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

MADHYA PRADESH [DR. B.S. CHAUHAN, J.] between the interests of the parties. The Court has to take into consideration the pitiable condition of oustees, their poverty, inarticulateness, illiteracy, extent of backwardness, unawareness also. It \s desirable that in future the Court must view any presentation by the NBA with caution and care, insisting on proper pleadings, disclosure of full facts truly and fairly and in case it has any doubt, refuse to entertain the NBA. However, considering the interests of the oustees, it may be desirable that the Court may appoint an Amicus Curiae to present their cause, if such a contingency arises.

146Copy pinpoint146. In view of the above, we are of the considered opinion that no order is required on the IA Nos. 196-210, 211- 225 and 241-255 of 2011 filed under Section 340 of the Code of Criminai Procedure, 1973, by both the parties, as dealing with the said applications would not serve any purpose. More so, the IA Nos. 226-240 of 2011 filed for modification of the order dated 5 . 4.2011. Thus, all the said IAs stand disposed of.

147Copy pinpoint147. In view of the serious controversy raised in these appeals, this Court vide order dated 24.2.2011, requested the ewe to make a local inspection and submit its report as to whether the land measuring 284.03 hectares in these 5 villages, would be submerged temporarily or permanently or merely water locked.

148Copy pinpoint148. In pursuance of the aforesaid order, the CWC after having spot inspection submitted its report dated 22.3.2011. F The relevant part thereof reads as under: (i) Village Kothmir- .................. . "115. 53 hectare area (under reference) of this G village falls between FRL and BWL. This will come under temporary submergence when water level exceeds FRL (196.60 m)."

(ii) Village Narsinghpura- ...... ..... . H

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A Out of the total 21.58 hectare area (under reference ) of this village, 19.30 hectare falls between FRL and BWL and will come under temporary submergence when water level is between FRL (196.60 m) and BWL. • (iii) Village Dharadi- .............. . B "The 103.09 hectare area of village (under reference) falls between FRL and BWL, which will come under temporary submergence when water level exceeds FRL (196.60m)." c (iv) Village Nayapura-............ ...... ..

"The 33. 83 hectare land (under reference) of village falls between FRL and BWL which will come under temporary submergence when water level exceeds FRL (196. 60 m). • D (v) Village Guwadi-................ .. "The 10.00 hectare land (under reference) of village falls between FRL and BWL, which will come under temporary submergence when water level exceeds FRL (196.60m)."

(vi) Conclusion of the Committee: Out of the total land - subject matter of dispute ad-measuring 284. 03 hectare in the aforesaid five villages; 281. 75 hectare falls between FRL and BWL, which will come under temporary submergence due to back water effect. The remaining

2. 28 hectare area will not come under submergence due to back water levels when water levels are up to BWL.

149Copy pinpoint149. The parties were given copies of the report and asked to submit their objections, if any. In response to the said order, the parties submitted their comments/objection to the report submitted by the ewe. The State Government has submitted that the report suggested that 2.28 hectares of the area will never be

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] submerged even when water levels are upto BWL. However, A the remaining area of 281. 75 hectares falls between FRL and BWL, would be under temporary submergence due to back water effect. In such a fact-situation, the ewe guidelines of 1997 provide that MWL at the dam site during maximum flood and BWL is the corresponding flood level at maximum flood in B the pondage area. Hence, when MWL occurs at the dam site, BWL will occur simultaneously in the vicinity of the reservoir further up stream. In such a case, agricultural land affected by back water is not acquired in a dam project, as that land is submerged only temporarily during floods hardly for 2-3 days c which may occur rarely, once in a period of 1000 years. Rather the land is benefited due to silting during floods and is available for cultivation after the temporary flood recedes. The guidelines issued by the CWC had been adopted by the State that agricultural land temporarily coming under submergence 0 between FRL and BWL need not be acquired. However, houses in the temporary submergence area must be acquired. In order to fortify its stand, the State Government had quoted paragraph 6.2.3. of the guidelines for preparation of project estimates for river valley projects of CWC March 1997. Further, E State has placed reliance on Clause XI-II (2) of NWDT Award, which also provides for the same.

150Copy pinpoint150. It has further been submitted by Shri Ravi Shankar Prasad, learned senior counsel appearing for the State that all the dwelling structures which are 167 in number would be F acquired positively in terms of the R & R Policy and in spite of the fact that the agricultural land would not be acquired, the benefits provided under the R& R Policy shall be granted to all such oustees who fulfill the requirement of the provisions of clause 1.1 which defines the 'displaced person' under the R & G R Policy and such a course will be in consonance with the 'guidelines issued by the ewe.

151Copy pinpoint151. In view thereof, it has been submitted that as per the CWC guidelines, only the land covered by structures must be H

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A acquired and not the entire land. Therefore, the report of the ewe should be accepted with this understanding and clarification.

152Copy pinpoint152. On the other hand, the Narmada Bachao Andolan - the writ petitioner, has submitted that the report does not require 8 any further explanation, there are 167 houses situated on the concerned lands of these five villages which are bound to be acquired. The remaining entire land has to be acquired in view of the decision taken by the NVDA in its 144th me~ting dated 5.10.2007, wherein it was resolved that it was necessary to acquire the land in dispute and subsequent decisions taken by the parties, particularly, dated 25.3.2009 and 2.4.2009, are arbitrary, malafide and unconstitutional. Under the R & R Policy, even any land temporary submerged, is bound to be acquired. In support of such a contention, reliance has been placed on the definition of "displaced person" contained in Clause 1.1 of R & R Policy which speaks of the person whose land is likely to come under submergence whether temporarily or permanently. Further reliance has also been placed upon the judgment of this Court in Narmada Bachao Ando/an - II E (Supra) providing for the same and in view thereof, it has been submitted that the land is compulsorily to be acquired.

153Copy pinpoint153. An extract from guidelines for preparation of project estimates for river valley projects of ewe March 1997 is reproduced below:-

"Generally acquisition may be done upto FRL only. The area between FRL & MWL may be acquired only if the submerged land is fertile and the duration of submergence beyond FRL upto MWL is long enough to cause damage to crops i.e. over 15 days duration. (for acquisition of land the effect of back water need not be taken into consideration). H

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MADHYA PRADESH [DR. B.S. CHAUHAN, J.] )()()( )()()( )()()( )()()( A

All structures coming under submergence between FRL and MWL should be acquired. If the structures coming under submersion are of religious or archeological interest, provision must be made for re-establishing these 8 structures above MWL".

154Copy pinpoint154. The Clause XI - II (2) of the NWDT Award for the Sardar Sarovar Project reads as under:

, Madhya Pradesh and Maharashtra shall als_o acquire for c 1

Sardar Sarovar Project under the provision of the Land Acquisition Act 1894, all buildings with their appurtenant .land situated between FRL + 138.63 m (455') and MWL + 141.21 m (460') as also those affected by the Back water effect resulting from MWL = 141.21 m (460')." o ·155. Reason for not acquiring land between FRL and BWL (MWL at dam site):- (i) The ewe guideline 1997 and clause Xl.11(2) of. NWDTA provision mentioned above clearly states that E th'e agricultural land affected by BWL is not acquired in a dam project as a policy matter.

(ii) It will submerge only temporarily during maximum flood once in 1000 years. F

(iii) The land gets benefited due to silting during flood and will be available for cultivation after flood recedes. It becomes more fertile. (iv) The land gets only submerged temporarily in BWC due G to flood (once in 1000 years) and should not be left unused. It will be a national loss. (v) The land may get encroached if it is acquired and left without use as it is very fertile. H

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A (vi) ............................... ."

156Copy pinpoint156. In Narmada Bachao Ando/an - II (Supra), the Court has placed reliance upon the report of the Narmada Control Authority (NCA), dealing with the NWDT Award, wherein it has been mentioned as under: 8 "47. The Award, as noticed hereinbefore, contained two sub-clauses relating to the directions on the State Government for compulsory acquisition of the land by the States of Madhya Pradesh and Maharashtra under the provisions of the Land Acquisition Act. This obligation on the part of the State to acquire land is, thus, neither in doubt nor in dispute. The additional directions are that those persons whose 75 per cent or more land of a continuous holding is required to be compulsorily acquired, will have an option to compel compulsory acquisition of the entire contiguous holding; and acquisition of buildings with their appurtenant land situated between FRL + 138. 68 metres (455? and MWL + 141.21 (460? as also those affected by the backwater effect resulting from MWL + 1451.21 E metres. The submergence due to maximum water level and backwater would take place only after it reaches full height. xxx xxx xxx xxx F 50 ....... . Further it was decided as per decision in the last meeting of the Sub-group all possible arrangements for R&R should be made by the concerned State Govts. For G completing the same in all respect both in regard to oustees affected by the permanent as well as temporary submergence six months ahead from submergence. Actual allotment of land, house plot and payment of compensation etc. and not merely offer of such facilities as per the R&R package should be made in respect of all PAFs (both H

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OF MADHYA PRADESH [DR. B.S. CHAUHAN, J.] categories of affected by permanent and temporary submergence) except in the case of hardcore PAFs who refuse to accept the package and unwilling to shift. Temporary submergence even for a short period can affect the oustees badly and that it is desirable to keep this in mind while rehabilitating the oustees. n (emphasis supplied)

157Copy pinpoint157. If we read the above referred to provisions of the R&R Policy, findings in NWDT Award, project report prepared by CWC in March 1997 and observations made in Narmada C Bachao Ando/an - II (Supra) and analyse it properly, the following picture emerges: (i) In case the land/dwelling unit of the tenure holder is submerged temporarily, he is entitled for the benefit of 0 R&R Policy; (ii) In case of temporary submergence of the agricultural land between FLR and MWL. and those affected by the back water affect resulting from MWL, only the buildings with their appurtenant land would be acquired. But the E agricultural land is not to be acquired; and (iii) In case, the dwelling units are acquired because of temporary submergence, such persons shall be entitled for the benefits under R&R Policy. F

158Copy pinpoint158. We have not only considered the rival submissions made by learned counsel for the parties but in view of the fact that the matter is extremely technical, we requested the ewe to depute Mr. U.K. Ghosh, Chief Engineer (NOA- CWC), who had been the Chairman of the Committee, to render assistance G as the Court wanted certain explanation/clarification from his team, thus called them in the Chambers on 27.4.2011 and again on 5.5.2011. We discussed various aspects of the report and objections filed by the parties. They have explained the concept of BWL and Dam Overtopping as under: H

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A BWL : BWL in the upstream of a dam is formed by incoming flood while passing through the reservoir created by artificial obstruction in a river channel by construction of an weir or a dam.

Dam Overtopping : Dam overtopping implies water flow B over the dam top. Flow of water over the dam top may occur due to:

(a) Increase in water level in the reservoir higher than the top level of the dam due to an inflow volume c greater than the project design flood, due to under- estimation of the same at the time of project planning and design.

(b) Mechanical failure in reservoir operation or due to human negligence. D On the main issue as to whether the land in dispute is to be acquired or not, the relevant part of their written opinion dated 6.5.2011 reads as under:

E "As per yearwise record of maximum flood discharge at Omkareshwar dam, since 1951 up to 2003 (53 years), the flood discharge never exceeded the design spillway capacity of 69,000 cumecs. The statement of yearwise maximum floor discharge is enclosed at Annexure - I. F From the Standard Project Flood (SPF) hydrograph, as adopted for working out the backwater level in the Omkareshwar Reservoir, it is noted that duration of flood magnitude above design spillway capacity at FRL is about two days only. Therefore, during Monsoon season temporary submergence due to backwater effect above G FRL will not be more than 4 to 5 days. In respect of non-Monsoon period it is to mention that there will be daily regulated release from both Indira Sagar Dam in the upstream of Omkareshwar dam as well as from H

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

Omkareshwar dam itself for power generation and other A commitments. The reservoir level at Omkareshwar dam are likely to be maintained within FRL by suitable reservoir operation at all times during non-monsoon period.

In the present case, the disputed land ad-measuring 8 284.03 hectares between FRL and BWL comes under temporary submergence for a duration of less than 15 . days when a flood of SPF magnitude, which is 1 in 1000 years return period flood for this project impinges the reservoir at FRL. Therefore, keeping in view all the above C points given in Para 2(i) to Para 2(iv), the Committee is of the view that the agricultural land~ within FRL and BWL need not be acquired as per the guidelines for preparation of Project, Estimates for River Valley Projects prepared by Central Water Commission in March, 1997." D (Emphasis added)

' \159. Jn view of the expert opinions rendered by ewe and other materials on record, we reach the inescapable conclusion that the agricultural land of these five villages is not to be acquired as it may only be under temporary submergence for a very short period, which occurs throughout the cquntry during floods in monsoon. Such a submergence is always beneficial to agricultural produce as the land gets enriched due to silting during the flood and becomes more fertile. More so, such an · acquisition is not in the interest of the State as the land cannot be put to any use whatsoever, and there is a possibility that such land would be encroached upon by unscrupulous elements.

160Copy pinpoint160. CONCLUSIONS/RESULT: G

(i) Civil Appeal Nos. 2115-2116/2011 filed by the State of M.P. and NHDC ,.

These appeals involved two issues namely, (i) allotment' H

562. SUPREME-COURT REPORTS ~ [2011] 6 S.C.R.

A of land in lieu of land acquired; and (ii) entitlement of major son to get the allotrnent of land as a separate family. So far as the first issue is concerned, in respect of the same, we hold that in view of the provisions contained in R & R Policy, the State Authorities are under an obligation to allot the land to the e oustees "as far as possible". In case· an oustee has not accepted the compensation/SRG or has any grievance in respect of area/quality/location of land allotted or for any other entitlement, he may approach .the GRA and the GRA will adjudicate upon the issue and pass an appropriate order in c individual cases after giving an oppo.rtunity of hearing to all the parties concerned. Needless to say, the person aggrieved by the order of GRA shall be entitled to approach the High Court for appropriate relief. However, in case of private person, the application/petition would be in the name of that individual person duly supported by his affidavit.. 0 So far as the issue of entitlement of major son for allotment of land. as a separate family is concerned, our conclusion is in the negative. In other words, th.ere is no such entitlement. . .. E (ii) Civil Appeal No: 2082/2011 filed by NBA

This appeal involved three issues namely (i) entitlement of land to ttie landless labourers; (ii) applicability of NWDT Awarer in the Omkareshwar dam project; and (iii) entitlement of allotment of land to the oustees of five villages already. F submerged. Our conclusion in respect of Issue Nos. (i) & (ii) is in the negative. However, on Issue No.(iii), the oustees shall be• entitled for the relief as given to the oustees on Issue No. (i) in Civil Appeal Nos. 2115-211612011.

G (iil)Civil Appeal Nos. 2083-209712011 and 2098-2112/2011

These appeals have been preferred by the State of M.P • . and NHDC in respect of acquisition of land of five. villages, wherein the State wants to withdraw the _acquisition H proceedings. Our conclusion is that in the fact-situation of the··

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MADHYA PRADESH [DR. S.S. CHAUHAN, J.] case, the State is entitled to abandon the land acquisition A proceedings in exercise of its power under Section ~8 of the Act 1894. However, it shall not apply to 167 dwelling units on the said land. Such persons whose dwelling units are acquired shall be entitled for the benefit of R & R Policy to the extent provided therein. The State shall establish the roads etc. after s raising the height of the Bandh as proposed by the Authorities.

(iv) The IA. Nos. 196-210, 211-225, 241-255 of 2011 and 226-240 of 2011 filed by both the parties under Section 340 Cr.P.C., do not require to be dealt with in view of our C observations made in para 146 of this judgment.

All the appeals and IAs. stand disposed of accordingly. No order as to costs.

161Copy pinpoint161. We have b_een given to understand that on the 0 Narmada River, in the State of Madhya Pradesh, in all 29 major and minor projects are contemplated. Some of them have already been completed, but on account of stay order by the court/Authority some projects could not be completed. It is unfortunate that in spite of the fact that a huge amount has been E spent, yet no one is able to reap the fruits of investment. The State should take immediate steps to get the final verdict in such cases or stay vacated and start the project at the earliest.

162Copy pinpoint162. Before parting with the case, we record our deep appreciation for the assistance rendered to this Court by Shri F M.K. Mudgal, learned District Judge, Indore, and officials of the CWC, particularly Shri U.K. Ghosh, Chief Engineer (NBP), CWC, Shri M.P. Singh, Director (FCA), CWC, and Shri D.P. Singh, Director (ND&HW), CWC, New Delhi. G R.P. Appeals disposed of.