NARMADA BACHAO ANDOLAN Vs STATE OF M.P.
Bench: J.M. PANCHAL,DEEPAK VERMA,B.S. CHAUHAN, ,
Case number: C.A. No.-002082-002082 / 2011
Diary number: 31334 / 2008
Advocates: NIKHIL NAYYAR Vs
C. D. SINGH
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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.
2
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oustees who had already withdrawn the compensation, if such oustees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.
3
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
4
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
5
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
6
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
7
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
8
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
9
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.
10
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
11
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
12
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.
13
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).
14
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.
15
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
16
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
17
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
18
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
23
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:
25
“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.
27
(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.
28
(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).
54
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 :
57
“…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.
58
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.
59
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)
60
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
61
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).
62
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
63
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.
64
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.
65
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.
66
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
67
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
68
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
69
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
70
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
71
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
72
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.
73
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;
74
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
75
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
76
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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