State of Madhya
Pradesh & ANR. Vs. Medha Patkar & Ors.
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
2also 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) 3read 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.
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 5of 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 6environmental 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.
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 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 9benefited 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.
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 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. 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."
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."
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".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 16 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.
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 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.
(Dr. B.S. CHAUHAN)
New
Delhi,
August
2, 2011
Back
Pages: 1 2
