NARMADA BACHAO ANDOLAN v. STATE OF MADHYA PRADESH & ANR.

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] under Section 18 and appeal under Section 54 of the Act 1894. A 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, B as provided under Section 50 of the Act 1894. The Award in the enquiry by the Collector is merely a decision (binding only on the Collector) as to what sum shall be tendered to the owners of the lands, and that, if a judicial ascertainment of value is desired by the owner, he can obtain it by requiring the matter c to be referred by the Collector to the Court. (See Ezra v. Secretary of State for India, (1905) 32 Ind App 93; and Santosh Kumar v. Central Warehousing Corporation & Anr., AIR 1986 SC 1164).

46Copy pinpoint46. In the instant cases, admittedly, in spite of the fact that D , there has been a consent Award under Section 11 (2) of the Act 1894, the appellants had agreed before the High Court that the oustees would be entitled to have reference under Section 18 of the Act 1894, a large number of references are pending before the courts for consideration. Thus, there is still a E possibility of enhancement of compensation, but such a course would take time. By that time there will be such a hike in the price of land that the oustees will not be able to purchase Ahe land. For lack of any experience or skill, such oustees would not be able to engage themselves in any other alternative F occupation/vocation. Thus, it would be difficult for them to survive.

4 7. The record of the case reveals that about 56% of the oustees involved in these cases are members of Scheduled G Castes and Scheduled Tribes. Land had never been offered to any of these oustees. The amount of compensation as determined under the Act 1894 had been deposited in their bank accounts. No attempt had ever been made by the appellant-State to either acquire land from other persons having H

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A a larger area of land resorting to the provisions of Act 1894 or purchase the same by agreement/negotiation for resettlement of the oustees. Only 11 % of the oustees could purchase the land of their own from other persons without any assistance from the State Authorities. The submission raised on behalf of B 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 c unsubstantiated.

48Copy pinpoint48. 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 D 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 sing e oustee made such an application. If it is so, the question remains merely academic. E 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 consideration the fact that the land should be not less than of the same quality and nature which the oustees were originally

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.]

having with them. Thi.s exercise could have been done "pari pasu" which means "equably" or "ratably" to the construction of the Dam and could have been completed much in advance of completion of the Dam to the Full Water Level.

In the process of development, the State cannot be permitted to displace tribal people, a vulnerable section of our society, suffering from poverty and ignorance, without taking appropriate remedial measures of rehabilitation. The Court is not oblivious of the fact that social and economic reasons had caused disaffection, and thus, the tribal areas are today in the grip of extremism, as the tribal youths have become easy prey to the extremists' propaganda.

49Copy pinpoint49. While dealing with I.A. No. 42086/2008 in Writ Petition No. 4457 of 2007 (PIL), the High Court on 16.3.2009 considered the grievance of the oustees that the land available with the State for allotment was not cultivable and had been encroached upon, thus, the oustees were not willing to accept the land offered to them. The Court directed the Indian Council of Agricultural Research (Bhopal) to depute a sufficient number of experts to inspect the land offered to the displaced families and to find out as to whether it was suitable for agricultural purposes and submit its report and further directed the authorities to file an affidavit as to whether the encroachment could be removed expeditiously within a period of two months. The expert committee of Indian Council of Agricultural Research F (Bhopal) had submitted the report that the land was cultivable. The matter was directed to be listed on 13.9.2009 and in the meanwhile, the GRA was directed to dispose of all applications/objections of the oustees for allotment of land in lieu of land acquired except those where the dispute related to G 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 H

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A issued by the GRA had been complied with by the State authorities.

50Copy pinpoint50. 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 8 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 C 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 D 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 decide things for himself. The additional amount made available to the PAF as SRG is not recoverable from him. The purchase of land made by the PAF is exempt from the stamp duty and registration fee.

51Copy pinpoint51. The offer of SRG is over and above the Rehabilitation G Policy. SRG enables the PAF to purchase land suitable to him at a place of his choice as he is neither willing to accept the land offered by the government nor to start the life at the new place by mortgaging the land for the loan. Under the SRG, the extra amount paid over and above the compensation is not H recoverable. Due to the advantage of free hand, the SRG is

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MADHYA PRADESH [DR. S.S. CHAUHAN, J.] well accepted by the PAFs. Registration fees and stamp duty A are also paid. As the SRG comes into operation after the PAFs showed unwillingness to accept the land from the land bank and the PAFs want complete freedom for getting land of their choice, so land for land option has not been exercised by the PAFs and instead they have preferred and accepted cash s compensation. So land for land has not been allotted to PAFs as the policy. It is, however, erroneous to say that not a single PAF of Omkareshwar Project was allotted agricultural land because the PAFs were empowered to purchase land of their choice by paying SRG. c

52Copy pinpoint52. SRG is an additional amount paid to an oustee to enable him to purchase land in the command area to the extent of his land acquired. Normally, an oustee who looses land in submergence area gets an amount determined under the Act

1894. When a project is envisaged in an area, the sale and purchase in that area decrease and the prices also get depressed. By the time, the notification under Section 4(1) of the Act 1894, is issued, the sale deeds, if any, executed in that area, do not represent the correct price. Similarly, the prices in the command area also increase as a result qf 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 Award Amount calculated calculated for equal (minus) for the land acquired from land in command oustee in submergence area as per Act 1894 area as per Act 1894 G solatium including or SRG= Award with assumption - Actual Award for the basis that land is in (minus) land in submergence command area. area H

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A 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, B 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.

53Copy pinpoint53. 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 case, either of the parties is aggrieved, it may approach the High Court for appropriate directions.

ENTITLEMENT OF MAJOR SONS FOR AGRICULTURAL LAND IN THE R & R POLICY 1993:

54Copy pinpoint54. So far as the 2nd issue is concerned, the R & R Policy provides for definition clause:

Displaced Family:

"(i) A family composed of displaced persons as defined above shall mean and include husband, wife and minor children and other persons dependent on the head of the family e.g. widowed mother, widowed sister, unmarried sister, unmarried daughter or old aged father. (ii) Every son/unmarried daughter who has become major on or before the date of notification under Section 4 of the

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] Land· Acquisition Act, will be treated as a separate A family." (Emphasis added)

55Copy pinpoint55. This Court in Narmada Bachao Ando/an-I, dealt with the issue of entitlement of major sons of oustees of the Sardar Sarovar Project and held that as it had been provided in the 8 NWDT Award, the sons who had become major one year prior to the date of issuance of the notification under Section 4 of the Act 1894, for land acquisition, had become entitled to allotment of land.

56Copy pinpoint56. In Narmada Bachao Ando/an - JI, this Court had taken note of the said observation/finding in the aforesaid case and held:

"62. Once major son comes within the purview of the expansive definition of family, it would be idle to contend that the scheme of giving "land for land" would 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 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)

57Copy pinpoint57. In the instant case, the High Court on this issue held as under:- G 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 H

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A 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 B 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 c 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 D was acquired would be enti'led 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)

58Copy pinpoint58. In view of the above, this Court has to consider as to whether the NWDT Award provided for any entitlement of major sons to allotment of agricultural land, and if not, whether the judgment in Narmada Bachao Ando/an -I could have been considered as a precedent in Narmada Bachao Ando/an -II, F and whether the High Court has rightly interpreted the terms and conditions of the R & R Policy, as the High Court has proceeded with the assumption that the R & R Policy provides that major sons of oustees i.e. the "large land owning families" and those who had been "part of the bigger family" would be entitled for G allotment of agricultural land. PRECEDENCE -Doctrine:

59Copy pinpoint59. The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact- H

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] situation of the decision on which reliance is placed, as it has A to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of B a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made In setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by c blindly placing reliance upon a decision is not proper. (Vide: Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38; Govt. of Karnataka & Ors. v. Gowramma & Ors., AIR 2008 SC 863; and State of Haryana & Anr. v. Dharam Singh & Ors. (2009) 4 sec 340). D PER INCURIAM - Doctrine:

60Copy pinpoint60. lncuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. The Courts have developed this principle in relaxation of the rule of stare decisis. E Thus, 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 F West Bengal v. Kesoram Industries Ltd. & Ors., (2004) 10 sec 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 G · ,.,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 H

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A statement caused by an apparent typographical or 1

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 8 (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 c sec 694).

61Copy pinpoint61. 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 D without application of mind or proceeded without any reason so that in such a case some part of Hie decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.

62Copy pinpoint62. Admittedly, the NWDT Award did not provide for allotment of agricultural land to the major sons oi such oustees. The States of Gujarat and Maharashtra had given concessions/ relief over and above the said Award. Thus, the Narmada Bachao Ando/an-I has been decided with presumption that such a right had been conferred upon major sons by the NWDT F Award and Narmada Bachao Ando/an-II has been decided following the said judgment and interpreting the definition of "family" contained in the R & R Policy. When the two earlier cases were being considered by the Court, it had not been brought to its notice that the NWDT Award did not provide for G such an entitlement. In such cases, the issue is further required to be considered as to whether, as we will consider the definition of the word "family" at a later stage, the mistake inadvertently committed by this Court earlier, should be perpetuated. H

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MADHYA PRADE.SH [DR. B.S. CHAUHAN, J.]

63Copy pinpoint63. The Courts are not to perpetuate an illegality, rather it A is the duty of the courts to rectify mistakes. While dealing with a similar issue, this Court in Hotel Balaji & Ors. etc. etc. v. State of A.P. & Ors. etc. etc., AIR 1993 SC 1048 observed as under. B "... To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter (A.M.Y. at page 18: 'a Judge ought to be wise enough to know that he is C fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors".

(See also Nirmal Jeet Kaur v. State of M.P. & Anr., (2004) 7 D SCC 558; and Mayuram Subramanian Srinivasan v. CBI, AIR 2006 SC 2449).

64Copy pinpoint64. In re: Sanjiv Datta, Dy. Secy., Ministry of Information & Broadcasting, (1995) 3 SCC 619, this Court observed : E

"... None is free from errors, and the judiciary does nott 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." H

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A DISCRIMINATION:

65Copy pinpoint65. 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.

66Copy pinpoint66. 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.

67Copy pinpoint67. Discrimination means an unjust, an unfair action in favour of one and against another. It involves an element of 1

intentional and purposeful differentiation and further an element of unfavourable bias; an unfair classification. Discrimination D 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 Mis Video Electronics Pvt. Ltd. & Anr. v. State of Punjab & Anr., AIR 1990 SC 820). E

68Copy pinpoint68. However, in Vishundas Hundumal & Ors. v. State of 'Madhya Pradesh & Ors., AIR 1981 SC 1636; and Eskayef Ltd. v. Collector of Central Excise, (1990) 4 SCC 680, this Court held that when discrimination is glaring, the State cannot take recourse to inadvertence in its action resulting in discrimination. • In a case where denial of equal protection is complained of and the denial flows from such action and has a direct impact on the fundamental rights of the complainant, a constructive approach to remove the discrimination by putting the complainant in the same position as others enjoying favourable treatment by inadvertence of the State authorities, is required.

69Copy pinpoint69. The High Court while passing the order had given a much wider interpretation to the R & R Policy making reference to the terms as abigger family" and the «large land owning

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] family". A

The Court while interpreting the provisions of a Statute, can neither add nor subtract a word. The legal maxim "a verbis /egis non est recedendum" means from the words of law, there must be no departure. (See: S.P. Gupta & Ors. v. Union of India & B Ors., AIR 1982 SC 149; P.K. Unni v. Nirmala Industries & Ors., AIR 1990 SC 933; and Commissioner of Income Tax, Kera/a v. Tara Agencies, (2007) 6 SCC 429).

INTERPRETATION OF STATUTE: c

70Copy pinpoint70. In Principles of Statutory Interpretation by Justice G.P. Singh (12 Edn. 2010), the learned Author has stated as under:

"In selecting out of different interpretations 'the court will o adopt that which is just, reasonable and sensible rather than that which is none of those things'. .... .. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute E purports to regulate has to be rejected and preference should be given to that construction which avoids such results." (pp. 131-132)

71Copy pinpoint71. In Directorate of Enforcement v. Deepak Mahajan, F 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 G 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. H

\ 514 SUPREME COURT REPORTS [2011) 6 S.C.R.

A 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 8 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.' c But to winch up the legislative intent, it is permissible for courts to take iRto account of the ostensible purpose and object and the real legislative intent. Otherwise, a bare mechanical interpretation of the words and application of D the legislative intent devoid of concept of purpose and object will render the legislative inane."

72Copy pinpoint72. Therefore, an interpretation having a social justice mandate is required. The statutory provision is to be read in a E 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 which will lead to absurdity and give rise to practical inconvenience or make the provision of the existing law F nugatory. The construction that results in hardship, serious inconvenience or anomaly or gives unworkable and impracticable results, should be avoided. (Vide: Corporation Bank v. Saraswati Abharansala & Anr. (2009) 1 SCC 540; G and Sonic Surgical v. National Insurance Co. Ltd., (2010) 1 sec 135).

73Copy pinpoint73. A reasonable construction agreeable to justice and reason is to be preferred to an irrational construction. The Court H

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] has to prefer a more reasonable and just interpretation for the reason that there is always a presumption against the law maker intending injustice and unreasonability/irrationality, as opposed to a literal one and which does not fit in with the scheme of the Act. In case the natural meaning leads to mischievous consequences, it must be avoided by accepting the alternative construction. (Vide: Bihar State Council of Ayurvedic and Unani Medicine v. State of Bihar, AIR 2008 SC 595; and Mahmadhusen Abdulrahim Kalota Shaikh I(. Union oflndia (2009) 2 sec 1). C· .· . . .

74Copy pinpoint74. The Court has not only to take a pragmatic view while interpreting a statutory provision, but must also consider the practical aspect of it. (Vide: Union of India v. Ranbaxy Laboratories Ltd., AIR 2008 SC 2286). D

75Copy pinpoint75. In Narashimaha Murthy v. Susheelabai, AIR 1996 SC 1826, this Court held :

"The purpose of the law is to prevent brooding sense of E injustice. It is not the words of the law but the spirit and eternal sense of it that makes the law meaningful."

76Copy pinpoint76. In Workmen of Dimakuchi Tea Estate v. Management F of Dimakuchi Tea Estate, AIR 1958 SC 353, it has been held thus:

".. the definition clause must be read in the context of the G subject matter and scheme of the Act, and consistently with the objects and other provisions of the Act."

77Copy pinpoint77. In Sheikh Gu/fan v. Sanat Kumar Ganguli, AIR 1965 H

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A SC 1839, it has been held as follows:

"19 ... 0ften 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. B 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 polrcy underlying the c statute assume relevance and become material..."

78Copy pinpoint78. 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.

79Copy pinpoint79. Thus, it is evident from the above referred law, that the F 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 G 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: z )>

80Copy pinpoint80. REHABILITATION PROVISIONS AS PER NWDT AWARD AND STATE-WISE ~ ::0 )> ~ COMPARATIVE PROVISIONS 0 )> :z:O :< )> s. Item NWDT Award Madhya Gujarat Maharashtra )> OJ -0 )> No. Pradesh 1.(a) Tenure xx xx xx xx $?~ 0 )> Holder mO (/) )> (b) Xx xx xx xx xx Iz ~o (c) Xx. xx xx xx xx Oo ;;o r Major son will 2 hec. of land 1 hec. of land to . )> (d) Major sons No· provision of above all for land be treated as to each major each unmarried OJ z categories allotment. separate family. son of all daughter and 0 :<: () (/) · of oustees They will be categories. major son of I~ entitled to cash all categories of )> ;;....i

compensation oustees with - as ~m )>Q according to cut- off date for ~,, i.i" r> ca~egory major sons and c_ .:..... to whici1 they unmarried belong. daughters.

81Copy pinpoint81. IMPLICATIONS IF IMPUGNED JUDGMENT IS UPHELD

Category of In case each of the following Categories of oustees lose only one hectare of land oustees CJ) Mr. A Mr. B Mr. C Mr. D Mr. E Mr. F c '"O (land (Losing (Single Single (E1+ (F1+F2+F3) ;:o less) less than Khatedar) {Khatedar) E2+E3) Joint m :s: 25% of Joint Khatedars m Khatedars () holding) 0 No. of major 3 3 0 3 0 F1: 3 sons c sons/ F2: 3 sons ~ daughters F3: 4 sons :::0 m Entitlement if contention of Respondent is accepted '"O 0 :::0 For Self 0 0 2 hect. 2 hect. 3@2 hect. 3@2 hect. = = 6 hect. 6 hect. ~ For Major 0 0 0 3@2 hect. 0 10@ 2 hect.= sons/ = 6 hect. 20 hect. daughters O> Total 0 0 2 hect. 8 hect. 6 hect. 26 hect. CJ)

Entitlement () . :::0

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] It is apparent that the directions of the Hon'ble High Court A 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 8 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, c some are not entitled to any land while for some it becomes an unimaginable bounty or proves to be bonanza.

82Copy pinpoint82. In case, the view taken by the High Court is upheld, it would have very serious repercussions for the reason that no 0 land had been acquired wherein a major son can independently claim compensation as a matter of right. In such an eventuality, the question of re~aining 50 per cent of the compensation could not arise. If it were allowed, jt would ~reate hostile discrimination against others like landless persons who have been found to be non-suited by the High Court in the impugned judgment. The E 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) H

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A 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 uncertainty as to whether 75% of the total land of the major son, after partition stood acquired. The plea of B discrimination is not available to such major sons of the families, whose land has been acquired for this project, as they cannot be put at par with the major sons of the oustees of the Sardar Sarovar Project. Even if the plea is tenable, such discrimination cannot be held to be conscious or intentional as c the State is willing to rectify the mistake. The State has filed an application to rectify the mistake in the judgment of 2005, as I.A. No. 37 of 2009 for clarification/modifications of the said judgment which is pending consideration.

The view expressed earlier, inadvertently, on a wrong assumption may result in great public loss and would be against larger public interest. There is no prohibition under the law on this Court to locate the error and adopt a correct approach if the Court is convinced that the error exists and its avoidance is necessary to prevent any baneful effect on the general interest of 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.

83Copy pinpoint83. 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 G 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 H comes to awarding compensation. Compensation is Awarded

p. 521 Copy page pinpoint

MADHYA PRADESH [DR. B.S. CHAUHAN, J.]

by authority of law under Article 300-A of the Constitution read A 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 8 of something lost, displaced or even otherwise a grant to secure a dignified mode of life to a person who has nothing to sustain himself. This concept, as against compensation and property under Article 300-A, brings within its fold the presence of the elements of Article 21 of the Constitution of India. Those who C 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. D

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 E 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 F a binding precedent for the purpose of the present case as it was under some mistaken belief that the Award w~s understood to have extended the said benefit to major sons also. The High Court therefore, fell into an error by proceeding to assume that a major son would be treated to be a separate family for the G purpose of allotment of land also.

84Copy pinpoint84. The rehabilitation has to be done to the extent of the displacement. The rehabilitation is compensatory in nature with a view to ensure that the oustee and his family are at least H

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A restored to the status that was existing on the date of the commencement of the proceedings under the Act 1894. There was no intention on behalf of the State to have awarded more land treating a major son to be separate unit. This would otherwise bring about an anomaly, as is evident-from the chart B that has been gainfully reproduced hereinabove. The idea of rehabilitation was, therefore, not to distribute largesse of the State that may reflect distribution totally disproportionate to the extent of the land acquired. The State has, therefore, rightly resisted this demand of the writ petitioners and, in Q_ur opinion, c for the High Court to presuppose or assume a seRarate unit for each major son far above the land acquired, was 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 D 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. E

85Copy pinpoint85. 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 F 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 G bound if in a similar situation, the other State has accorded additional facilities even over and above the policy. The definition of "displaced family" cannot be read in isolation, rather it requires to be considered taking into account the eligibility criteria for allotment of land in Clause (5) of the R & H

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MADHYA PRADESH [DR. S.S. CHAUHAN, J.]

R Policy. To that extent, the judgment of the High Court is liable A to be set aside.

CONCLUSIONS:

86Copy pinpoint86. In view of the above, the direction given by the High Court in paragraph 64 (i) of the judgment. is modified to the 8 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 C 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. D In case suitable land is available in the land bank, the same woulc;l 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. E In case the land is not available as mentioned hereir\above, the State must ensure compliance of Clause 5.4 of the R' & R Policy to the full extent in the cases of the Scheduled Castes/ Scheduled Tribes and to the extent of 2 hectares in case of other marginal farmers. In case the extent of the land acquired F is more than 8 hectares, the same shall be paid according to the provisions contained therein.

The Government must continue to search for additional land than what is already available in the land bank and to find out the means of its purchase for allotment to the oustees. The G Government should also ensure that the allocated land is not encroached upon by the unscrupulous persons.

Direction given by the High Court to allot agricultural land to major sons of the oustees in Paragraph 64 (iii) of the H

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A impugned judgment is hereby set aside.

In the instant cases, the R & R Policy or amendment thereto in 2003, has not been under challenge. There was no prayer by the respondents to quash the said amendment. Relief 8 not sought by the party cannot be granted by the Court. More so, the direction has been issued by the High Court to grant 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 C 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 D

87Copy pinpoint87. 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 lang in lieu of land acquired, in spite of the fact that the SRG had already been granted to them.

88Copy pinpoint88. 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 same are not repeated here and we proceed to decide the issues involved herein.

89Copy pinpoint89. Shri Sanjay Parekh, learned counsel appearing for the appellant, has submitted that R & R Policy does not provide for land for agricultural purposes to landless persons. However, H the Office Memorandum issued by the Ministry of Forest and

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] Environment dated 13.10.1993 granting clearance for the A 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 B 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 thatextent, the judgment and order of the High Court impugned herein, is liable to be set aside. c 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 D and Environment stood qualified by the words "as permissible" meaning thereby, the landless labourer shall be entitled to allotment of land in case it is permissible in law for the time being in force or any other policy framed by the State to that effect. They have further submitted that NWDT Award was meant only for the Sardar Sarovar Dam as a water dispute had arisen among the States sharing the water of the Narmada river · under the Award and thus the said Award has no application whatsoever so far as the Omkareshwar Dam was concerned. In view of the fact that 5 villages had already been submerged long back and the oustees thereof, had been paid compensation for their land acquired/SRG, the question of reopening the issue is not permissible. Thus, the appeal is liable to be dismissed. G We have considered the rival submissions made by learned counsel for the parties and perused the record.

90Copy pinpoint90. The Office Memorandum issued by the Ministry of Forest and Environment dated 13.10.1993 granting clearance for the Omkareshwar Dam Project with a condition, stated as H

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A under:

'(vii) The Rehabilitation Programme should be extended 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 B December, 1993."

91Copy pinpoint91. 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 C 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. D etc., shall be available not only to landless labourers, but also to major sons of such oustees induding 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 amount and 50%. to be recovered in 20 years. As the landless labourers never had any land, they are not entitled to any compensation under the Act 1894, thus, the question of allotment 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 G 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 H

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.]

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, permissible area was defined as an area which is permissible for a person to retain c under the provisions of that Act. Thus, permissible area can legitimately be defined as the area reserved under the Act. Similarly, in Municipal Committee, Patiala v. Model Town Residents Association & Ors., AIR 2007 SC 2844, this Court interpreted the phrase 'permissible classification' to mean what D is permissible in law. In Jagjit Cotton Textile Mills v. Chief Commercial Superintendent, N.R. & Ors., (1998) 5 SCC 126, while interpreting Rule 161A of the Indian Railways Conference Association Rules and Section 73 of Railways Act, 1989, construing the term "permissible carrying capacity", this Court E held that the normal carrying capacity means, it cannot exceed the upper limits prescribed under the Statute/law.

92Copy pinpoint92. The Government of Madhya Pradesh in Narmada Valley Development Project had issued its Omkareshwar Multipurpose Project, Rehabilitation and Resettlement Plan in F August, 1993, according to which landless persons had been defined as:

"1.2(a) Landless Persons:

A person, who, whether individually or jointly with members G 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 H

528 SUPREME COURT REPORTS [2011) 6 S.C.K.

A Rs.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 8 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 Rs.8,250/-, Rs.5,500/- and Rs.2,750/- in the second, third and fourth year of displacement respectively. In addition, a further sum of Rs.12,500/- shall be kept in reserve for every landless oustee family and shall 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."

93Copy pinpoint93. It has been submitted by Shri Parekh that the word 'land' mentioned in Clause 9.2 means that the government has H

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MADHYA PRADESH [DR. B._S. CHAUHAN, J.] to provide financial assistance for acquisition of suitable land A 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 and 9.1. Para 6.1 provides for a claim to the tune of Rs.11,000/- and para 9.1 deals with other grants as mentioned hereinabove. s Therefore, such an interpretation is not permissible. Had it been the intention of the Ministry of Forest and Environment to impose such a condition, the word 'permissible' would not have been used. More so, it would have asked the State Government to amend the R & R Policy accordingly. Thus, in view of above, c we do not see any force in the contentions made by the appellant. The reliefs sought by the appellant for landless labourers are not permissible.

Applicability of the Award: D

94Copy pinpoint94. Shri Sanjay Parekh, learned counsel appearing for the appellant, has submitted that under the provisions of Act 1956, a Tribunal was constituted and it had made the Award on 12.12.1979 and it provides for various reliefs to the oustees and all the benefits granted by the said Award to the oustees are applicable in case of the oustees of the Omkareshwar Dam Project. The High Court 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 H

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A 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 8 land for the Omkareshwar Project."

95Copy pinpoint95. Shri Sanjay Parekh could not point out anything from the Award which may be explained or interpreted to suggest that the terms of the Award would be applicable to any project to be taken by the State of Madhya Pradesh in the future. More so, 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. Sub-clause 111(1) thereof, fastened the total liability of compensation for land acquisition and rehabilitation etc. on the State of Gujarat, as it reads as under:

E "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."

96Copy pinpoint96. Sub-clause IV provides for provisions for rehabilitation F 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 G Maharashtra, Gujarat shall establish rehabilitation villages in Gujarat in the irrigation command of the Sardar Sarovar Project on the norms hereinafter mentioned for rehabilitation of the families who are willing to migrate to Gujarat. For oustee families who are unwilling to migrate to Gujarat, Gujarat shall H pay to Madhya Pradesh and Maharashtra the cost, charges and

p. 531 Copy page pinpoint

MADHYA PRADESH [DR. B.S. CHAUHAN, J.] expenses for establishment of such villages in their respective A terr!tories on the norms as hereinafter provided."

97Copy pinpoint97. Clause XIV thereof, provides for setting up of machinery to implement the decision of the Tribunal. Clause Vlll(3) provides for future dams etc., only to the extentthat any 8 further projects in Madhya Pradesh shall not infringe the rights of the States created under the Award.

Thus, we do not find anything in the Award which provides any benefit to the oustees of the Omkareshwar Dam or suggests that the Award is applicable in the present case also. C We do not find any reason to take a contrary view than· what has been taken by the High Court on the issue.

Entitlement to land in lieu of submerged land:

98Copy pinpoint98. In the instant case, we are concerned with the rights and entitlements of the oustees of the 5 villages which had already been submerged. In fact, the project 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 F 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: G "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."

99Copy pinpoint99. The High Court decided the issue observing that as H

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A 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 Court to direct the respondents to restore the status quo ante for the 5 villages in issue.

100Copy pinpoint100. There are claims and counter claims in regard to voluntary acceptance of compensation 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.

101Copy pinpoint101. 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 Cour. ::ind to ensure that the E 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. F 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. G Civil Appeal Nos.2083-2112 of 2011

102Copy pinpoint102. These appeals have arisen out of the impugned order dated 23.9.2009, passed by the High Court of Madhya Pradesh H at Jabalpur, in Interlocutory Application Nos. 4679 and 4804

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MADHYA PRADESH [DR. 8.S. CHAUHAN, J.] of 2009 in Writ Petition No. 4457 of 2007, by which the High · A Court has allowE;!d the said applications and directed the appellants to rehabilitate the oustees so far as the land measuring 284.03 hectares in the 5 villages, namely, i.e. Dharadi, ·Nayapura, Guwadi, Kothmir and Narsinghpura is concerned, and not to withdraw the acquisition proceedings in B respect of the said area.

103Copy pinpoint103. S/Shri R.S. Prasad and P.S. Patwalia, learned senior counsel appearing on behalf of the appellants, have submitted that the High Court has committed an error by directing the rehabilitation of the occupants of the land in dispute in the said· C 5 villages, recording a wrong finding; that as the possession of the land had been taken by the government the acquisition proceedings cannotbe reversed. The land stood vested in the State; the land indispute would stand submerged actually and, · therefore, withdrawal otthe acquisition proceedings was not D permissible; though the land· acquisition proceedit;tgs 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. E 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 liable to be set aside .. H

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104Copy pinpoint104. On the contrary, Shri Sanjay Parekh, learned counsel appearing for the respondents, has submitted that land stood vested in the State free from all encumbrances as actual physical possession of the land in dispute had been taken in December, 2007; tenure holders thereof stood evicted; not a B 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 c 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.

105Copy pinpoint105. We have considered the rival submissions made by the learned counsel for the parties and perused the record . .

106Copy pinpoint106. In the instant case, a huge chL:nk 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 of hearing fixed on 7.12.2007 and 8.12.2007. Awards F were made on 20.12.2007, 22.12.2007 and 26.12.2007. Subsequent thereto, a letter was written by the NHDC, the company on 3.8.2007 to the Member (Rehabilitation), Narmada Valley Development Authority for approval of land acquisition of these five villages, which reveals that after having surveyed G the area, there were certain practical difficulties in raising the level of the roads above BWL in respect of certain areas (land in dispute) because the level of the agricultural lands is lower than the BWL. Therefore, the land would be submerged in the back water submergence and it would require an amount of 11 H crores to raise the level of the roads upto BWL. Thus,

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] acquisition of remaining 284.03 hectares of land of these five A villages was requested to be approved for acquisition.

Ho\'.lfever, it is, evident from the letter dated 5.10.2007 of the NVDA that the land in dispute measuring 284.03 hectares in the said five villages would not be submerged, in fact, it would 8 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 Rs.550 lakhs was made. c

107Copy pinpoint107. 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. D ' .

108Copy pinpoint108. 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 E 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.

109Copy pinpoint109. The State authorities have pleaded before the High F Court by filing rejoinder affidavit that the standard practice in dam projects involving submergence in India as prescribed by Central Water Commission (CWC) that all lands and properties or the houses are acquired upto full reservoir level (FRL) and only properties or the houses are acquired above FRL upto the G 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 H

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A 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.

110Copy pinpoint110. 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 D Omkareshwar Dam. Regarding the other villages, the case of the petitioner as well as the respondents contesting before us is that rehabilitation measures are yet to be completed in these villages and that these villages were not to be submerged at 189 M on account of the closure of the radial and sluice gates of Omkareshwar dam. We are of the considered opinion that Court takes up the matter and finally decides the grievance of the petitioner with regard to rehabilitation measures. The respondents should not severe electricity and water supply and demolish pubic buildings such as schools etc. in these 25 other villages or take up any coercive step which would force the oustees to leave the villages during the pendency of the writ petition and until the oustees receive all their rehabilitation benefits. We accordingly restrain the respondents from severing electricity and water supplies and demolishing public buildings such as schools etc. in the other 25 villages and from taking any coercive step which will force the oustees to leave these villages during the pendency of the writ petition or until further orders passed by this Court." H

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.]

111Copy pinpoint111. 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".

112Copy pinpoint112. 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 frorn para 29 of the said Award.

113Copy pinpoint113. 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 be submerged temporarily and permanently below the FRL plus MWL and land affected by back water resulting from MWL plus 141.21 mtrs. (460 ft.) had already been acquired and there 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? G

114Copy pinpoint114. 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 H I

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A 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 8 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 till now be dropped as per the C provisions of law ....... The respondents, therefore, will have to provide all the rehabilitation benefits to the villagers of the 5 villages and for the purpose of rehabilitation, the order dated 2.4.2009 of the NVDA is of no consequence. The two /As stand disposed of. n

115Copy pinpoint115. The appellants herein have raised an objection that the tenure holders of the said land are still in actual physical possession and they had never been evicted. However, on behalf of the respondent i.e. Narmada Bachao Andolan, Shri Alok Agrawal, Chief Activist of the organisation, has filed the counter affidavit dated 1.2.2010 before this Court, wherein it has specifically been mentioned as under:

(a) The acquired lands/properties of these 5 villages stood already vested in the State. The State is not competent to withdraw the land acquisition proceedings.

(b) The order dated 2.4.2009 as not to acquire the land of the five villages is a nullity and void ab initio because the possession of the lands has already 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. H

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] (c) The order of the Land Acquisition Officer dated A 14.B'.2008 to Tahsildar, Bagli district Devas asking for mutation in favour of NVDA, makes it evidentthat as the land acquisition · , proceedings in question stood completed and possession of the land had_ b,een taken by the State. B (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 C 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. D

(g) The Reference Court recorded a judicial finding that the possession of concerned land/houses of these villages was taken on 8.12.2007. On this basis, the Reference Court directed the payment of interest on the compensation amount from 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)

116Copy pinpoint116. 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 H

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A 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.

117Copy pinpoint117. The question does arise as to what is the meaning of taking possession - whether it is taking of actual physical 8 possession or symbolic/paper possession which would be sufficient to meet the requirement of law.

118Copy pinpoint118. In Ba/want Narayan Bhagde v. M.D. Bhagwat & Ors., AIR 1975 SC 1767, this Court while dealing with the issue, C referred to various provisions of the Code of Civil Procedure, 1908 particularly Order XI Rules 35, 36, 96 and 97 and came to the conclusion :- "19 ....... If the property is land over which does not stand 0 any building or structure, then delivery of possession over the judgment-debtor's property beco1nes complete and effective against him the moment the delivery is effected by going upon the land, or in case of resistance, by removing the person resisting unauthorisedly. A different mode of delivery is E prescribed in the Code in the rules aforesaid in regard to a building, with which we are not concerned in this case."

119Copy pinpoint119. In State of T.N. & Anr. v. Maha/akshmi Ammal & Ors., (1996) 7 SCC 269, this Court held as under:

F "Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is a legally accepted norm".

120Copy pinpoint120. Similarly in Ba/mokand Khatri Educational & G Industrial Trust, Amritsar v. State of Punjab & Ors., (1996) 4 SCC 212, this Court held as under:- "lt 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 H

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MADHYA 'PRADESH [DR. B.S. CHAUHAN, J.]

drafting the panchnama in the presence of panchas and A taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land."

(Emphasis added)

121Copy pinpoint121. In P.K.Kalburqui v. State of Kamataka, (2005) 12 8 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 C 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:- D

"There can be no hard-and-fast rule laying down what act would be sufficient to constitute taking of possession of land. In the instant case the lands of which possession was sought to be taken were unoccupied, in the sense that there E was no crop 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."

122Copy pinpoint122. In National Thermal Power Corporation v. Mahesh F Datta & Ors., (2009) 8 sec 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 G 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 H

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A 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-a/ia 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. s issued a Notification dated 11.11.1994 under Section 48 of the Act 1894, denotifying the land. The said notification was challenged by the "persons interested" therein by filing the writ petition before the High Court. The writ petition was allowed by the High Court holding that mere symbolic possession was c enough to meet the requirement of taking possession under Section 16 of the Act 1894 and on taking such symbolic possession, the land vested in the State free from all encumbrances could not be divested.

This Court held that taking over of possession in terms of the provisions of the Act would however, mean actual possession and not symbolic possession. The Court further observed: "27. When possession is to be taken over in respect of the fallow or parli land, a mere intention to do so may not be enough ......... If the lands in question are agricultural lands, not only actual physical possession had to be taken but also they were required to be properly demarcated .... " F xx xx xx xx "44 ....... The burden of proof could be discharged only by adducing clear and cogent evidence ..... "

G (Emphasis added)

123Copy pinpoint123. In this 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 H

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MADHYA PRADE.SH [DR. B:S. CHAUHAN, J.] not create or extinguish title, nor has it any presumptive value A 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. 'sawami v. lndetKaur& Ors., AIR 1996 SC 2823; R. V.E. Venkata Cha/a Gounder v. B Arulmign Ciswesaraswamy & V. Temple & Anr., AIR 2003 SC 4548; and Suman Verma v. Union of India & Ors., (2004) 12 sec 57). Therefore, entries in the revenue record are of no assistance to determine the present controversy. C

124Copy pinpoint124. 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 forthe purpose of Sections 16 and 17 of the Act 1894. It would depend upon D 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 meet the requirement of law. However, this would not be the position in case crop is standing on the land or a _kachha or pacca structure has been raised on such land. E 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.

125Copy pinpoint125. 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 H

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A villages and submit the report as who is in actual physical possession of the same.

126Copy pinpoint126. 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 8 spot inspections and examining all the tenure holders in respect of the land in dispute in presence of Shri Alok Agrawal, Chief Activist of Narmada Bachao Andolan, (who remained present in this Court throughout the proceedings also and had been instructing the learned counsel for the said party) and recorded C the following findings of fact:

(1) So far as the land in dispute in villages Dharadi, Guadi, Kothmir, Nayapura and Narsinghpura, having an area of 284.03 hectares is concerned, the original tenure holders ' D are in actual physical possession; (2) The Bhumiswamis (tenure holder) had sown the crops on the said land;

(3) They have admitted that they had been sowing the E crops even after acquisition proceedings. (4) The tenure holders are in possession of the acquired land on the ground that they had still not been rehabilitated as per the scheme of the State Government. Therefore, F they are compelled to continue growing the crops and also using the other parts of the land for habitation. (5) They are in possession of their respective lands already acquired as they have not yet been offered the land in lieu of the land so acquired and they would make a shift from G the acquired land after compliance of the said obligation by the State. The report concludes as under:

H "Therefore, on the spot inspection and the recorded

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.]

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)

127Copy pinpoint127. 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 C 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 D dispossessed from the land in dispute by the State. Shri . Agarwal had been shown advancing legal submissions before the District Judge, Indore, justifying why the original tenure holders are still in actual/physical possession of the land. E

128Copy pinpoint128. The 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: F

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 G 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 H

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A 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 B 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 in village Khorda, Tehsil Harsud, but some other people had already c encroached upon some of that land and some of it was grazing land which was unfit for agriculture. That is why we have not taken the land that was offered to us.

03 - We have not yet been given land as under the D Rehabilitation Policy, that is why we are cultivating the acquired land. At present our crop is standing on the site. As soon as we get land under the Rehabilitation Policy, we will vacate possession of the acquired land.

04 - Yesterday, my land was inspected by the District E Judge, Indore. My crops were found to be standing at the site, which was taken on record and witnessed by me.

The record was read aloud to Signed at my instruction

F the deponent and he agreed Sd/-

that it was correct.

( M.K. Mudgal )

129Copy pinpoint129. In view of the above, this becomes crystal clear that none of the tenure holders, so far the land in dispute is concerned, has been evicted/dispossessed. All the tenure holders are enjoying the said land without any interference. The tall claims made by the respondents before the High Court were H totally false. The High Court was not justified in entertaining their

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] applications in this regard, without verifying the factual aspects. A

130Copy pinpoint130. 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 8 subject to the decision on another relevant issue regarding submergence of the land in dispute permanently or temporarily which is to be considered hereinafter.

131Copy pinpoint131. Before adverting to the next issue, it is desirable to C 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 applicanU respondent, that powers under Section 48 of the Act 1894 could o 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 argued by Shri Sanjay Parekh at great length to impress upon the Court that the tenure holders had been actually dis- E possessed long ago. This fact was 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 F 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 applicanUrespondent in the Court, in this G 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. H

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A 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 B the true picture.

132Copy pinpoint132. In such a fact-situation, the NBA not having personal interest in the case, cannot claim to be dominus litis. Thus, it ought to have acted at every stage with full sense of responsibility and sincerity. Earlier also, this Court in Narmada C Bachao Ando/an v. Union of India & Ors., (1998) 5 SCC 586, has disapproved the conduct of the Narmada Bachao Andolan and described it to be most unfortunate that it had celebrated the 4th anniversary of the stoppage of work of the dam under the interim orders of the Court. This Court found it to be an D obstruction in the way of implementing the R & R Policy. However, at that time this Court was assured by the said NBA that they "shall not directly or indirectly give any cause for concern by this Court." But, in our opinion, it has not been able to keep its solemn undertaking given to this Court. E PUBLIC INTEREST LITIGATION:

133Copy pinpoint133. It has often been stated that PIL jurisdiction should be exercised cautiously in matters that primarily require the attention of the democratic process, or the State or those F 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. G (Vide: R. and M. Trust v. Koramangla Residents Vigilance Group & Ors., AIR 2005 SC 894).

134Copy pinpoint134. Where the cause of action is genuinely in the general public interest, the court will relax the requirement of bona tides H and appoint an amicus curiae to deal with the matter and keep

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] the matter out of the power of the original applicant. [Vide: Ml A s Holicow PicturesPvt. Ltd. v. Prem Chandra Mishra & Ors., AIR 2008 SC 913; and A. Abdul Farook (supra)) ..

135Copy pinpoint135. The 'rights' of the public interest litigant in a PIL are always subordinate to the 'interests' of those for whose benefit 8 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 ends resulting in prejudice to the public weal". (vide: Sheela Barse v. Union of C India & Ors., AIR 1988 SC 2211).

136.. The standard of expectation 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. Neglig~nt use or use for oblique motives is extraneous to the P,IL 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 F SC 892; Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1; and Kusum Lata v. Union of India & Ors., (2006) 6 SCC 180).

137Copy pinpoint137. 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 G broad guidelines for entertaining petitions as Plls. This Court in State of Uttaranchal v. Balwant Singh Chaufal and Ors., (2010) 3 sec 402, has given a set of illustrative guidelines, interalia: H

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A (i) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.

(ii) The court should also ensure that there is no oblique motive behind filing the public interest litigation etc. etc. B Therefore, while dealing with the PIL, the Court has to be vigilant and it must ensure that the forum of the Court be neither abused nor used to achieve an oblique purpose.

C MISLEADING STATEMENT AMOUNTS TO CRIMINAL CONTEMPT

138Copy pinpoint138. A person seeking relief in public interest should approach the Court of Equity, not only with clean hands but also with a clean mind, clean heart and clean objective. Thus, he who 0 seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius ·Detrimento Et /njuria Fieri Locup/etiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another. The judicial process should never become an instrument of E oppression· or abuse or means to subvert justice.

139Copy pinpoint139. "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-a-vis the private interest. F 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.

140Copy pinpoint140. 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,

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] the concealed fact must be material one in the sense that had A · it not been suppressed, it would have an effect on the merit of the case/order. The legal maxim "Juri Ex lnjuria 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. v. Union of India & Ors., AIR 1993 SC 852; 8 Noorduddin v. Dr. K.L. Anand, (1995) 1 SCC 242; Ramniklal N. Bhutta & Anr. v. State of Maharashtra & 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. C Shantiranjan Sarkar, (2009) 3 SCC 90).

141Copy pinpoint141. 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 D 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 E 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. Mis. Madhya Pradesh Khair Industries & Anr., AIR 1980 SC 946; and Afzal F & Anr. v. State of Haryana & Ors., (1996) 7 SCC 397).

142Copy pinpoint142. In K.D. Sharma v. Steel Authority of India Limited & Ors., (2008) 12 SCC 481, this Court held that: "Prerogative writs. .. ... . .. are issued for doing substantial G justice. It is, therefore, ·of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an H

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A appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.· (Emphasis added)

143Copy pinpoint143. While deciding the said case this Court relied upon the leading case of R. v. General Commissioners for the purposes of the Income Tax Act for the District of Kensington, (1917) 1KB 486, wherein it had been observed as under:

c "... when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts-it says facts, not law. He must not misstate the law if he can help it-the court 1

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) F

144Copy pinpoint144. 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. G

145Copy pinpoint145. 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 H approved. However, in a PIL, the Court has to strike a balance

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