TaxTMI 
TaxTMI 
TaxTMI 
2005 (3) TMI 761
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....ion 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 rehabilitation shall be borne by the State of Gujarat. An award was made by the said Tribunal in terms of Section 5(2) read with Section 5(4) of the Inter-State Water Disputes Act, 1956 on 16.8.1978. Several references thereafter were filed by the concerned States. As regard relief and rehabilitation, the award inter alia contained mandatory provisions containing Clause XI sub-clause (IV)(6)(ii) stating that no submergence of any area would take place unless t....
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....oticed 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 notification for land acquisition were entitled to be allotted land; the State of Gujarat made a relaxation thereto so as cover all those who became major up to 1.1.1987. Before us it is contended that the State of Madhya Pradesh also extended the cut off date to the date of issuance of notification. The Court noticed that R&R Group and the Grievance Redressal Authority (GRA) having been established, a system had come into force for ensuring satisfactory resettlement and rehabilitation....
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.... 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 thereof. The Court issued inter alia, the following directions : "(2) As the Relief and Rehabilitation Subgroup has cleared the construction up to 90 metres, the same can be undertaken immediately. Further raising of the height will be only pari passu with the implementation of the relief and rehabilitation measures and on the clearance by the Relief and Rehabilitation Subgroup. The Relief and Rehabilitation Subgroup will give clearance for further construction after consulting the th....
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....NTENTIONS: 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 the original land holders are held entitled to the benefits of the rehabilitation package, the State of Madhya Pradesh be directed to allot suitable cultivable lands in their favour as the lands situated at Khajuri and measuring 13.40 hectares only would not be sufficient for that purpose. PROCEEDINGS BEFORE THE GRA: The State contended that every oustee is offered land out of the land bank developed by it as per norms set out in NWDT Award and in the event any oustee does not intend to avail the same and find....
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....he 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 was made and in fact it was emphasized that even temporary submergence even for a short period can affect the oustees badly and, thus, no distinction should be made between temporary and permanent PAFs. Clause XI of the Award indisputably pertains to the directions regarding submergence, land acquisition and resettlement and rehabilitation of displaced persons which would include both permanently and temporarily affected persons. RELEVANT CLAUSES OF THE AWARD: Clauses II(1), II(2), IV (2)(i), (IV)(2)(ii), IV(2)(iv), IV(6)(ii),....
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....sts 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 Rs. 70 lakhs to Madhya Pradesh and Rs. 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 stage, irrigable lands and house sites for rehabilitation of the oustee families from Madhya Pradesh and Maharashtra who are willing to migrate to Gujarat. Gujarat shall in the first instance offer to rehabilitate the oustees in its own territory. IV(6)(ii). In no event shall any areas in Madhya Pradesh and Maharashtra be submerged under the Sardar Sarovar unless all payment of compensation, expenses and costs as aforesaid is made for acquisition of land and properties and arrangements are made for the rehabilitation of the oustees the reform in a....
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....." 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 counsel would further contend that those applicants who were adults on the cut-off date and whose fathers have passed away are also entitled to the benefit of the rehabilitation package. It was contended that the applicants must be given a choice as regard the site of the irrigable and cultivable lands. The submission of Mr. C.S. Vaidyanathan, learned senior counsel appearing on behalf of the Respondents, on the other hand, is that the Award contemplates grant of benefits of rehabilitation package only to such persons who were affected by reason of raising of height of ....
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.... 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 temporary submergence due to a 1 in 100 year flood. (end notes are taken directly from NCA documents). 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 7913 1327 2584 3911 4002 2554 1448 Agenda of 50th Meeting of R&R Sub-Group Nov 11, 2001 7913 1587 2684 4271 3570 1902 1668 RCNCA (CMs) meeting Jan 07, 2002 7913 1670 3360 5030 2883 2693 190 Minutes of 51st meeting of R&R Sub-Group Feb 08, 2002 7913 1670 3360 5030 2883 2693 190 Agenda of 52nd meeting of R&R Sub-....
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.... 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 34. Ramesh s/o LH 1 3.569 1 3.569 - Kalu 36. Badrilal s/o LH - - - Co-sharer of 34 Klya 37. Jagan s/o LH - - - Co-sharer of 34 Kalya 38. Sagar w/o LH - - Co-sharer of 34 Kalya 39. Vediya s/o LH 1 - 1 - Co-sharer of 34 Dariyav 54. Shankar LH 1 1.154 1 1.154 - Rukhadiya 55. Sonibai LH - - - Co-sharer of 54 Rukhadiya 56. Shambu LH - 0.664 - 0.664 - Motia 216 Pratap LH - 1.056 - 1.056 - Tersingh 278. Pokhar LH 1 3.152 1 3.152 - Girwar 279. Punya LH 1 - - - - Girwar 281. Buda Banga LH 1 0.615 1 0.615 - 282. Babu Banga LH 1 - 1 - Co-sharer of 281 282. Babu Banga LH 1 - 1 - Co-sharer of 281 283....
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.... PAFs to affected allotted be agricultural &n....
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....sp; Home State M.P. 70 ....
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....e and requisite amenities were also to be provided. Further, the notices for vacation of the lands are to be given after completion of the R&R of 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....
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.... that the applicants are not entitled to be rehabilitated at this stage. It is evident that the State took a different stand at the earlier 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 t....
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....ard as also the judgment of this Court, it is beyond any cavil that the applicants herein, irrespective of the fact as 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 a....
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.... be applicable to only those major sons who were landholders in their own rights If a person 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 a....