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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