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2011 (5) TMI 914
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.... 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 The High Court direction applied even to those oustees who had already withdrawn the compensation, if such oustees opt for such land and refund 50% of the compensation amount received by them.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 equal yearly installments as stipulated in clause (5.3) of the R & R Policy, and to treat a major son of the family whose land has been acquired as a separate family for the purpose of allotment of agricultural land. 3. FACTUAL MATRIX : Facts and circumstances giving rise to these cases are as follows: (A) The Narmada river starts at Amarkantak. It flows through Madhya Pradesh for 1077 km, then forms a common boundary in Maharashtra for 74 km (35 km with MP and 39 km with Maharashtra) and then passes through Gujarat for 161 km before meeting the Arabian Sea after a total length of 1312 km. The Narmada Water Disputes Tribunal apportioned the water in the Narmada between Madhya Pradesh, Gujarat, Maharasht....
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.... 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 completed in October, 2006. A large number of families had been uprooted on construction of the dam upto its 190 mtrs. height. For the dam site, a huge area of land had been acquired under the provisions of the Land Acquisition Act, 1894 (hereinafter called as 'Act 1894'). The displaced persons were allegedly not offered the land under the R & R Policy, as amended on 3.7.2003, rather compensation for their land was deposited in their accounts. (G) Narmada Bachao Andolan, respondent No.1 (hereinafter referred to as `NBA'), an action group, had been espousing the grievances of displaced persons by filing Public Interest Litigations (hereinafter called `PIL') before the High Court/further to this Court from time to t....
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....s 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 family for the purpose of allotment of agricultural land, though he did not have any independent right to claim compensation for the land acquired. Land for allotment to such oustees is not available. The State authorities cannot be asked to do an impossible task. The State authorities have provided a package for their resettlement and rehabilitation, giving all facilities and financial aid. Making the allotment of land mandatory in lieu of land acquired would force the State to displace other persons to settle such oustees, which is impermissible in law. In case each major son of such oustees is treated as a separate family, acquisition of his family land would prove to be a bonanza for such persons as the tenure ....
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....d 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 itself has given effect to the said policy and directed for allotment of land for land acquired and upheld the entitlement of the major son of an oustee to an independent allotment of agricultural land. Denial of such a right would be discriminatory and thus violative of the equality clause enshrined in Article 14 of the Constitution of India. Thus, the appeals lack merit and are liable to be dismissed. 6. We have considered the rival submissions made by learned counsel for the parties and perused the record. PLEADINGS: 7. It is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings a....
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....inciples 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 Litigation and Entitlement Kendera v. State of U.P., AIR 1988 SC 2187). 11. Strict rules of pleading may not apply in PIL, however, there must be sufficient material in the petition on the basis of which Court may proceed. The PIL litigant has to lay a factual foundation for his averments on the basis of which such a person claims the reliefs. Information furnished by him should not be vague and indefinite. Proper pleadings are necessary to meet the requirements of the principles of natural justice. Even in PIL, the litigant cannot approach the Court to have a fishing or roving enquiry. He cannot claim to have a chance to establish his claim. However, the technicalities of the rules of pleading cannot be mad....
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....s 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 threshold for the reason that the writ petition suffered for want of proper pleadings and material to substantiate the averments/allegations contained therein. Even in the case of a PIL, such a course could not be available to the writ petitioners. DELAY/LACHES: 14. In the instant cases, the construction of the dam started in October 2002 and was completed in October 2006. No objection had ever been raised by NBA at any stage. The Narmada Development Authority vide order dated 28.3.2007 gave permission to National Hydraulic Development Corporation to raise the water level of the dam to 189 meters upon showing that rehabilitation of oustees of 5 villages adversely affected at 189 meters, had already been completed.....
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....mbar, (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 R & R Policy. ALTERNATIVE REMEDY: 18. While dealing with a similar issue in Narmada Bachao Andolan v. Union of India & Ors., (2005) 4 SCC 32, (hereinafter called as `Narmada Bachao Andolan-II'), this Court observed as under: "Several contentions involving factual dispute had, we may notice, not been raised before GRA. GRA had been constituted with a purpose, namely, that the matters relating to rehabilitation scheme must be addressed by it at the first instance. This Court cannot entertain applications raising grievances involving factual issues raised by the parties. GRA being headed by a former Chief Justice of the High Court would indisputably be entitled to adjudicate upon....
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.... 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 authority concerned to consider the desirability and feasibility of providing alternative land considering the facts and circumstances of each case. In certain cases, the oustees are entitled to rehabilitation. Rehabilitation is meant only for those persons who have been rendered destitute because of a loss of residence or livelihood as a consequence of land acquisition. The authorities must explore the avenues of rehabilitation by way of employment, housing, investment opportunities, and identification of alternative lands. "A blinkered vision of development, complete apathy towards those who are highly adversely affected by the development process and a cynical unconcern for the enforceme....
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....tation 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 rendered in the affirmative, then, for no reason whatsoever even an inch of land belonging to a member of Scheduled Tribe can ever be acquired. Furthermore, a distinction must be borne between a right of rehabilitation required to be provided when the land of the members of the Scheduled Tribes are acquired vis-à-vis a prohibition imposed upon the State from doing so at all." Thus, from the above referred to judgments, it is evident that acquisition of land does not violate any constitutional/fundamental right of the displaced persons. However, they are entitled to 26 resettlement and rehabilitation as per the policy framed for the oustees of the concern....
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.... 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 given under the said policy for Scheduled Castes and Scheduled Tribes families, as none of such oustees was interested in receiving compensation for agricultural land. (xii) Grant-in-aid to cover up the difference of costs of the land purchased and amount of compensation was not paid to marginal farmers having upto 2 hectares of land, as provided in the R & R Policy. 31. We have to examine whether any of the findings recorded by the High Court on the issue of entitlement for land in lieu of land acquired suffers from perversity and thus, warrants interference by this Court. 32. The relevant part of the R & R Policy, for the purpose of deter....
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....uch 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 this will not adversely affect the interests of the displaced family. Such application of the Scheduled Tribes displaced families will be accepted only after the above said certification by the Collector. (5.2) ................. (5.3) There will be no recovery of this loan for the first 2 years. Thereafter, the loan would be recovered in 20 equal yearly installments. (5.4) Grant-in-aid would be paid to cover up the gap between the amount of compensation and the cost of allotted land in the cases where the cost of allotted land is more than the amount of compensation. This grant would be payable to all displaced land owning Scheduled Caste an....
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....re 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 in the prescribed authority. It is thus discretion and not compulsion. There is no hard and fast rule in this regard as these words give a discretion to the authority concerned. Once the authority exercises its discretion, the Court should not interfere with the said discretion/decision unless it is found to be palpably arbitrary. (Vide: Iridium India Telecom Ltd. v. Motorola Inc., AIR 2005 SC 514; and High Court of Judicature for Rajasthan v. Veena Verma & Anr., AIR 2009 SC 2938). 37. Thus, it is evident that this phrase simply means that the principles are to be observed unless it is not possible to foll....
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....ces 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 facie shows that the land required to be allotted to the tribals is likely to be equal, if not better than what they had owned." (Emphasis added) 42. In State of Kerala v. Peoples' Union for Civil Liberties (Supra), this Court held as under: "121. We must also make it clear that while allotting land to the members of the Scheduled Tribes, the State cannot and must not allot them hilly or other types of lands which are not at all fit for agricultural purpose. The lands, which are to be allotted, must be similar in nature to the land possessed by the members of the Scheduled Tribes. If in the pa....
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.... 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."(Emphasis added) 45. It is a matter of common experience that the "person interested" gets the actual amount of compensation in reference under Section 18 and appeal under Section 54 of the Act 1894. Award made by the Land Acquisition Collector is merely an offer by the State through its agent. The Collector acts in dual capacity. It is in fact, for this reason that local authority/company for whom the land is acquired cannot question the Award of the Collector except on the ground of fraud, corruption or collusion, as provided under Section 50 of the Act 1894. The Award in the enquiry b....
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....s 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. Undoubtedly, the acquisition of land and displacing other persons for resettling these oustees could have a chain reaction and the remedy/cure might have been worse than the disease itself and could further give rise to the question as to whether such an action was permissible in law. The State authorities ought to have assisted the oustees in purchasing the land of their choice from other agriculturists and met the difference of cost, if any, over and above the amount of compensation and the cost of land so purchased. While determining such issues, the State authorities could take into....
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....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 his choice. This scheme has come to be known as SRG or Special Rehabilitation Package (SRP). The rate of the irrigated land in the nearest command area is worked out on the basis of sale deeds and the cost of land going under submergence is calculated. 30% of this amount is again added to this cost and a sum is worked out which is known as the determined value. Difference between the determined value and compensation already paid is called SRG and is paid to the PAF. The problems inherent in Government purchase are totally eliminated and the PAF is fully empowered and competent to deci....
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....ssumption - 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 voluntarily accepted SRG and withdrawn the amount and they stand fully satisfied. In absence of appropriate pleadings and evidence on record, it is not possible for this Court to adjudicate upon the individual claims or issue a direction of sweeping nature. Thus, if an oustee feels aggrieved of what he has received, he may approach the GRA. In case the GRA after adjudication of facts, comes to the conclusion that a particular oustee has not been granted the relief, he is entitled for; the GRA itself would grant the appropriate relief taking into account the provisions of R & R Policy. In....
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....e, 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. Similarly, while calculating the extent of land to be allotted to the separated family of such major son, the share of the major son in the land may be taken into consideration.............we hold that every adult son and his family who was part of the bigger family from whom land was acquired would be entitled to allotment of agricultural land in accordance with paras 3 and 5 of the R&R Policy of 1993 for the Omkareshwar Dam project." (Emphasis added) 58. In view of the above, this Court has to consider as to whether the NWDT Award provided for any entitlement of major ....
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....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 Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors., (2011) 1 SCC 694). 61. Thus, "per incuriam" are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the Court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. 62. Admittedly, the....
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....iscussions 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 necessarily fall within the ambit of Article 14 of the Constitution. 67. Discrimination means an unjust, an unfair action in favour of one and against another. It involves an element of intentional and purposeful differentiation and further an element of unfavourable bias; an unfair classification. Discrimination under Article 14 of the Constitution must be conscious and not accidental discrimination that arises from oversight which the State is ready to rectify. (Vide: Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123; and ....
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....ely 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 object and the real legislative intent. Otherwise, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the legislative inane." 72. Therefore, an interpretation having a social justice mandate is required. The statutory provision is to be read in a manner so as to do justice to all the parties. Any construction leading to confusion and absurdity must be avoided. The Court has to find out the legislative intent and eschew the construction....
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....ome 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 it a construction agreeable to reason and justice to all parties concerned, avoiding injustice, irrationality and mischievous consequences. The interpretation so made must not produce unworkable and impracticable results or cause unnecessary hardship, serious inconvenience or anomaly. The court also has to keep in mind the object of the legislation. INSTANT CASE: 80. REHABILITATION PROVISIONS AS PER NWDT AWARD AND STATE-WISE COMPARATIVE PROVISIONS S.No. Item NWDT Award Madhya Pradesh ....
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....en found to be non-suited by the High Court in the impugned judgment. The High Court has added words like "larger land owning family" and "bigger family" to justify the relief given to major sons even though such terms do not appear in the R & R Policy or either of the judgments given by this Court earlier. The charts hereinabove make it crystal clear that there was no provision for allotment of land to major sons in the NWDT Award. Obviously, it has wrongly been mentioned in the earlier judgments of this Court by inadvertence. This requires correction as such an error cannot be perpetuated. The claims of the respondents, if accepted, and the High Court judgment if upheld, would lead to unwarranted results. For some of the families having a large number of major sons, it would lead to a level of unjust enrichment that could never have been envisaged by the Government of Madhya Pradesh. The view taken by the High Court gives rise to pre-supposition (a fiction) of partition of agricultural land amongst the tenure-holder and his major sons. Such a concept would defeat the right of minor sons for partition or claiming the share in the agricultural land and also lead to uncertaint....
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....esence of the elements of Article 21 of the Constitution of India. Those who have been rendered destitute, have to be assured a permanent source of basic livelihood to sustain themselves. This becomes necessary for the State when it relates to the rehabilitation of the already depressed classes like Scheduled Castes, Scheduled Tribes and marginal farmers in order to meet the requirements of social justice. As noted above, benefit given to a major son was not within the terms of the Award. It was rather a concession given by the States who were parties to the NWDT Award. The said Award, therefore, as understood in the previous decisions was not at all applicable for the purpose of extending any such grant of benefit to a major son. The concession given by the respective States after the Award was delivered during the course of subsequent negotiations therefore, could not be a part of the Award. The aforesaid decisions, therefore, would not be a binding precedent for the purpose of the present case as it was under some mistaken belief that the Award was understood to have extended the said benefit to major sons also. The High Court therefore, fell into an error by proceeding to....
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....tment of land in Clause (5) of the R & R Policy. To that extent, the judgment of the High Court is liable to be set aside. CONCLUSIONS: 86. In view of the above, the direction given by the High Court in paragraph 64 (i) of the judgment, is modified to the extent that the displaced families who have not withdrawn SRG benefits/ compensation voluntarily and submit applications for allotment of land before the Authority concerned, shall be entitled to the allotment of agricultural land "as far as possible" in terms of the R & R Policy, and for that purpose, the appellants must make some government or private land available for allotment to such oustees if they opt for such land and agree to ensure compliance with other terms and conditions stipulated therein. In case suitable land is available in the land bank, the same would be offered to such oustees. In case, dispute of suitability of land is raised, it would be adjudicated upon and determined by the GRA. The authorities must render all possible assistance to the oustees to purchase the land by negotiations. In case the land is not available as mentioned hereinabove, the State must ensure compliance of Clause 5.4 of the R & R ....
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....R Policy does not provide for land for agricultural purposes to landless persons. However, the Office Memorandum issued by the Ministry of Forest and Environment dated 13.10.1993 granting clearance for the Omkareshwar Dam provided for allotment of land to landless labourers also. The NWDT Award is applicable in the case of the Omkareshwar Dam also for providing the resettlement and rehabilitation of all kinds of oustees of the five villages, whose land had already been submerged in view of the orders of the Court passed, from time to time, though paid compensation under the Act 1894/SRG, are also entitled for allotment of agricultural land in terms of R & R Policy. Hence, to that extent, the judgment and order of the High Court impugned herein, is liable to be set aside. On the contrary, the appeal had been vehemently opposed by S/Shri Ravi Shankar Prasad and P.S. Patwalia, learned Senior counsel appearing for the respondents contending that R & R Policy does not provide for allotment of land to landless persons. More so, the clearance given by the Ministry of Forest and Environment stood qualified by the words "as permissible" meaning thereby, the landless labourer shall be ent....
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....otment of land to them would not arise. The R & R Policy itself provides that such persons are entitled to get Rs. 49,300/- to buy productive employment creating assets etc., and such money can also be used for acquiring land. Such terms cannot be interpreted to mean that the landless labourers become entitled to allotment of land for agricultural purpose to the extent of 2 hectares. The policy is to be read as a whole, as it is not permissible for a party to pick up one word or phrase or one sentence and claim relief on the basis of the same. In case, the major sons, as we have already held hereinafter, are not entitled to allotment of agricultural land, the question of landless labourers being entitled to the same does not arise. More so, the words `as permissible' cannot be given a complete go-bye. In Gurbax Singh v. State of Punjab & Ors., AIR 1967 SC 502, this Court while interpreting the provisions of Punjab Security of Land Tenures Act, 1953, interpreted the words `permissible area' while determining the surplus area and held that permissible area means that the land owner is entitled to reserve land not exceeding the said area and the balance remains surplus area. Therefore....
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....all be made available for executing an independent viable scheme for earning livelihood or for purchase of productive assets. The above support amounts will be 75%, 50% and 25% respectively of the poverty line and the amount to be kept in reserve is also linked with the poverty line. If the scale of the poverty line is revised, the amount of special support amount and the reserve shall also be proportionately increased accordingly. For other landless special financial assistance of Rs. 19,500/- will be given for the purpose of productive assets. 9.2 Amount to be paid to the landless displaced families shown in Para 6.1 and 9.1 will be credited to a special fund by the NVDA and can be made available to the oustees for acquisition of a suitable productive asset, including land, in one or more installments as required." 93. It has been submitted by Shri Parekh that the word `land' mentioned in Clause 9.2 means that the government has to provide financial assistance for acquisition of suitable land in one or more installments, as required. Such an interpretation is not permissible for the simple reason that the area mentioned in Clause 9.2 is subject to the provisions of paras 6.1 a....
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....o, the Award itself provides for distribution of water among the States and to regulate the amount of water distributed by the Tribunal. Clause 11 thereof, dealt with the directions regarding acquisition of submerged land and rehabilitation of persons displaced by the Sardar Sarovar Dam. Subclause III(1) thereof, fastened the total liability of compensation for land acquisition and rehabilitation etc. on the State of Gujarat, as it reads as under: "Gujarat shall pay to Madhya Pradesh and Maharashtra all costs including compensation, charges and expenses incurred by them for or in respect of the compulsory acquisition of lands required to be acquired as aforesaid." 96. Sub-clause IV provides for provisions for rehabilitation and it reads as under: "IV(1) : According to the present estimates the number of oustee families would be 6147 spread over 158 villages in Madhya Pradesh, 456 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....
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....n amount/SRG by the oustees of those 5 villages. S/Shri R.S. Prasad and P.S. Patwalia, learned senior counsel appearing for the respondents, have relied upon the report of GRA dated 28.4.2007 to show that all those persons have accepted the benefit of SRG and nothing remains to be adjudicated upon. 101. The record does not contain sufficient material to adjudicate upon the factual aspects involved herein. The GRA is the best forum to decide the claims of such persons. However, in view of the settled legal proposition that no person should suffer from an act of the Court and to ensure that the oustees of the 5 villages which have already been submerged under the orders of the Courts, do not face hostile discrimination at the hands of the authorities; they shall be entitled to the relief to which the other oustees are entitled in Civil Appeal Nos. 2115-2116 of 2011. In case, any of the oustees of these 5 villages is not satisfied with what he has been Awarded by the State Authorities and he approaches the GRA in his personal name and establishes his case, he would be entitled to the relief granted by us in Civil Appeal Nos. 2115-2116 of 2011. Civil Appeal Nos.2083--2112 of 2011 ....
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....mbrances as actual physical possession of the land in dispute had been taken in December, 2007; tenure holders thereof stood evicted; not a single tenure holder is in possession of its holdings today; mutation entries had been made in the revenue records; Award had been made by the Land Acquisition Collector; money had been deposited in the treasury by the appellant, as it was not accepted by the oustees for the reason that they wanted rehabilitation rather than compensation or SRG, some people had got the amount of compensation enhanced by filing references under Section 18 of the Act 1894. Hence, the question of denotifying the said land under Section 48 of the Act 1894, at this stage does not arise. The appeals are devoid of any merit and are liable to be dismissed. 105. We have considered the rival submissions made by the learned counsel for the parties and perused the record. 106. In the instant case, a huge chunk of land was notified under Section 4 of the Act 1894, in these five villages on 9.11.2007 and 10.11.2007. Section 6 declarations were issued on 20.11.2007, 22.11.2007 and 23.11.2007. Notices under Section 9 were issued on 22.11.2007 and 23.11.2007 and the date ....
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....ses are acquired above FRL upto the Back Water Level (BWL). The lands above FRL will no doubt, be under water upto BWL for a few hours during floods due to back water and the lands will be benefited due to silting during that period. The land which remains temporarily under water above FRL and upto BWL is not acquired as after a few hours the backwater recedes and the land is available for normal agricultural purposes. The lands about 5 to 10 feet below FRL should also not be acquired as these lands are likely to come out of water by 15th December every year as the water is gradually used from the dam for irrigation and/or power generation. Presently the practice is that the land which remains submerged under water temporarily is generally given on pattas to farmers as it is fit for agricultural purpose. 110. The order of the High Court dated 22.6.2007 in the interim application filed by the respondents reads as under: "....The consequence is that the five villages namely Gunjari, Paladi, Sailani, Bakhatgarh and Rampura could be affected by the submergence at 189 M and its back water on account of the closure of the radial and sluice gates of Omkareshwar Dam. Regardi....
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....e is no dispute in respect of the same. The dispute remains only in respect of 284.03 hectares of land in these five villages, wherein BWL in exceptional floods etc., may make the said land water locked though it may not be submerged permanently. Whether submergence temporarily for a very short period in an exceptional flood situation, warrants acquisition of the land in dispute? 114. The High Court while dealing with the said applications did not deal with the issue specifically as to whether the possession of the land has actually been taken or even symbolic possession has been taken by the State; as to whether the persons interested have been evicted from the said land; or they have voluntarily abandoned their possession; or they are still in physical possession of the land; or as to whether after being evicted they had illegally encroached upon the land in dispute. A direction has been issued observing as under: "The lands in these 5 villages of the oustees were acquired by notifications issued under the Land Acquisition Act, and the NVDA has now passed an order on 2.4.2009 saying that the land/property of these 5 villages shall not be acquired and the action taken til....
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....rom the recorded date of possession, i.e. 8.12.2007 upto the date of payment @ 9% p.a. for one year and 15% p.a. after one year. (h) The oustees of the five villages had filed a large number of affidavits before the authorities/courts concerned stating that possession of their lands/properties acquired had been taken in December 2007. (Emphasis added) 116. There are claims and counter claims regarding "taking possession of the land". It is submitted on behalf of the appellants that symbolic possession in the facts and circumstances of the case does not meet the requirement of law and, therefore, the State has a right to withdraw the acquisition proceedings. On the contrary, learned counsel appearing for the respondents would submit that taking of actual physical possession of the land is not necessary and taking symbolic possession is enough. More so, such a submission has become merely academic, as the oustees are not in actual physical possession of the land in dispute. 117. The question does arise as to what is the meaning of taking possession - whether it is taking of actual physical possession or symbolic/paper possession which would be sufficient to meet the requirem....
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....p or structure standing thereon. In such a case only symbolic possession could be taken... such possession would amount to vesting the land in the Government." 122. In National Thermal Power Corporation v. Mahesh Datta & Ors., (2009) 8 SCC 339, after resorting to the urgency clauses under Section 17 of the Act 1894, a possession certificate had been issued on behalf of the Collector, Ghaziabad on 16.11.1984 making it evident that possession of lands in question therein, had been taken. After making of the Award under Section 11 in some cases, references under Section 18 of the Act 1894 had also been decided by the District Judge, Ghaziabad, vide order dated 12.10.1993 and persons aggrieved approached the Allahabad High Court for enhancement of compensation. It was at this stage that the NTPC Ltd. realized that it would not be possible for certain reasons for it to have the power plant on the land under acquisition and site thereof should be shifted. Thus, inter-alia on the premise that possession of the entire land notified under Section 4 of the Act 1894 had not been taken, the State of U.P. issued a Notification dated 11.11.1994 under Section 48 of the Act 1894, denotifying....
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....aised on such land. In that case, actual physical possession is required to be taken. There may be a case where the acquiring authority is in possession of the land, as the same has already been requisitioned under any law or the property is in possession of a tenant, in such a case symbolic possession qua the tenure holder would be sufficient. 125. In the instant case, in view of the fact that land in dispute is an agricultural land and has 167 dwelling houses, law in fact requires taking over the actual physical possession. The respondent no. 1 has asserted that the tenure holders are not in possession of the said land. We considered it proper to appoint a Commissioner and to have his report. Thus, vide order dated 24.2.2011, this Court requested the District Judge, Indore to have an inspection of the lands in dispute in five villages and submit the report as who is in actual physical possession of the same. 126. In pursuance of our direction dated 24.2.2011, Shri M.K. Mudgal, learned District and Sessions Judge, Indore (M.P.) has submitted a detailed report after having conducted spot inspections and examining all the tenure holders in respect of the land in dispute in pre....
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.... District Judge, Indore, has recorded the statements of all the tenure holders. For example, we quote the statement of one Shri Devi Singh S/o Pahar Singh r/o Village: Nayapura, Post: Ratanpur, Tehsil: Bagli, District: Devas, Madhya Pradesh. The same reads as under: 01 - My land is in Village Nayapura. The land is in Shamlati, its area is approximately twenty acres. The said land is affected by the Omkareshwar Dam Project. On 8th December, 2007, the then Land Acquisition Officer, Shri Chaturvedi came to Village Nayapura, gathered the farmers together and informed them alongwith me that the land no longer belongs to any of us and it has now become the State Government's land and the possession of the said land was with the State. At that time, the land was vacant. 02- From that day onward, the Government has not been collecting land revenue for the said land and the concerned society has stopped extending the facilities of providing seeds and fertilizers. I alongwith other farmers have submitted an affidavit in this regard in the High Court at Jabalpur. Under the Resettlement & Rehabilitation Scheme, we were supposed to get land in lieu of land acquired. We had been shown land....
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....s denied by the State. It was only after considering the rival submissions on behalf of the parties that this Court thought it fit and appropriate to have a spot inspection report and then the District Judge, Indore, was asked to make a local inspection and submit the report. The report has been made after making an inspection of the area and recording statements of the tenure holders in presence of Shri Alok Agrawal, Chief activist of NBA and thus, we accept the same. It is evident from the said report that statements made by the said applicant/respondent in the Court, in this regard are factually incorrect and false. The Court has been entertaining this petition under the bona fide belief that NBA was espousing the grievance of inarticulate and illiterate poor farmers, with all sincerity and thus, would not make any misleading statement. However, our belief stands fully belied. Applicant/respondent made pleadings and advanced arguments without any basis only to secure unwarranted benefits to those tenure holders. In the instant case it stands discredited totally in the eyes of this Court. This Court had been a little careful and cautious in this regard, which has exposed the true....
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....n of civic responsibility required of a petitioner in a PIL is higher than that of an applicant who strives to realise personal ends. The courts expect a public interest litigant to discharge high standards of responsibility. Negligent use or use for oblique motives is extraneous to the PIL process for were the litigant to act for other oblique considerations, the application will be rejected at the threshold. Measuring the 'seriousness' of the PIL petitioner and to see whether she/he is actually a 'champion' of the cause of the individual or the group being represented, is the responsibility of the Court, to ensure that the party's procedural behaviour remains that of an adequate 'champion' of the public cause. (Vide: The Janata Dal v. H.S. Chowdhary & Ors., AIR 1993 SC 892; Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1; and Kusum Lata v. Union of India & Ors., (2006) 6 SCC 180). 137. The constitutional courts have time and again reiterated that abuse of the noble concept of PIL is increasing day-by-day and to curb this abuse there should be explicit and broad guidelines for entertaining petitions as PILs. This Court in State of Uttaranchal v. Balwant Singh Chaufal and Ors....
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....tra & Ors., AIR 1997 SC 1236; Sabia Khan & Ors. v. State of U.P. & Ors., (1999) 1 SCC 271; S.J.S. Business Enterprises (P) Ltd. v. State of Bihar & Ors., (2004) 7 SCC 166; and Union of India & Ors. v. Shantiranjan Sarkar, (2009) 3 SCC 90). 141. It is a settled proposition of law that a false statement made in the Court or in the pleadings, intentionally to mislead the Court and obtain a favourable order, amounts to criminal contempt, as it tends to impede the administration of justice. It adversely affects the interest of the public in the administration of justice. Every party is under a legal obligation to make truthful statements before the Court, for the reason that causing an obstruction in the due course of justice "undermines and obstructs the very flow of the unsoiled stream of justice, which has to be kept clear and pure, and no one can be permitted to take liberties with it by soiling its purity". (Vide: Naraindas v. Government of Madhya Pradesh & Ors., AIR 1974 SC 1252; The Advocate General, State of Bihar v. M/s. Madhya Pradesh Khair Industries & Anr., AIR 1980 SC 946; and Afzal & Anr. v. State of Haryana & Ors., (1996) 7 SCC 397). 142. In K.D. Sharma v. Steel Aut....
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....ustees, their poverty, inarticulateness, illiteracy, extent of backwardness, unawareness also. It is desirable that in future the Court must view any presentation by the NBA with caution and care, insisting on proper pleadings, disclosure of full facts truly and fairly and in case it has any doubt, refuse to entertain the NBA. However, considering the interests of the oustees, it may be desirable that the Court may appoint an Amicus Curiae to present their cause, if such a contingency arises. 146. In view of the above, we are of the considered opinion that no order is required on the IA Nos. 196-210, 211-225 and 241-255 of 2011 filed under Section 340 of the Code of Criminal Procedure, 1973, by both the parties, as dealing with the said applications would not serve any purpose. More so, the IA Nos. 226-240 of 2011 filed for modification of the order dated 5.4.2011. Thus, all the said IAs stand disposed of. 147. In view of the serious controversy raised in these appeals, this Court vide order dated 24.2.2011, requested the CWC to make a local inspection and submit its report as to whether the land measuring 284.03 hectares in these 5 villages, would be submerged temporarily or....
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....e dam site, BWL will occur simultaneously in the vicinity of the reservoir further up stream. In such a case, agricultural land affected by back water is not acquired in a dam project, as that land is submerged only temporarily during floods hardly for 2-3 days which may occur rarely, once in a period of 1000 years. Rather the land is benefited due to silting during floods and is available for cultivation after the temporary flood recedes. The guidelines issued by the CWC had been adopted by the State that agricultural land temporarily coming under submergence between FRL and BWL need not be acquired. However, houses in the temporary submergence area must be acquired. In order to fortify its stand, the State Government had quoted paragraph 6.2.3. of the guidelines for preparation of project estimates for river valley projects of CWC March 1997. Further, State has placed reliance on Clause XI-II (2) of NWDT Award, which also provides for the same. 150. It has further been submitted by Shri Ravi Shankar Prasad, learned senior counsel appearing for the State that all the dwelling structures which are 167 in number would be acquired positively in terms of the R & R Policy and in spi....
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.... or archeological interest, provision must be made for re-establishing these structures above MWL". 154. The Clause XI - II (2) of the NWDT Award for the Sardar Sarovar Project reads as under: "Madhya Pradesh and Maharashtra shall also acquire for Sardar Sarovar Project under the provision of the Land Acquisition Act 1894, all buildings with their appurtenant land situated between FRL + 138.63 m (455') and MWL + 141.21 m (460') as also those affected by the Back water effect resulting from MWL = 141.21 m (460')." 155. Reason for not acquiring land between FRL and BWL (MWL at dam site):- (i) The CWC guideline 1997 and clause XI.II(2) of NWDTA provision mentioned above clearly states that the agricultural land affected by BWL is not acquired in a dam project as a policy matter. (ii) It will submerge only temporarily during maximum flood once in 1000 years. (iii) The land gets benefited due to silting during flood and will be available for cultivation after flood recedes. It becomes more fertile. (iv) The land gets only submerged temporarily in BWC due to flood (once in 1000 years) and should not be left unused. It will be a national loss. (v) The land may get ....
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....holder is submerged temporarily, he is entitled for the benefit of R&R Policy; (ii) In case of temporary submergence of the agricultural land between FLR and MWL and those affected by the back water affect resulting from MWL, only the buildings with their appurtenant land would be acquired. But the agricultural land is not to be acquired; and (iii) In case, the dwelling units are acquired because of temporary submergence, such persons shall be entitled for the benefits under R&R Policy. 158. We have not only considered the rival submissions made by learned counsel for the parties but in view of the fact that the matter is extremely technical, we requested the CWC to depute Mr. U.K. Ghosh, Chief Engineer (NDA - CWC), who had been the Chairman of the Committee, to render assistance as the Court wanted certain explanation/clarification from his team, thus called them in the Chambers on 27.4.2011 and again on 5.5.2011. We discussed various aspects of the report and objections filed by the parties. They have explained the concept of BWL and Dam Overtopping as under: BWL : BWL in the upstream of a dam is formed by incoming flood while passing through the reservoir created by art....
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.... that the agricultural land of these five villages is not to be acquired as it may only be under temporary submergence for a very short period, which occurs throughout the country during floods in monsoon. Such a submergence is always beneficial to agricultural produce as the land gets enriched due to silting during the flood and becomes more fertile. More so, such an acquisition is not in the interest of the State as the land cannot be put to any use whatsoever, and there is a possibility that such land would be encroached upon by unscrupulous elements. 160. CONCLUSIONS/RESULT: (i) C ivil Appeal Nos. 2115-2116/2011 filed by the State of M.P. and NHDC These appeals involved two issues namely, (i) allotment of land in lieu of land acquired; and (ii) entitlement of major son to get the allotment of land as a separate family. So far as the first issue is concerned, in respect of the same, we hold that in view of the provisions contained in R & R Policy, the State Authorities are under an obligation to allot the land to the oustees "as far as possible". In case an oustee has not accepted the compensation/SRG or has any grievance in respect of area/quality/location of land allo....