  law  to  read  a  part  of  the  document  in  

isolation. The document is to be read as a whole. The letter of approval  

mentions  “allotting a minimum of 2 hectares of land for all landless  

labourers” and says that unmarried major daughters would be treated  

as  separate  entities  for  that  particular  purpose,  i.e.  of  allotting  2  

hectares of land. Ms. Palit never pleaded the cause of unmarried major  

daughters to be treated as separate entities for allotment of land. As  

noted earlier,  we have already dealt  with and answered the issue of  

entitlement of major  sons and daughters of  oustees for allotment of  

land in negative in  Narmada Bachao Andolan III (supra). Thereby,  

Ms. Palit mistakenly relied on the clearance letter by the Ministry of  

Welfare to say that granting land to landless labourers was in and by  

itself a precondition for granting clearance to the project.

37. Moreover, even if we regard the allotment of land to landless  

labourers as a condition, the Government of M.P. did not accept such a  

condition.  The Ministry of Welfare’s clearance was not statutory,   like  

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any other statutory clearance e.g. clearance granted by Environment and  

Forest Ministry.   There is nothing in that clearance as to what would be  

the consequence for non-compliance with those conditions. More so,  

subsequent thereto, it is evident from the record that representations had  

been  filed  on  behalf  of  the  oustees  before  the  Ministry  of  Welfare.  

However, no action had ever been taken by the Ministry of Welfare that  

the terms incorporated by it while granting clearance were not being  

adhered  to  and  in  spite  of  writing  several  letters,  the  Ministry  of  

Welfare  did not consider it proper to take any action or even to refer  

those letters to the State Government or to the NVDD.  Thus, the said  

Authorities also treated the same as non-statutory.  

In view of the above, we do not find any cogent reason to accept  

the submission made by Ms. Palit  that landless labourers are entitled  

for allotment of agricultural land to the extent of 2 hectares. The said  

contention is devoid of any merit.  Even otherwise, it does not appeal to  

us that landless labourer could be entitled for allotment of agricultural  

land admeasuring two hectares.  Neither  it had ever been contemplated  

nor it is compatible with R & R Policy.  Nor such land had ever been  

allotted to this class of persons.  The contention is hereby rejected.  

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38. In view of the above,  appeal lacks merit  and is accordingly  

dismissed.  No order as to costs.  

Before  parting  with  the  case,  we  record  our  deep  

sense  of  appreciation  and  thanks  to  Mr.  Gourab  Banerjee,  learned  

Additional Solicitor General for India, for rendering assistance to the  

Court on our request.  

………………………J. (J.M. PANCHAL)

………………………J.

(DEEPAK VERMA)

..……………………..J. (Dr. B.S. CHAUHAN)

New Delhi, July 26, 2011

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