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TMI Blog2005 (3) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... f construction of a dam over the River Narmada began its journey in 1961. A large number of residents of the States of Madhya Pradesh, Maharashtra and Gujarat are affected by the said construction. The Government of India in exercise of its power conferred upon it under Section 4 of the Inter-State Water Disputes Act, 1956, constituted a Tribunal and made the following reference to it : In exercise of the powers conferred by sub-section (1) of Section 5 of the Inter-State Water Disputes Act, 1956 (33 of 1956), the Central Government hereby refers to the Narmada Water Disputes Tribunal for adjudication of the water dispute regarding the inter-State River Narmada, and the river- valley thereof, emerging from Letter No. MIP-5565/C-10527-K dated 6.7.1968, from the Government of Gujarat . Another reference by the Government of India was made on 16.10.1969. The State of Gujarat before the Tribunal admittedly made an offer that the oustees can be resettled and rehabilitated in the State of Gujarat wherefor a rehabilitation package would be granted if they opt therefor and in the event the outstees opt to stay back in their home state, the entire expenses for the purpose of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mainstream of the society would lead to betterment and progress. This Court in its judgment noticed that the award provided that every displaced family whose more than 25% of agricultural landholding is acquired, would be entitled to be allotted irrigable land of its choice to the extent of land acquired subject to the prescribed ceiling of the State concerned with a minimum of two hectares land. Furthermore, the PAFs will be allotted a house/plot free of cost. The court noticed that the State Governments have liberalized the policy with regard to resettlement and have offered packages more than what was provided for in the award of the Tribunal. Such liberalized policy included those PAFs who were even encroachers, landless/displaced persons, joint-holders, tapu-land (island) holders and major sons (18 years old). The court noticed various measures taken by the States of Madhya Pradesh, Maharashtra and Gujarat for sustainable development as regard preserving the socio-cultural environment of the displaced persons in these States. This Court noticed that although in terms of the award those sons of the oustees who had become major one year prior to the issuance of the notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose choice is not to go to Gujarat. Appropriate directions may, therefore, have to be given to ensure that the speed in implementing R R picks up. Even the interim report of Mr. Justice Soni, GRA for the State of Madhya Pradesh, indicates lack of commitment on the State's part in looking to the welfare of its own people who are going to be under the threat of ouster and who have to be rehabilitated. Perhaps the lack of urgency could be because of lack of resources, but then the rehabilitation even in Madhya Pradesh is to be at the expense of Gujarat. A more likely reason could be that, apart from electricity, the main benefit of the construction of the dam is to be of Gujarat and to a lesser extent to Maharashtra and Rajasthan. In a federal set-up like India, whenever any such inter-State project is approved and work undertaken the States involved have a responsibility to cooperate with each other. There is a method of settling the differences which may arise amongst there like, for example, in the case of inter-State water dispute the reference of the same to a Tribunal. The award of the Tribunal being binding, the States concerned are duty-bound to comply with the terms ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jalsindhi. In these applications, the petitioners had prayed for a direction upon the Respondents not to proceed with further construction by raising the height of the dam till all affected people at the height of 110 meters are rehabilitated in all respects. As GRA had been constituted by the State of Madhya Pradesh, this Court without going into the merit of the matter by orders dated 16.4.2004 and 23.7.2004, directed the parties to agitate their grievances at the first instance before it. CONTENTIONS: The contention of the Applicants herein is that having regard to the fact that they are Project Affected Families (PAFs) and, thus, being oustees within the meaning of the award made by Narmada Water Dispute Tribunal (NWDT), each one of them was entitled to the benefits of the rehabilitation package envisaged therein. Such entitlement, according to the applicants, must be extended to: (i) all major sons of the land-holders; (ii) those who had also been temporary affected; and (iii) the heirs of land holders who died prior to the date of notification. It was further contended that in the event, those who had been temporarily affected as also the major sons of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the Award and the R.R. Policy of the State. The State of Madhya Pradesh, however, allotted only 5 land pattas and 7 house plots out of 23 applicants of village Picchodi and 5 land pattas and 14 house plots pattas to the 14 oustees of village Jalsindhi. The Applicants of both the interlocutory applications are, thus, before us. ADMITTED FACT: It is neither in doubt nor in dispute that applicants herein are PAFs within the meaning of the Award of the Tribunal. It is also not in dispute that acquisition of the land took place, so far as village Jalsindhi is concerned, in terms of the provisions of the Land Acquisition Act in the year 1991 whereas in respect of village Picchodi, it took place in 2000. It is furthermore not in dispute that the applicants belonging to both villages Picchodi and Jalsindhi come within the purview of the PAFs, at the height of 95 meters to 100 meters of construction of the dam. It also stands admitted that present height of the dam is 110 meters. Indisputably, the State although intended to make a distinction between the temporary and permanent oustees but in its affidavit dated 6.5.1999 filed before this Court no such distinction wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate to Gujarat. For the remaining oustee families, Madhya Pradesh and Maharashtra shall arrange to acquire lands for rehabilitation within the respective States. (IV)(2)(ii). Madhya Pradesh and Maharashtra shall set up adequate establishments for land acquisition and rehabilitation of oustee families. Gujarat shall deposit within three months of the decision of the Tribunal Rupees ten lakhs each with Madhya Pradesh and Maharashtra in advance towards cost of establishment and rehabilitation in these States to be adjusted after actual costs are determined. Madhya Pradesh and Maharashtra shall start land acquisition proceedings for areas below RL 106.68 metres (RL+350') within six months of the decision of the Tribunal and convey the lands to Gujarat for project purposes within three years of the decision of the Tribunal. Within 18 months of the decision of the Tribunal, Gujarat shall make an advance payment of ₹ 70 lakhs to Madhya Pradesh and ₹ 100 lakhs to Maharashtra towards the compensation of land, to be adjusted after actual costs are determined. IV(2)(iv). Gujarat shall acquire and make available a year in advance of the submergence before each successive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich read as under: 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. Family (i) A family shall include husband, wife and minor children and other persons dependent on the head of the family, e.g., widowed mother, (ii) Every major son will be treated as a separate family. SUBMISSIONS: The learned counsel appearing on behalf of the applicants submitted that for the purpose of grant of benefit of rehabilitation package, no distinction can be made between temporary and permanent affected people and in this connection our attention has been drawn to the stand taken by the Respondent - State in the earlier proceedings as also the award. It was submitted that the major sons of the PAFs being included in the definition of family and treated to be a separate family, they are entitled to allotment of a separate unit in terms of the award as also the judgment of this Court. The learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pattern of rehabilitation of affected families in Sardar Sarovar Project from the following chart relied on by the Applicants: Rehabilitation of Sardar Sarovar Project Affected Families A Game of Numbers: MP's Diminishing PAF List Status of R R at Dam Height EL 95 Mts of MP PAFs Date Total Claimed as Resettled Balance Option of Source of no. of Balance information PAFs In MP In Guj. Total MP Gujarat Aug 29, 2001 5397 1182 2385 3567 1830 1378 452 Agenda of 50th Meeting of R R Sub-Group Nov 11, 2001 5379 1394 2381 3775 1603 782 821 RCNCA (CMs) meeting Dec 08, 2001 5397 1399 2418 3817 1580 1217 363 Agenda of 51st meeting of R R Sub-Group Jan 07, 2002 5397 1466 2691 4157 1240 1150 90 Minutes of 51st meeting of R R Sub-Group Feb 08, 2002 5397 1466 2691 4157 1240 1150 90 Agenda of 52nd meeting of R R Sub-Group May 14, 2002 1883 1873 10 Minutes of 53rd Meeting of R R Sub-Group June 31, 2002 1883* 967 916 1883 0 0 0 Quarterly Status Report, NCA Dec 31, 2002 1883* 967 916 1883 0 0 0 Half Yearly Status Report, NCA * The GoMP has resettled only those PAFs (i) whose agricultural land is coming under permanent submergence and (ii) whose habitation is coming under permanent or tempor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is informed that because of water level in SSP for the monsoon of 2002 the villages shown in list 1 will be affected and the oustees shown in list 2 will be affected with respect to their lands, houses and other property. These oustees will be able to make use of submergence affected property till the 31st of December 2001. After that they will have to relinquish this property; all families included in earlier notifications are also included in this notification. S.No. Name of No. of Total effect due to Effect of submergence in Details village PAFs submergence of Sardar monsoon of 2002 including Sarovar Project adult sons No. of Agricultural No. of Agricultural houses land (in ha) houses land (in ha) 1 Pichhodi 428 104 123.497 104 123.497 The names of all the 23 applicants of village Pichhodi find place in the gazette published by the State, the details whereof are as under: S.No. Name of Land Total effect due to Effect of submergence in Details PAPs and Holder/ submergence of Sardar monsoon of 2002 father's Adult son Sarovar Project name No. of Agricultural No. of Agricultural houses land (in ha) houses land (in ha) 12. Mangilal s/o Adult son - - - - - Madia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R Status of the PAFs at Sardar Sarovar Dam Height EL 95 m as on 31.12.2001 is as under: State No. of Total PAFs Balance villages PAFs resettled/ PAFs to affected allotted be agricultural resettled land/ paid cash compensation In Guj. In In M.P. Total In Guj. In Total Mah. Home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the PAFs on or before 31st December, i.e., 6 months before actual submergence (likely on the 1st of July of the next year). In terms of these stipulations, raising of the dam which would cause submergence would not be permitted unless rehabilitation programme is carried out. Even in the stipulations of the NWDT decision, which has been accepted by the State of Madhya Pradesh, no distinction was made between permanently affected and temporarily affected families. The Award does not make any distinction between permanently affected families and temporarily affected families. Had it been so, the definition of the `oustees' would not have been so worded. It is evident that in the award of the Tribunal no distinction was made between permanently affected and temporarily affected oustees. The State, as noticed hereinbefore, in its affidavit filed before this Court in the writ petition not only failed and/or neglected to raise such a contention but as pointed out in the Rejoinder Affidavit filed by the petitioners to the affidavit filed by the State that in fact the State in its affidavits filed before this Court had taken a firm stand that permanent outstees and temporary outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er stage of the proceedings on the assumption that these oustees would go to Gujarat and as such their entitlements were acknowledged, but as soon as they made it clear that they will prefer rehabilitation in the State, their rights are being denied. This attitude on the part of the State, as has been observed in the main judgment, cannot but be deprecated. Sub-Clause IV (6)(ii) of Clause XI of the Award states that no kind of submergence in the States of Madhya Pradesh and Maharashtra shall be permitted unless arrangements are made for rehabilitation of the oustees in terms of the directions contained therein. Thus, complete resettlement and rehabilitation of oustees was a condition precedent for submergence. From the following excerpts of the Report of the Narmada Control Authority (NCA) which is the highest authority in the matter of implementation of the Award, it is clear that no such distinction can be made: 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 tem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to whether they are permanently affected or temporarily affected, were entitled to the benefit of the rehabilitation package. We are not oblivious of the fact that the river valley of Narmada is shaped like an inverted cone and the area of submergence increases exponentially for each metre of height raised. We are also not unmindful of the fact that before this Court it was contended by the original writ petitioners that whole land up to 138 metres should be acquired, people immediately be resettled and all requisite studies be done upto that level before permitting the dam height to be raised. It is only in that context this Court used the expression `pari passu'. We may notice that an observation has been made by the Chairman of R R Sub-group in the meeting held on 11.4.1994 that temporary submergence even for a short period can affect the oustees badly and it is desirable to keep this in mind while rehabilitating the oustees. In the meeting held on 18.12.1998, it was observed : In the light of earlier decision by NCA on this subject, there should not be any distinction between temporary and permanent PAFs and will be pre- requisite for the purpose of further raising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was a landholder, he in his own right would be entitled to the benefit of rehabilitation scheme and, thus, for the said purpose, an expansive definition of family was not necessarily to be rendered. Furthermore, if such a meaning is attributed as has been suggested by Mr. Vaidyanathan, the definition of `family' would be to an extent would become obscure. As a major son constitutes `separate family' within the interpretation clause of `family', no meaning thereto can be given. In I.A. No. 11 of 2003, there is no dispute as regard the age of the concerned applicants. In that case, two of the landholders Athiya and Khatriya died even prior to the issuance of the notification. This Court in paragraphs 152 and 176 of the main judgment specifically referred to the entitlement of the major sons (18 years old). The major sons, therefore, cannot be denied the said benefit. A half-hearted contention was raised on behalf of the State that those who had not been granted land might not have become major on the date of notification. Such a contention had not been raised before the GRA. We at this stage cannot permit a new plea to be raised and that too without any pleading and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e GRA would be entitled to consider the matter in accordance with law and pass a suitable directions. This Court in the main judgment did not say that the oustees are to be relocated as a community. The question of rehabilitation inevitably would arise as and when they become entitled thereto. EXTENT OF LAND : It is not in dispute that the award provided that every displaced family, whose 25% or more agricultural landholding has been acquired, shall be entitled to be allotted irrigable land to the extent of land acquired subject to prescribed ceiling of the State with a minimum of two hectares of land. It is, however, not in dispute that the lands offered by NVDA, a State Forum, have been found acceptable by the applicants belonging to Village Jalsindhi. We direct the Respondents to allot such lands immediately to them. Having regard to the fact that the farm lands available at village Khajuri would be insufficient for allotment to the applicants of I.A. No.11, the matter may be considered afresh by the GRA. We agree with the opinion of the GRA that the applicants therein would not be entitled to allotment of land of their choice but the land offered to them should be i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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