Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No.6229  of 2011 (Arising out of SLP(C) No.34065 of 2009)

State of Madhya Pradesh & Anr.               

..Appellants  

Versus

Medha Patkar & Ors.                    ..Respondents

J U D G M E N T

Dr. B. S. CHAUHAN, J.

1. Leave granted.

2. This appeal has been preferred by the State of Madhya Pradesh  

and instrumentality of the State against the judgment  and order dated  

11.11.2009 in Writ Petition (C) No.6056 of 2009 of the High Court of  

Madhya Pradesh at Jabalpur, whereby the High Court has restrained

the State of Madhya Pradesh or any other statutory authority of further  

acquisition of land or for any excavation or any construction of the  

canal  network  for  the  command  areas  of  the  Indira  Sagar  and  

Omkareshwar  projects  till  the  Command  Area  Development  plans  

(hereinafter called CAD Plans) submitted to the Government of India,  

Ministry  of  Environment  and  Forest  (hereinafter  called  MoEF)  are  

scrutinized by the committee of experts and clearance is granted by the  

said  Ministry.   The  appellant-State  Government  has  further  been  

directed to provide rehabilitation and resettlement benefits  under the  

Rehabilitation and Resettlement Policy (hereinafter called R&R Policy)  

for Narmada Valley Projects to the canal affected persons/families of  

Indira  Sagar  and  Omkareshwar  projects  and  the   Narmada  Control  

Authority  (hereinafter  called  NCA)  has  been  directed  to  ensure  

implementation of the aforesaid directions.

3. The facts and circumstances giving rise to this appeal are:  

A. That after completing the procedure prescribed for establishment  

of dams and irrigation projects, the project reports for Indira Sagar and  

Omkareshwar projects were prepared and submitted for clearance.  The  

environmental clearance for Indira Sagar project was granted by MoEF  

on 24.6.1987 by an administrative  order.  The Planning Commission  

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also  approved  investment  to  be  made  in  Indira  Sagar  project  on  

6.9.1989.   

B. The  R  &  R  Policy  of  1989  was  introduced  by  the  State  of  

Madhya Pradesh for the oustees of submerged area in Narmada Valley  

projects.  Land acquisition proceedings were initiated  in year 1991 for  

canal construction under Indira Sagar project.  A comprehensive CAD  

plans  for  Omkareshwar  project  were  sent  to  MoEF  for  clearance.  

Environment Impact Assessment and Environment Management Plan  

reports were also submitted for Omkareshwar project to MoEF which  

also  contained  the  R  &  R  plan  for  the  affected  persons  of  the  

Omkareshwar project.  It provided that the persons whose land was to  

be acquired for establishment of canals were not to be included in R &  

R plans.   

C. The  Ministry  of  Welfare,  Government  of  India  accorded  

clearance to the R & R plan of Omkareshwar project  on 8.10.1993.  

Similarly,  by  an  administrative  order  environmental  clearance  for  

Omkareshwar project was granted by MoEF on 13.10.1993.

D. The MoEF issued statutory  notification  under  Section 3(2)  of  

Environment (Protection) Act, 1986 (hereinafter called the Act 1986)  

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read  with  Rule  5(3)  of  the  Environment  (Protection)  Rules  1986  

requiring  environmental  clearance  for  development  of  project  on  

27.1.1994.  The canal construction in Indira Sagar project started on  

30.5.1999.   The  NVDD  vide  order  dated  14.8.2000  amended  the  

definition of “Displaced person” adding in clause 1(a) the following  

words:  

“…..or  is  required  for  the  project-related  canal  construction and construction of  the Government  Project Colony.”

          The Planning Commission granted approval in respect of  

Omkareshwar  project  on  15.5.2001.   The  R  &  R  policy  stood  

materially  changed  vide  amendment  dated  1.9.2003  as  from  the  

definition  of  “displaced  person”  the  words  “which  is  required  for  

project  related  construction  of  canals  or  the  Government  project  

colony” stood deleted.   

          The Amendment to the Rehabilitation Policy was made  

by the Narmada Control Board (NCB) on the recommendation of the  

NVDA on 2.7.2003 as per Business Rules of Narmada Control Board  

Part II Special Procedure for Emergency Sanction and not under the  

Government of Madhya Pradeh Business Rules.

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E. The dam construction of Indira Sagar project stood completed in  

year 2005 and the High Court, in a pending litigation, permitted the  

State of Madhya Pradesh to raise water level of Indira Sagar Dam upto  

260 meter against the full reservoir level of 262.13 meters vide order  

dated 8.9.2006.  The High Court further clarified that NCA had no role  

to play regarding the Indira Sagar project i.e. intra-State project as its  

role was confined to inter-State Project, i.e. Sardar Sarovar Project.   

F. The Omkareshwar dam  stood completed in year 2007.  In order  

to set  up canals,  land acquisition proceedings were initiated in year  

2009  and  in  some  cases  after  conclusion  of  the  proceedings,  

compensation  under  the  provisions  of  Land  Acquisition  Act,  1894  

(hereinafter  called  the  Act  1894)  has  been  paid.  However,  in  some  

cases acquisition proceedings are still in progress.

G. The respondents  preferred Writ  Petition (C) No.6056 of  2009  

before the High Court of Madhya Pradesh at  Jabalpur on 18.6.2009  

challenging the acquisition of land for excavation of canals; execution,  

excavation and construction of canal  on various grounds,  inter-alia;   

the CAD Plans had not been submitted by the State and not approved  

by the MoEF; there had been no compliance of Panchayats (Extension  

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of Scheduled Areas) Act, 1996 (hereinafter called PESA Act) which  

required  consultation  with  office  bearers  of  Panchayats  before  

initiation of  land acquisition proceedings;  the canal  affected persons  

were also entitled for the full benefit of R & R Policy including the  

allotment of land in lieu of the land acquired as per R & R policy,  

which had not been provided for.      

H. The  State  of  M.P.,  appellant  herein  contested  the  case  

contending that land acquisition proceedings could not be challenged at  

a belated stage i.e. after dispossession of the tenure holders; authorities  

had  submitted  the  CAD  Plans  and  acted  on  the  same  after  being  

approved by the MoEF. Canal affected person could not be treated at  

par with an oustee of the submerged area of the dam, rather he would  

be  given  benefit  as  per  the  policy  prescribed  for  such  a  class  of  

persons.   

4. The High Court after considering the rival submissions held as  

under:  

(I) The CAD Plans of Indira Sagar and Omkareshwar projects were  

required to be prepared and submitted to the authority entrusted with  

the  responsibility  of  monitoring,  planning  and  implementation  of  

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environmental  safeguards  and  this  was  to  be  done  before  the  

commencement of the canals so that such authority could ensure that  

the  environmental  safeguards  and  mitigative  measures  had  been  

properly  planned  and  could  be  implemented  pari  passu with  the  

construction of the canal project.    

(II) If  land  is  acquired  and  excavated  before  preparation  and  

submission of CAD Plans to such monitoring authority, environmental  

safeguards could not  be implemented pari passu with the construction  

of  canal  project.  Rather,  if  the  main  canals  and  branch  canals  are  

constructed without keeping in mind the environmental requirements  

then  there  may  be  immense  problem of  water  logging  and  salinity  

disturbing  the  environmental  plans  and  the  authority  entrusted  to  

ensure the environmental  safeguards may not  be able to reverse the  

acquisition of land.  

(III) There was an intelligible differentia in making the classification  

between the oustees of  submerged areas of dam and canals but have no  

rationale nexus with the object to achieve so far as the rehabilitation  

was concerned. Thus, the persons affected by canal work were entitled  

to the same benefit as that of submergence affected persons.

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(IV) In view of the  provisions of Sections 3 and 4(i) of PESA Act,  

the State Legislature was not competent to make any law under Part IX  

of the Constitution of India inconsistent with the basic features of the  

Gram  Sabha  or  Panchayats  at  the  appropriate  level   requiring  

consultation  for  land  acquisition  in  the  scheduled  area  for  the  

development projects.  Therefore, it was not permissible for the court  

to  issue  direction  to  the  authorities  to  consult  Gram  Sabha  before  

acquisition of land.

(V) Challenge to the acquisition of land could not be entertained at a  

belated stage as the possession of the land had been taken long back.  

(VI) The clearance  from MoEF requires  the  agents  to  monitor  the  

environmental protection measures.    

In view of the above, the High Court issued directions  as  

explained in para 2  hereinabove.  Hence, this appeal.  

5. Shri T.R. Andhyarujina, learned senior counsel appearing  

for the appellants has submitted that CAD Plans have been submitted by  

the  authorities  from  time  to  time  to  the  ministries  of  the  Central  

Government  and  have  got  the  clearances  and  the  work  had  been  

executed giving strict adherence to those clearances. Even at present, the  

revised CAD Plans have been submitted and are being considered by the  

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Expert  Committee  of  the  MoEF,  wherein  the  respondent-Ms.  Medha  

Patkar  has  also  been  heard.  As  voluminous  documents  have  been  

submitted by her and this Court had been issuing directions from time to  

time, the MoEF has yet to take the final decision. The State authorities  

are bound to proceed in accordance with the final decision taken by the  

MoEF and in case the CAD Plans are not found to be appropriate or  

complete  and  the  MoEF  issues  certain  directions  or  asks  for  some  

variations  etc.  the  State  Government  would  proceed  accordingly.  

Therefore, according to Mr. Andhyarujina, the issue of submission and  

clearance of CAD Plans should not be decided at this stage by the court.  

It  is  further  submitted  by  Mr.  Andhyarujina  that  in  case  a  party  is  

aggrieved by the order to be passed by MoEF, it would  be open to it to  

challenge the said order before the appropriate forum.  

So far as the issue of rehabilitation is concerned, it has been  

canvassed  on  behalf  of  the  State  that  question  of  putting  the  canal  

affected  persons  at  par  with  submergence  affected  persons  does  not  

arise. This Court in  Narmada Bachao Andolan v. Union of India &  

Ors.,   (2000)  10  SCC  664,  (hereinafter  called  “Narmada  Bachao  

Andolan I”) has categorically held that both classes are different and  

cannot be put on equal footings. The canal affected people may rather be  

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benefited because of the canals while the submergence affected persons  

may suffer  permanently  or  temporarily.  Therefore,  to  that  effect,  the  

High Court was not justified in issuing direction to treat both the classes  

at par.            

6.          On the other hand, Ms. Medha Patkar, respondent-in-person  

and  Mr.  Sanjay  Parikh,  learned  counsel  for  the  respondents  have  

submitted that there is no difference in the sufferings of the persons,  

whether  they  are  submergence  affected  persons  or  canal  affected  

persons.  No  rationale  nexus  can  be  found  to  treat  them  differently.  

Therefore, the High Court’s finding to that extent does not require any  

interference. The CAD Plans submitted by the State authorities are not  

complete  and  are  being  examined  by  the  Expert  Committee  of  the  

MoEF. Therefore, the High Court has rightly directed the authority not  

to proceed with excavation or establishment of canals etc.  The facts of  

the case do not warrant  any interference by this  Court.  Appeal  lacks  

merit and is liable to be dismissed.  

7. We have considered the rival submissions made by learned  

counsel  for the parties and perused the record.

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8. Though, a large number of issues have been agitated before  

the High Court and dealt  with,  some of them have not been agitated  

before us. The issue of consultation with the Gram Sabha or Panchayats  

before acquisition of land and validity of  the acquisition proceedings  

had been dealt with by the High Court against the writ petitioners and  

the  same  has not  been challenged before  us.  Thus,  only  two issues  

survive,   i.e.  submission  of  CAD  Plans  before  the  MoEF  and  

requirements  of  its  clearance;  and  entitlement  of  the  canal  affected  

persons.    

9. So far as the first issue is concerned, this Court vide order  

dated 25.2.2010 after taking note of the directions issued by the High  

Court  and  in  view  of  the  fact  that  the  CAD  Plans  etc.  were  being  

considered by  the Expert Committee of the MoEF and for many years  

excavation and construction of canal work and acquisition of land for  

that purpose had been done to a  great extent and the High Court order  

brought the same to a standstill, passed the following order:  

“In  the  above  circumstances,  excavation  or   construction  of  the  canal  work  and  acquisition  of   land may go on for the time being, however, it would   be subject to approval of the MoEF of the revised   plans  submitted  on  16th October,  2009.  The  State   would be at liberty to file further details regarding   the Command Area Development Plans to the MoEF  

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and  if  such  details  regarding  the  Command  Area   Development  Plans  are  filed,  the  same  may  be  referred to the Expert Committee for consideration.   The Expert  Committee  to take a decision within a  period of  six  weeks  and as  soon as  the  Report  is   available  to  MoEF,  the  MoEF  to  take  decision  within a further period of four weeks thereafter.”  

10. Mr. Mohan Jain, learned Additional Solicitor General appearing  

for the MoEF has supported the case of the State contending that the  

State authorities had always been submitting the CAD Plans from time  

to time and the same had also been cleared by the statutory authorities.  

References have been made to the decision dated 10.2.2011 taken by  

Dr.  Pandey’s  Committee  on  CAD  Plans  and  all  other  subsequent  

decisions taken on 29th/30th April, 2011 on the CAD Plans submitted by  

the State Government. Mr. Jain assured the Court that the decisions  

would  be  taken  by  the  MoEF  strictly  in  accordance  with  law  

considering the report of the Expert Committee. Time is being taken in  

view of the order dated 11.5.2011 passed by this Court directing MoEF  

to  proceed  with  the  draft  minutes   prepared   by  the  Environment  

Appraisal  Committee  after  providing  the  opportunity  of  personal  

hearing to the writ petitioner- Ms. Medha Patkar. Though the hearing  

stood  concluded,  a  large  number  of  documents  submitted  by  Ms.  

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Patkar yet require to be considered. The final decision shall be taken  

within 4 weeks.  

11. While considering the reliefs, which could be given to the canal  

affected persons, this court on 5.5.2010 passed the following  order :  

    “The State of Madhya Pradesh shall consider the   “hardship  cases”;  those  cases  wherein  land  of  a   Khatedar is in excess of 60% or above is acquired  for canal, those affected parties may be given land   as far as possible in the near vicinity or in the canal   command area of the project and if it is not possible,   the  land  may  be  given  from  the  Land  Bank.  The   Khatedars who have already received compensation,   should  return  the  Government  50%  of  the   compensation amount already taken by them as land  value and the remaining amount may be refunded to   the  Government  in  20  interest  free  annual   installments. If the Khatedars are not willing to take   land  from  the  land  bank,  they  may  be  given  the   compensation as per the present market value plus  30% solatium thereof.  Those who are not coming in   the category of hardship cases, compensation is to   be paid under the Land Acquisition  Act  with  30%  solatium.    

Any  grievance   in  respect  of  these  affected   parties  may  be  placed  before  the  Grievance  Redressal  Authority  for  Narmada  Water  Basin   Project  which  has  been  set  up  by  the  State   Government. Land Bank should, as far as possible,   give  cultivable  land  and  also  basic  infrastructure  such  as  school,  primary  health  centre,   communication facilities etc. shall be provided.”

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12. While entertaining I.A. No.9 of 2011, on 21.7.2011 the aforesaid  

order was modified as under:

“50% of the cash compensation already received by   the  Khatedars  have  to  be  refunded  to  the  Government as land value of land allotted and the   remaining cost of the land will be paid in 20 interest   free annual installments.”

        While hearing the matter, this court further clarified the order  

dated 5.5.2010 to the extent   that  30% solatium as mentioned in the  

order dated 5.5.2010 meant as provided under the Act 1894 and not over  

and above the same to make it 60%.  

    Therefore, the question remains as what are the other reliefs that  

can be granted to the canal affected persons and as to whether they can  

be put at par with the oustees of submergence area.  

13.The Narmada Water Dispute Tribunal Award 1979 defined ‘oustee’  

as well as provided for rehabilitation:  

“Oustee- An “Oustee shall mean any person who since at  least  one  year  prior  to  the  date  of  publication  of  the  notification  under  section  4  of  the  Act,  has  been  ordinarily residing or cultivating land or carrying on any  trade,  occupation or calling or  working for gain in the  area  likely  to  be  submerged permanently  or  temporarily.”  

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Provision for Rehabilitation: According to the present  estimates the number of oustee families would be 7,366  spread  over  173  villages  in  Madhya  Pradesh,  467  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.”

Thus, it  is evident from the above that the definition of  

‘oustee’  does  not  take  within  its  ambit  the  “canal  affected  person”.  

However, the said award does not apply to the present projects as it  

was meant only for Inter-State projects like Sardar Sarovar Project.

 14. So far  as  the  Indira  Sagar  Project  is  concerned,  it  was  given  

clearance  on  24.6.1987  and did  not  have  any  specific  direction  for  

rehabilitation.  Similarly,  for  Omkareshwar  Project,  clearance  was  

granted  on  13.10.1993  and  part  (vii)  thereof,  provided  that  the  

rehabilitation programme would be extended to landless labourers and  

people affected due to canal by identifying and allocating  suitable  

land “as permissible”.   

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The words “as permissible” have been interpreted by this Court  

in Narmada Bachao Andolan v. State of M.P., AIR 2011 SC 1989,  

that addition of such terms while granting clearance did not create a  

right in favour of such persons as the rehabilitation is to be made in  

accordance with the terms of R & R Policy. Thus, we do not see any  

reason to reconsider the issue afresh.    

15. The  general  R  &  R  Policy  of  the  State  of  Madhya  Pradesh  

defines ‘displaced person’ in para 1.1 as a person in an area likely to  

come under submergence  because of  project or which is required by  

the project.  The R & R Policy was amended by the State of Madhya  

Pradesh  on  14.8.2000  which  included  the  persons  whose  land  was  

likely  to  come under  submergence  or  was  required  for  the project  

related canal construction.  

16. This Court in Narmada Bachao Andolan I (supra) considered a  

similar issue, but made the distinction between canal affected persons  

and persons affected by submergence in para 169 which reads as under:  

“Dealing with the contention of the petitioners that   there will be 23,500 canal-affected families and they  should be treated on a par with the oustees in the  submergence  area,  the  respondents  have  broadly  submitted  that  there  is  a  basic  difference  in  the   

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impacts of the projects in the upstream submergence  area and its impacts in the beneficiary zone of the   command  area.  While  people,  who  were  oustees   from the submergence zone, required resettlement   and rehabilitation, on the other hand, most of the   people  falling  under  the  command  area  were  in  fact  beneficiaries  of  the  projects  and  their   remaining land would now get relocated with the   construction  of  the  canal  leading  to  greater  agricultural  output.  We agree  with  this  view and  that is why, in the award of the Tribunal, the State of   Gujarat  was  not  required  to  give  to  the  canal- affected people the same relief which was required   to be given to the oustees of the submergence area.”  (Emphasis added)

17. In view of the above, the State of Madhya Pradesh amended R &  

R Policy on 1.9.2003 deleting the words “which is required for project  

related constructions of canal or government project colony.” Thus, in  

view of the above, the State of M.P. does not give the same R & R  

package  to  the  canal  affected  persons  as  those  affected  by  

submergence.  

18. This  Court  has  taken  a  view  that  the  canal  affected  persons  

cannot be put at par with the submergence affected persons, thus, it is  

not possible for the court to put the canal affected persons at par with  

the submergence affected persons.  

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In view of the fact-situation, it was not permissible for the High  

Court  to  take  a  view  contrary  to  the  view  taken  by  this  Court,  

particularly, when the High Court came to the conclusion that there  

was a reasonable differentia between the two.  

19. Be that as it may, this Court vide an interim order dated 5.5.2010  

has also taken care of “hardship cases” in canal affected areas.  

 Mr.  Andhyarujina,  learned  senior  counsel  appearing  for  

the State has graciously agreed that in order to give more benefit to  

canal affected persons, the court may award some more benefits.  The  

State has suggested that in order to achieve the purpose, date of Section  

4 Notification in all the cases, irrespective of the actual date of Section  

4  Notification  in  relation  to  all  canal  affected  persons  be  shifted  

(postponed)  to the date of this judgment and direct to re-determine the  

market value according to the provisions of the  Act 1894 as early as  

possible making the supplementary awards and giving the opportunity  

to such oustees further for filing reference under Section 18 of the Act  

1894.     

20. The State has come forward with most appropriate and valuable  

suggestion,  thus,  we accept  the  same.   In  view of  the  above,  Land  

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Acquisition  Collector  is  directed  to  reconsider  the  market  value  of  

canal  affected persons as  if  Section 4 Notification in  respect  of  the  

same  has  been  issued  on  date,  i.e.  2.8.2011  and  make  the  

supplementary Awards in accordance with the provisions of the Act  

1894.  Such concession extended by the State would be over and above  

the  relief  granted  by  this  Court  vide  order  dated  5.5.2010  as  

clarified/modified  subsequently,  as  explained  hereinabove  and  it  is  

further  clarified  that  further  canal  work  would  be  subject  to  

clearance/direction which may be given by MoEF.   

21.         In view of the above, appeal stands disposed of. No order as to  

costs.  

                                                  ……..…………………J.        (J.M. PANCHAL)

      ………………………..J.        (DEEPAK VERMA)

      ………………………..J. New Delhi,        (Dr. B.S. CHAUHAN) August 2,  2011

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