State Of M.P. & Anr vs Medha Patkar & Ors

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.

4 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.

10 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".

15 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.

17 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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