9911796707
TMI Blog2011 (5) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... eshwar Dam on the Narmada river in Madhya Pradesh. As these appeals are inter-connected and have been filed against interim orders passed by the High Court in the same writ petition, they have been heard together and disposed of by a common judgment. However, for convenience Civil Appeal Nos. 2115-2116 of 2011 are dealt with first. Civil Appeal Nos. 2115-2116 of 2011 2. These appeals have been preferred against the judgment and order dated 21.2.2008 passed by the High Court of Madhya Pradesh at Jabalpur in Writ Petition No. 4457 of 2007, Narmada Bachao Andolan v. State of Madhya Pradesh Anr. , wherein the High Court as an interim measure, has issued directions, inter-alia, for allotment of agricultural land to the displaced persons in lieu of the land acquired for construction of the dam in terms of the Rehabilitation and Resettlement Policy (hereinafter called as R R Policy ) as amended on 3.7.2003. The High Court direction applied even to those oustees who had already withdrawn the compensation, if such oustees opt for such land and refund 50% of the compensation amount received by them. The balance cost of the allotted land would be deposited by the allottees in 20 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btained environmental clearance for the Omkareshwar project from the Ministry of Environment and Forest on 13.10.1993. The Ministry of Welfare granted clearance on 8.10.1993. The Planning Commission also granted clearance on condition of compliance with welfare and environmental clearances vide order dated 25.5.2001. The Central Electricity Authority accorded techno-economic clearance under the provisions of Electricity (Supply) Act, 1948 on 24.7.2001. The Government of India approved and granted financial concurrence from Public Investment Board of the Planning Commission for this project on 17.5.2002. Forest clearance was granted on 20.8.2004 under the provisions of Section 2 of the Forest (Conservation) Act, 1980 for the diversion of 5829 hectares of forest lands. Therefore, there had been various statutory and non-statutory clearances from the authorities. (E) The R R Policy further stood amended on 3.7.2003, to the effect that agricultural land would be offered to the oustees as far as possible ; and not to those who would make application in writing to receive compensation for their acquired land. (F) Construction of the Omkareshwar dam began in 2002 and stood comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these appeals. 4. S/Shri Ravi Shankar Prasad and P.S. Patwalia, learned senior counsel appearing for the appellants have submitted that the High Court ought not to have entertained the writ petition as it did not have material facts/particulars disclosing any cause of action to the writ petitioners even in the PIL. Not a single order passed by any statutory authority had been challenged and the writ petition was filed after inordinate delay without furnishing any explanation for the same. The GRA had been constituted to consider individuals grievances and not a single oustee approached the GRA before filing of the writ petition. The Court ought to have relegated the parties for redressal of their grievances to the GRA. An efficacious alternative remedy was available to the oustees. The High Court further committed an error in issuing directions for allotment of land in lieu of land even in those cases where the oustees have voluntarily accepted the compensation amount; that such oustees would deposit 50% of the said amount and would be entitled to allotment of land. It is further submitted that the High Court erred in treating the major son of such an oustee as a separate fami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the State authorities would carry out and implement, in letter and spirit, all the terms and conditions of the R R Policy. Therefore, it is not permissible for the State authorities to say that it would not strictly adhere to the terms incorporated therein. The appellant-State and its instrumentalities never made any serious attempt to acquire land for such oustees and the compensation amount has been deposited in respective accounts of the oustees. Not a single oustee had ever opted for compensation for land in lieu of land acquired. Amendment made in the R R Policy vide order dated 3.7.2003 is ultra vires and illegal and is liable to be ignored for the reason that the R R Policy had been approved by the State Government, though the amendment had not undergone the same process. If a major son of the family, whose land has been acquired, is not treated as a separate family for the purpose of allotment of land for land acquired, the definition of displaced family under clause 2(b) of the R R Policy would be rendered nugatory. Therefore, such an interpretation is not permissible. This Court, while interpreting the other schemes in respect of Narmada Projects itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence on the said issue. It is settled legal proposition that as a rule relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice. (Vide: Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter-College Ors., AIR 1987 SC 1242; and Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127). 10. It cannot be said that the rules of procedural law do not apply in PIL. The caution is always added that every technicality in the procedural law is not available as a defence in such proceedings when a matter of grave public importance is for consideration before the Court. (Vide: Rural Litiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... families had already shifted and 1726 families remained there. An amount of ₹ 9924 lacs had already been disbursed among the claimants and only a sum of ₹ 589 lacs remained to be disbursed. The report further explained that land in lieu of land acquired would be allotted to oustees as far as possible and as most of the oustees had accepted the compensation, it was not required on the part of the State to allot the land for land acquired. The other benefits of the R R Policy had already been given. In fact, it is in view of this report, the High Court started examining the grievances of the oustees. Several reports were submitted by the GRA before the High Court from time to time and whatever has been disclosed in those reports provided the basis for raising further queries and that, in fact, became part of pleadings of the case. In fact, the present appellants had been asked to lay factual foundation to adjudicate the issues raised by the writ petitioners. 13. In view of the above, it is evident that there were no pleadings before the High Court on the basis of which the writ petition could be entertained/decided. Thus, it was liable to be rejected at the thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to be challenged after a number of years during which period public money has been spent in the execution of the project This Court has entertained this petition with a view to satisfy itself that there is proper implementation of the relief and rehabilitation measures . In short, it was only the concern of this Court for the protection of the fundamental rights of the oustees under Article 21 of the Constitution of India which led to the entertaining of this petition. It is the relief and rehabilitation measures that this Court is really concerned with and the petition in regard to the other issues raised is highly belated. (Emphasis added) In State of Maharashtra v. Digambar, (1995) 4 SCC 683, this Court had taken a similar view. 16. In fact for redressal of any grievance regarding implementation of the R R Policy, the oustees ought to have approached the GRA. There is nothing on record to show how many oustees remained unsatisfied/aggrieved of the orders passed by GRA till the filing of the writ petition. 17. Thus, in view of the above, the High Court ought not to have examined any issue other than relating to rehabilitation i.e. implementation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court the remedy available to the party is to file a review petition. (Vide: State of Maharashtra v. Ramdas Shrinivas Nayak Anr., AIR 1982 SC 1249; Transmission Corporation of A.P. Ltd Ors. v. P. Surya Bhagavan, AIR 2003 SC 2182; and Mount Carmel School Society v. DDA, (2008) 2 SCC 141). 23. Be that as it may, in view of the fact that neither the writ petitioner asked the High Court to quash the said amendment dated 3.7.2003, nor the court has suo motu quashed it, nor the writ petitioner has filed Special Leave Petition raising the said point, it is not permissible for us to deal with the issue. LAND ACQUISITION AND REHABILITATION: Article 21: 24. It is desirable for the authority concerned to ensure that as far as practicable persons who had been living and carrying on business or other activity on the land acquired, if they so desire, and are willing to purchase and comply with any requirement of the authority or the local body, be given a piece of land on terms settled with due regard to the price at which land has been acquired from them. However, the State Government cannot be compelled to provide alternate accommodation to the oustees and it is for the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, it is clear that right to property under Article 300-A is not a basic feature or structure of the Constitution. It is only a constitutional right The principle of unfairness of the procedure attracting Article 21 does not apply to the acquisition or deprivation of property under Article 300-A giving effect to the directive principles . 28. This Court in Narmada Bachao Andolan I held as under: 62. The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were. At the rehabilitation sites they will have more and better amenities than those they enjoyed in their tribal hamlets. The gradual assimilation in the mainstream of the society will lead to betterment and progress. 29. In State of Kerala Anr. v. Peoples Union for Civil Liberties, Kerala State Unit Ors., (2009) 8 SCC 46, this Court held as under: 102. Article 21 deals with right to life and liberty. Would it bring within its umbrage a right of tribals to be rehabilitated in their own habitat is the question? 103. If the answer is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or allotment, was not acceptable. (vi) Only 11 per cent of the displaced families were able to purchase private agricultural land themselves without any aid or assistance of the State authorities. (vii) None of the oustees has given option in writing to receive compensation in lieu of land acquired. (viii) The State deposited the amount of compensation in the accounts of the oustees irrespective of whether they wanted land in lieu of land acquired. (ix) None of the protections/facilities provided for persons belonging to Scheduled Castes and Scheduled Tribes under the R R Policy had been accorded. The District Collector did not make any verification in regard to their claim for land in lieu of land acquired as required under the R R Policy. (x) The Government had not made any attempt to provide any grant-in-aid to cover up the gap between the amount of compensation and the actual cost of land available for the purpose, particularly to all displaced Scheduled Castes and Scheduled Tribes families. (xi) The State authorities had hastily proceeded to complete the rehabilitation process and started the power project of the Omkareshwar Dam contrary to the assurances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it will be allotted equal land as far as possible, subject to a ceiling of 8 hec. (Portion in italics was added vide amendment dated 3.7.2003) xx xx xx 5. Recovery of cost of allotted land: (5.1) At least fifty per cent amount of compensation for the acquired land shall be retained as initial installment towards the payment of the cost of land to be allotted to the displaced family. However, if a displaced family does not wish to obtain land in lieu of the submerged land and wishes full payment of the amount of compensation, it can do so by submitting an application to this effect in writing to the concerned Land Acquisition Officer. In such cases displaced families will have no entitlement over allotment of land and shall be paid full amount of compensation in one installment. As option once exercised under this provision shall be final, no claim for allotment of land in lieu of the acquired land can be made afterwards. (Portion in italics was added vide amendment dated 3.7.2003). If any displaced family belonging to the Scheduled Tribes, submits such an application, it will be essential to obtain orders of the Collector who will, after necessary enquiry, certify that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to judicial review unless the policies are contrary to statutory or constitutional provisions or arbitrary or irrational or an abuse of power. (See: Ram Singh Vijay Pal Singh Ors. v. State of U.P. Ors., (2007) 6 SCC 44; Villianur Iyarkkai Padukappu Maiyam v. Union of India Ors., (2009) 7 SCC 561; and State of Kerala Anr. v. Peoples Union for Civil Liberties, Kerala State Unit Ors., (Supra). 35. Thus, it emerges to be a settled legal proposition that Government has the power and competence to change the policy on the basis of ground realities. A public policy cannot be challenged through PIL where the State Government is competent to frame the policy and there is no need for anyone to raise any grievance even if the policy is changed. The public policy can only be challenged where it offends some constitutional or statutory provisions. AS FAR AS POSSIBLE : 36. The aforesaid phrase provides for flexibility, clothing the authority concerned with powers to meet special situations where the normal process of resolution cannot flow smoothly. The aforesaid phrase can be interpreted as not being prohibitory in nature. The said words rather, connote a discretion vested i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marked by the State Government for resettlement of the displaced tribals, such land is not available because it is already occupied by other persons who themselves will be uprooted if such land is acquired and made available for the tribals displaced on account of the Hasdeo Bango Dam Project. If this is true, the remedy might be worse than the disease because in order to re-settle one set of displaced persons the State Government would be displacing another set of persons. We would, therefore direct the State Government to consider in the meanwhile as to whether the cultivable land at any other place or places can be made available for the tribals who are displaced on account of the present project. (Emphasis added) 41. This Court in Narmada Bachao Andolan-I, held as under: 58 . when the removal of the tribal population is necessary as an exceptional measure, they shall be provided with land of quality at least equal to that of the land previously occupied by them and they shall be fully compensated for any resulting loss or injury. The rehabilitation package contained in the Award of the Tribunal as improved further by the State of Gujarat and the other States prima fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles 37, 38, 39(a), (b), (e), (f), 41, 43, 46 and 47 of the Constitution of India. (Vide: Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde Anr. (1995) Suppl. 2 SCC 549; and N.D. Jayal Anr. v. Union of India Ors., AIR 2004 SC 867). 44. Mere payment of compensation to the oustees in such a case may not be enough. In case the oustee is not able to purchase the land just after getting the compensation, he may not be able to have the land at all. In K. Krishna Reddy Ors. v. Spl. Dy. Collector, Land Acqn. Unit II, LMD Karimnagar, AIR 1988 SC 2123, this Court expressed grave concern on the issue observing as under: .After all money is what money buys. What the claimants could have bought with the compensation in 1977 cannot do in 1988. Perhaps, not even half of it. It is a common experience that the purchasing power of rupee is dwindling with rising inflation ..The Indian agriculturists generally have no avocation. They totally depend upon land. If uprooted, they will find themselves nowhere. They are left high and dry. They have no savings to draw. They have nothing to fall back upon. They know no other work. They may even face starvation unless rehabilitated. (Emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s without any assistance from the State Authorities. The submission raised on behalf of the State that it had been impossible for authorities to acquire/purchase the land cannot be accepted as this is a pure question of fact and in absence of any material to show that any attempt had ever been made to acquire the land to rehabilitate the oustees, such a submission remains unsubstantiated. 48. Same appears to be the position in regard to the amended provisions of the R R Policy. The phrase as far as possible would come into play, in case an attempt is made to acquire/purchase lands and then to make allotment of land to oustees. The other added term i.e. giving the option to oustees to make application for acceptance of compensation and not claiming land for land acquired, remained inapplicable, as it is alleged that not a single oustee made such an application. If it is so, the question remains merely academic. None of the obligations on the part of the authorities as clearly stipulated by the R R Policy had been fulfilled. The Adhiniyam 1985 had not been made applicable in respect of the Omkareshwar Dam Project taking into account the past experience in other projects. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objections of the oustees for allotment of land in lieu of land acquired except those where the dispute related to entitlement of major sons for allotment of land and where the oustees had withdrawn the entire amount of compensation/SRG amount. Report dated 13.1.2010 submitted by the GRA before the High Court makes it clear that all objections filed before it by the oustees had been decided and directions issued by the GRA had been complied with by the State authorities. 50. Before the High Court, the State put forward the explanation that the Authorities had Awarded the benefit of SRG to the oustees. In fact, the PAFs had complained that with the amount of compensation for their lands they were not able to buy land elsewhere and that instead of purchasing the land by Government, the additional cost involved may be made available to the PAFs to enable them to purchase land of their choice. The State Government after consultation with all concerned and approval by Hon ble Chief Minister devised a scheme whereby the PAF is given substantial additional amount over and above the compensation for his land in order to enable him to purchase arable and irrigable land at the location of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rea also increase as a result of declaration of the project. Hence, it is difficult for an oustee to purchase land in command area from the amount given to him under the Act 1894. SRG is designed to nullify both the above effects and to enable the oustee to get an amount by which he can purchase land to the extent of his land acquired, in command area. SRG= Award Amount calculated - Award Amount calculated for equal land in command (minus) for the land acquired from area as per Act 1894 oustee in submergence area including solatium as per Act 1894 including solatium or SRG= Award with assumption - Actual Award for the basis that land is in command (minus) land in submergence area. area The aforesaid relief granted by the appellants to the oustees as SRG is much more than the amount of compensation or amount entitled in R R Policy as amended on 3.7.2003. In fact, to certain extent, it is in consonance with the provisions contained in Clause (5.4) of R R Policy, wherein the State is under an obligation to meet the gap of amount between the amount of compensation and the value of the land purchased by the oustees. 53. The appellants have submitted that all the oustees have v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e definition of family would to an extent become obscure. As a major son constitutes separate family within the interpretation clause of family , no meaning thereto can be given. (Emphasis added) 57. In the instant case, the High Court on this issue held as under :- There is no separate definition of displaced family given in para 3 of the R R Policy of 1993. Hence, the same definition as has been given in sub-para 1.1(b) of the R R policy of 1993 would be applicable to para 3 of the R R policy and the displaced family in para 3.2 will include husband, wife, minor children and other persons dependent on the head of the family and every son who has become major on or before the date of notification under Section 4 of the Land Acquisition Act but who was part of the larger land owning family from whom land was acquired will have to be treated as separate displaced family from whom land is acquired under the Land Acquisition Act. While calculating however the extent of landholding of a displaced family for the purposes of determining the area of land to be allotted to the displaced family, the share of the displaced family without the major son may only be taken. Simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the quotable in law is avoided and ignored if it is rendered, in ignorance of a Statute or other binding authority. While dealing with observations made by a seven Judges Bench in India Cement Ltd. etc. etc. v. State of Tamil Nadu etc. etc., AIR 1990 SC 85, the five Judges Bench in State of West Bengal v. Kesoram Industries Ltd. Ors., (2004) 10 SCC 201, observed as under:- A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the Court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context, . A statement caused by an apparent typographical or inadvertent error in a judgment of the Court should not be misunderstood as declaration of such law by the Court. (Emphasis added) (See also Mamleshwar Prasad Anr. v. Kanhaiya Lal (Dead) by Lrs., AIR 1975 SC 907; A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531; State of U.P. Anr. v. Synthetics and Chemicals Ltd. Anr., (1991) 4 SCC 139; and Siddhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 619, this Court observed : None is free from errors, and the judiciary does not claim infallibility. It is truly said that a judge who has not committed a mistake is yet to be born. Our legal system in fact acknowledges the fallibility of the courts and provides for both internal and external checks to correct the errors. The law, the jurisprudence and the precedents, the open public hearings, reasoned judgments, appeals, revisions, references and reviews constitute the internal checks while objective critiques, debates and discussions of judgments outside the courts, and legislative correctives provide the external checks. Together, they go a long way to ensure judicial accountability. The law thus provides procedure to correct judicial errors. DISCRIMINATION: 65. We also have to consider the submissions made on behalf of the respondent No.1 that the denial of allotment to major sons of agricultural land would amount to hostile discrimination as in earlier cases, it had been granted. 66. Unequals cannot claim equality. In Madhu Kishwar Ors. v. State of Bihar Ors., AIR 1996 SC 1864, it has been held by this Court that every instance of discrimination does not nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urports to regulate has to be rejected and preference should be given to that construction which avoids such results. (pp. 131-132) 71. In Directorate of Enforcement v. Deepak Mahajan, AIR 1994 SC 1775, this Court held as under: Though the function of the courts is only to expound the law and not to legislate, nonetheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. In such circumstances, it is the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute. In Maxwell on Interpretation of Statutes, Tenth Edn. at page 229, the following passage is found: Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. But to winch up the legislative intent, it is permissible for courts to take into account of the ostensible purpose and ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gulfan v. Sanat Kumar Ganguli, AIR 1965 SC 1839, it has been held as follows: 19 Often enough, in interpreting a statutory provision, it becomes necessary to have regard to the subject matter of the statute and the object which it is intended to achieve. That is why in deciding the true scope and effect of the relevant words in any statutory provision, the context in which the words occur, the object of the statute in which the provision is included, and the policy underlying the statute assume relevance and become material 78. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. Justice means justice between both the parties. Justice is the virtue, by which the Court gives to a man what is his due. Justice is an act of rendering what is right and equitable towards one who has suffered a wrong. The underlying idea is of balance. It means to give to each his right. Therefore, while tempering the justice with mercy, the Court has to be very conscious that it has to do justice in exact conformity with the statutory requirements. 79. Thus, it is evident from the above referred law, that the Court has to interpret a provision giving i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 0 0 3@2 hect.= 6 hect .0 10 @ 2 hect. = 20 hect. Total Entitlement 0 0 2 hect. 8 hect 6 hect. 6 hect. 81. IMPLICATIONS IF IMPUGNED JUDGMENT IS UPHELD It is apparent that the directions of the Hon ble High Court regarding land-for-land would lead to grave inequity, and thereby likely to cause undue enrichment of some categories of oustees: a. Sons of land owning class get better rights than their fathers. b. Sons of land owning class get better rights than those of land less class. c. Even though everybody loses same measure of land, some are not entitled to any land while for some it becomes an unimaginable bounty or proves to be bonanza. 82. In case, the view taken by the High Court is upheld, it would have very serious repercussions for the reason that no land had been acquired wherein a major son can independently claim compensation as a matter of right. In such an eventuality, the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the public or the State. The mistake is manifestly wrong and has a direct impact on the procedure to be adopted for rehabilitation. The impact of allotment cannot be against public good and has to be balanced with an appropriate grant to the oustees. It is, therefore, essential to rectify the mistake. 83. Compensation in the present context has to be understood in relation to right to property. The right of the oustee is protected only to a limited extent as enunciated in Article 300-A of the Constitution of India. The tenure holder is deprived of the property only to the extent of land actually owned and possessed by him. This is, therefore, limited to the physical area of the property and this area cannot get expanded or reduced by any fictional definition of the word family when it comes to awarding compensation. Compensation is Awarded by authority of law under Article 300-A of the Constitution read with the relevant statutory law of compensation under any law made by the legislature and for the time being in force, only for the area acquired. Rehabilitation on the other hand, is restoration of the status of something lost, displaced or even otherwise a grant to secure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as neither justified nor legally sustainable. In effect, the major son would not be entitled to anything additional as his separate share in the original holding and it will not get enhanced by the fictional definition as stated in the impugned judgment. The major son would, however, be entitled to his share in the area which is to be allotted to the tenure holder on rehabilitation in case he is entitled to such a share in the law applicable to the particular State. 85. More so, the view taken by the High Court that the land to be allotted to major sons shall be determined on the basis of his share in the land prior to its acquisition, does not appear to be compatible or in consonance with the terms of R R Policy which provides for a minimum allocation of 2 hectares. Thus, the policy must be interpreted to the effect that the major sons of oustees will be entitled to all the benefits under the R R Policy, except allocation of agricultural land. Each State has a right to frame the rehabilitation policy considering the extent of its resources and other priorities. One State is not bound if in a similar situation, the other State has accorded additional facilities even over and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant relief in the impugned judgment and order taking into account the said amendment. The same is not under challenge at the behest of respondents before us. In such an eventuality, it was not desirable for the High Court to make any comment on the competence of the State to amend the policy and the finding so recorded in Para 38 of the judgment cannot be sustained in the eyes of law, and thus is set aside. Civil Appeal No. 2082 of 2011 87. The present appeal has been preferred by the appellant/writ petitioners mainly on the 3 issues on which no relief has been granted by the High Court. Therefore, the appeal is limited to the extent of: whether landless oustees are entitled to allotment of agricultural land; whether the NWDT Award dated 12.12.1979 is applicable to the present project of the Omkareshwar Dam; and, thirdly, whether the oustees of 5 villages which have already been submerged, are entitled to allotment of land in lieu of land acquired, in spite of the fact that the SRG had already been granted to them. 88. The facts and circumstances giving rise to this appeal have already been elaborately mentioned in connected Civil Appeal Nos.2115-2116 of 2011, thus, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to landless labourers and the people affected due to canal by identifying and allocating suitable land as permissible. A time bound programme should be submitted by December, 1993. 91. The High Court has held that the said condition so added stood qualified by the words `as permissible and thus, the landless labourers would get the land even for agricultural purposes to the extent of 2 hectares (about 5 acres), if it is permissible in law or any other government policy. In addition thereto, the High Court had further taken note of the fact that all other reliefs including the transportation charges, plots for residential accommodation and preference for employment etc. etc., shall be available not only to landless labourers, but also to major sons of such oustees including landless labourers. As the said condition imposed by the Ministry of Forest and Environment while granting clearance is as stood qualified, and has been subject to any other law for the time being in force or the government policy etc., we do not feel that landless labourers are entitled to allotment of land. More so, the R R Policy itself provides a particular mode of retaining 50% of the compensation amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been defined as: 1.2(a) Landless Persons: A person, who, whether individually or jointly with members of his family, does not hold any agricultural land or does not have any land for agriculture .. Clause 6 thereof further provided for the families of landless agricultural labourers, a rehabilitation grant of ₹ 11,000/-; transport assistance; allotment of plots in rural areas for residential purpose; and various other special financial assistance. The relevant part of Clause 9.1 and 9.2 reads as under: 9.1 The Narmada Valley Development Authority will ensure appropriate arrangements for discharge these responsibilities within a stipulated time-frame. In the interim period special financial assistance will be given to supplement the income of the landless agricultural labourers and landless scheduled caste and schedule tribe oustee families for three year in descending order which shall be in addition to the grant in aid mentioned in Para 6.1. This period of three years will be calculated from the payment year of the grant in aid under Para 6.1. Thus, a landless oustee family will get a special income support amount of ₹ 8,250/-, ₹ 5,500/- and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has rejected the said contention of the appellant on the ground that the Tribunal had been constituted to resolve the water dispute as defined under Section 2(c) of the Act, 1956, for the reason that a dispute had arisen between various States i.e. the States of Maharashtra, Madhya Pradesh, Gujarat and Rajasthan. The matter was limited to resettlement and rehabilitation of 6147 oustee families spread over in 158 villages in the State of Madhya Pradesh as a consequence of Sardar Sarovar Project. Therefore, the High Court after considering the entire arguments, has come to the conclusion that the Tribunal was considering only the resettlement of the aforesaid oustee families spread over 158 villages in the State of Madhya Pradesh and, therefore, the Tribunal was concerned only with those persons and it did not take in its ambit any other future plan or project. The findings recorded by the High Court read as under: Thus, all the aforesaid directions in the NWDT Award were in relation to the Sardar Sarovar Project and were not applicable to displaced families affected by the acquisition of land for the Omkareshwar Project. 95. Shri Sanjay Parekh could not point out anything ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has affected the residents of 30 villages. Five villages had already been submerged. Before the High Court, the question arose as to whether the oustees of those 5 villages which have already been submerged, were entitled to the benefits of R R Policy and they had been Awarded only the compensation/ SRG and the area of these 5 villages has been submerged during the pendency of litigation before the High Court and this Court. This Court while disposing of the Civil Appeal Nos. 2115-2116 of 2011 against this very judgment vide order dated 14.5.2008, has issued a large number of directions and also asked the oustees to approach the GRA. However, Clause 4 thereof reads as under: The above interim direction will come in the way of the State Government making efforts to provide solution for land wherever required in terms of its R R Policy. 99. The High Court decided the issue observing that as submerging of the 5 villages took place in view of the orders by the courts and the oustees had been paid compensation/SRG and this Court had passed the order not to submerge the remaining 25 villages till the completion of rehabilitation took place, it was not proper for the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld stand submerged actually and, therefore, withdrawal of the acquisition proceedings was not permissible, though the land acquisition proceedings had not been completed and the actual physical possession of the land in dispute has not been taken. The persons/tenure holders interested are still in possession of their respective lands. Therefore, the appellants have a right, not to acquire the land. Entries in revenue records after mutation do not confer any title or interest in the property. The land in dispute would not be submerged even temporarily unless the flood situation occurs on back water level. Therefore, the authorities had taken a decision on 2.4.2009 to abandon the land acquisition proceedings. The land in dispute would be water locked unless the height of the road is enhanced. However, considering the cost of rehabilitation as very high, the authorities have taken a decision to raise the level of the road to the extent that no part of the land in dispute would ever be submerged or water locked and people residing there or occupying the land would have access to the said land. Therefore, the appeals deserve to be allowed and the impugned order of the High Court is lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be water locked, as it reads that some area of a village becoming island or houses surrounded by flood or a village which has become an unviable unit . The acquisition of 284.03 hectares of land of five villages was approved and grant of an amount of ₹ 550 lakhs was made. 107. By letter dated 2.4.2009, the previous plan was reconsidered in respect of acquiring the said land for five villages considering that the cost of rehabilitation would be much more than raising the level of the road at the cost of 11 crores, which would prevent this area from being water locked. 108. Therefore, the case of the State had been that the land in dispute measuring 284.03 hectares would not be submerged temporarily or permanently, rather it may at the most become in-accessible at the time of highest flood situation exceptionally and in case the level of the road is raised, it may work as embankment and this land would not be submerged. Thus, on this premise, the authorities thought it proper to abandon the acquisition proceedings. 109. The State authorities have pleaded before the High Court by filing rejoinder affidavit that the standard practice in dam projects involving sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve these villages during the pendency of the writ petition or until further orders passed by this Court. 111. So far as the acquisition of land in such a situation is concerned, even the rehabilitation schemes under the NWDT Award, provided that the BWL at the highest flood level in the Sardar Sarovar would be worked out by the CWC in consultation with the States of Madhya Pradesh and Gujarat. The other relevant part reads specifically the lands which are to be compulsorily acquired . 112. A reference Award made in this case on 4.8.2009 also particularly reveals that the property acquired under the project will not be covered by water, but after filling of water, it will be difficult for the villagers to reach upto that level and the symbolic possession had been taken on 8.12.2007 as is evident from para 29 of the said Award. 113. In the instant case, the issue to be determined is whether it is necessary to acquire this land compulsorily, likely to be submerged temporarily or permanently and also, whether the acquisition proceedings had reached the stage of no return, i.e. it cannot be abandoned. Undoubtedly, most of the land in these five villages which was likely to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady been taken. The land has already vested in the State. This may be seen from the judicial orders of Reference Courts Devas; the land record of the revenue authorities of the State Government, the order of the Land Acquisition Officer and the affidavits of the concerned oustees which were placed on record before the said authorities. (c) The order of the Land Acquisition Officer dated 14.8.2008 to Tahsildar, Bagli district Devas asking for mutation in favour of NVDA, makes it evident that as the land acquisition proceedings in question stood completed and possession of the land had been taken by the State. (d) The order in mutation proceedings had never been challenged by NVDA and thus, attained finality and it makes it clear that the possession is with the NVDA. (e) As per Section 117 of the M.P. Land Revenue Code, the record of rights entered in the land records is presumed to be correct, until the contrary is proved. (f) Information received from the Tahsildar, Bagli under the Right to Information Act reads that the lands and houses of these 5 villages had already been transferred in favour of NVDA. (g) The Reference Court recorded a judicial finding that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Industrial Trust, Amritsar v. State of Punjab Ors., (1996) 4 SCC 212, this Court held as under: It is now well settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. (Emphasis added) 121. In P.K.Kalburqui v. State of Karnataka, (2005) 12 SCC 489, this Court held that if the land is vacant and unoccupied, taking symbolic possession by the State Government, would amount to taking possession. In the said case, in spite of the fact that symbolic possession of the vacant land had been taken, the Hon ble Minister directed the issuance of a Notification under Section 48 of the Act 1894 on the basis of his understanding of the law that symbolic possession did not amount to actual possession and that the power to withdraw from acquisition could be exercised at any time before actual possession was taken. This Court has held as under:- There can be no hard-and-fast rule laying down what act would be sufficient to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard, it may also be pertinent to deal with mutation proceedings heavily relied upon by the respondent no. 1. Mutation proceedings are much more in the nature of fiscal inquiries. Mutation of a property in the revenue record does not create or extinguish title, nor has it any presumptive value of title. It only enables the person, in whose favour the mutation is entered, to pay the land revenue in question. (Vide: Thakur Nirman Singh Ors. v. Thakur Lal Rudra Pratap Narain Singh, AIR 1926 PC 100; Smt. Sawarni v. Inder Kaur Ors., AIR 1996 SC 2823; R.V.E. Venkata Chala Gounder v. Arulmign Ciswesaraswamy V. Temple Anr., AIR 2003 SC 4548; and Suman Verma v. Union of India Ors., (2004) 12 SCC 57). Therefore, entries in the revenue record are of no assistance to determine the present controversy. 124. In view of the above, law on the issue can be summarized to the effect that no strait-jacket formula can be laid down for taking the possession of the land for the purpose of Sections 16 and 17 of the Act 1894. It would depend upon the facts of an individual case. In case the land is fallow and barren and does not have any structure or crop on it, symbolic possession may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so acquired and they would make a shift from the acquired land after compliance of the said obligation by the State. The report concludes as under: Therefore, on the spot inspection and the recorded evidence, there is no doubt in my mind to conclude that the standing crops have been sown by the former Bhumiswamis and the acquired lands of five villages in questions are actually in possession of the former Bhumiswamis even now. It has also got to be deduced further that N.V.D.A. has never been in possession of the aforesaid lands since the acquisitions of the same. (Emphasis added) 127. We have seen the D.V.Ds. and C.Ds. of the videos, prepared during the time of inspection by District Judge, Indore in the presence of hundreds of tenure holders and officials. It is evident from the same that the tenure holders identified their land in presence of Shri Alok Agrawal, the social activist. The entire land is having wheat, cotton, maize and millet crops. The said tenure holders have admitted that they had been cultivating the land for last several years and they had never been dispossessed from the land in dispute by the State. Shri Agarwal had been shown advancing legal submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the respondents before the High Court were totally false. The High Court was not justified in entertaining their applications in this regard, without verifying the factual aspects. 130. In such a fact-situation, as the actual physical possession has not yet been taken by the authorities and the entries in the revenue records etc. are not the conclusive proof, therefore, the State Government is competent to exercise its power under Section 48 of the Act 1894. However, it will be subject to the decision on another relevant issue regarding submergence of the land in dispute permanently or temporarily which is to be considered hereinafter. 131. Before adverting to the next issue, it is desirable to deal with the conduct of the NBA. The question is not of justification of the tenure holders to retain possession of the land, rather it had emphatically been argued by Shri Sanjay Parekh, learned counsel appearing for the said applicant/respondent, that powers under Section 48 of the Act 1894 could not be resorted to because the tenure holders had already been physically dis-possessed and land stood vested in the State. Therefore, the same could not be divested. The matter was ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State or those issues whose crevices and complexities the court may not easily unravel, and comparatively generously in cases involving public interest of sections of people for whom the administration of justice and its reach are not effective and the rights delivery processes, are shown to be weakened by power and influence. (Vide: R. and M. Trust v. Koramangla Residents Vigilance Group Ors., AIR 2005 SC 894). 134. Where the cause of action is genuinely in the general public interest, the court will relax the requirement of bona fides and appoint an amicus curiae to deal with the matter and keep the matter out of the power of the original applicant. [Vide: M/s Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra Ors. , AIR 2008 SC 913; and A. Abdul Farook (supra)]. 135. The rights of the public interest litigant in a PIL are always subordinate to the interests of those for whose benefit the action is brought. The status of dominus litis could not be conferred unreflectively or for the asking, on a PIL petitioner as that would render the proceedings vulnerable to and susceptible of a new dimension which might, in conceivable cases be used by persons for personal e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r abuse or means to subvert justice. 139. The interest of justice and public interest coalesce. They are very often one and the same . Therefore, the Courts have to weigh the public interest vis- -vis the private interest. A petition containing misleading and inaccurate statement(s), if filed, to achieve an ulterior purpose, amounts to an abuse of the process of the Court and such a litigant is not required to be dealt with lightly. Thus, a litigant is bound to make full and true disclosure of facts . The Court is not a forum to achieve an oblique purpose. 140. Whenever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further with the matter. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it. However, the concealed fact must be material one in the sense that had it not been suppressed, it would have an effect on the merit of the case/order. The legal maxim Juri Ex Injuria Non Oritur means that a right cannot arise out of wrong doing, and it becomes applicable in a case like this. (Vide: The Ramjas Foundation Ors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement .If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone .. The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. (Emphasis supplied) 144. In such a case the person who suppresses the material facts from the court is guilty of Suppressio Veri and Suggestio Falsi i.e. suppression or failure to disclose what a party is bound to disclose, which may amount to fraud. 145. In view of the above, we reach the inescapable conclusion that the NBA has not acted with a sense of responsibility and so far succeeded in securing favourable orders by misleading the Court. Such conduct cannot be approved. However, in a PIL, the Court has to str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The 10.00 hectare land (under reference) of village falls between FRL and BWL, which will come under temporary submergence when water level exceeds FRL (196.60m). (vi) Conclusion of the Committee: Out of the total land subject matter of dispute ad-measuring 284.03 hectare in the aforesaid five villages; 281.75 hectare falls between FRL and BWL, which will come under temporary submergence due to back water effect. The remaining 2.28 hectare area will not come under submergence due to back water levels when water levels are up to BWL. 149. The parties were given copies of the report and asked to submit their objections, if any. In response to the said order, the parties submitted their comments/objection to the report submitted by the CWC. The State Government has submitted that the report suggested that 2.28 hectares of the area will never be submerged even when water levels are upto BWL. However, the remaining area of 281.75 hectares falls between FRL and BWL, would be under temporary submergence due to back water effect. In such a fact-situation, the CWC guidelines of 1997 provide that MWL at the dam site during maximum flood and BWL is the corresponding flood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 and 2.4.2009, are arbitrary, malafide and unconstitutional. Under the R R Policy, even any land temporary submerged, is bound to be acquired. In support of such a contention, reliance has been placed on the definition of displaced person contained in Clause 1.1 of R R Policy which speaks of the person whose land is likely to come under submergence whether temporarily or permanently. Further reliance has also been placed upon the judgment of this Court in Narmada Bachao Andolan II (Supra) providing for the same and in view thereof, it has been submitted that the land is compulsorily to be acquired. 153. An extract from guidelines for preparation of project estimates for river valley projects of CWC March 1997 is reproduced below:- 6.2.3. . Generally acquisition may be done upto FRL only. The area between FRL MWL may be acquired only if the submerged land is fertile and the duration of submergence beyond FRL upto MWL is long enough to cause damage to crops i.e. over 15 days duration. (for acquisition of land the effect of back water need not be taken into consideration). xxx xxx xxx xxx All structures coming under submergence between FRL and MWL should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mum water level and backwater would take place only after it reaches full height. xxx xxx xxx xxx 50. . Further it was decided as per decision in the last meeting of the Sub-group all possible arrangements for R R should be made by the concerned State Govts. For completing the same in all respect both in regard to oustees affected by the permanent as well as temporary submergence six months ahead from submergence. Actual allotment of land, house plot and payment of compensation etc. and not merely offer of such facilities as per the R R package should be made in respect of all PAFs (both categories of affected by permanent and temporary submergence) except in the case of hardcore PAFs who refuse to accept the package and unwilling to shift. Temporary submergence even for a short period can affect the oustees badly and that it is desirable to keep this in mind while rehabilitating the oustees. (emphasis supplied) 157. If we read the above referred to provisions of the R R Policy, findings in NWDT Award, project report prepared by CWC in March 1997 and observations made in Narmada Bachao Andolan II (Supra) and analyse it properly, the following picture emerges: (i) I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly. Therefore, during Monsoon season temporary submergence due to backwater effect above FRL will not be more than 4 to 5 days. In respect of non-Monsoon period it is to mention that there will be daily regulated release from both Indira Sagar Dam in the upstream of Omkareshwar dam as well as from Omkareshwar dam itself for power generation and other commitments. The reservoir level at Omkareshwar dam are likely to be maintained within FRL by suitable reservoir operation at all times during non-monsoon period. In the present case, the disputed land admeasuring 284.03 hectares between FRL and BWL comes under temporary submergence for a duration of less than 15 days when a flood of SPF magnitude, which is 1 in 1000 years return period flood for this project impinges the reservoir at FRL. Therefore, keeping in view all the above points given in Para 2(i) to Para 2(iv), the Committee is of the view that the agricultural lands within FRL and BWL need not be acquired as per the guidelines for preparation of Project, Estimates for River Valley Projects prepared by Central Water Commission in March, 1997. 159. In view of the expert opinions rendered by CWC and other materials on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. (i) in Civil Appeal Nos. 2115-2116/2011. (iii) Civil Appeal Nos. 2083-2097/2011 and 2098-2112/2011 These appeals have been preferred by the State of M.P. and NHDC in respect of acquisition of land of five villages, wherein the State wants to withdraw the acquisition proceedings. Our conclusion is that in the fact-situation of the case, the State is entitled to abandon the land acquisition proceedings in exercise of its power under Section 48 of the Act 1894. However, it shall not apply to 167 dwelling units on the said land. Such persons whose dwelling units are acquired shall be entitled for the benefit of R R Policy to the extent provided therein. The State shall establish the roads etc. after raising the height of the Bandh as proposed by the Authorities. (iv) The IA. Nos. 196-210, 211-225, 241-255 of 2011 and 226- 240 of 2011 filed by both the parties under Section 340 Cr.P.C., do not require to be dealt with in view of our observations made in para 146 of this judgment. All the appeals and IAs. stand disposed of accordingly. No order as to costs. 161. We have been given to understand that on the Narmada River, in the State of Madhya Pradesh, in all 29 major a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
