JUDGEMENT
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(1.)All these appeals relate to the establishment of the
Omkareshwar Dam on the Narmada river in Madhya Pradesh. As
these appeals are inter-connected and have been filed against interim
orders passed by the High Court in the same writ petition, they have
been heard together and disposed of by a common judgment.
However, for convenience Civil Appeal Nos. 2115-2116 of 2011 are
dealt with first.
(2.)These appeals have been preferred against the judgment and
order dated 21.2.2008 passed by the High Court of Madhya Pradesh at
Jabalpur in Writ Petition No. 4457 of 2007, 'Narmada Bachao
Andolan v. State of Madhya Pradesh & Anr.', wherein the High Court
as an interim measure, has issued directions, inter-alia, for allotment
of agricultural land to the displaced persons in lieu of the land
acquired for construction of the dam in terms of the Rehabilitation
and Resettlement Policy (hereinafter called as 'R & R Policy') as
amended on 3.7.2003. The High Court direction applied even to those
oustees who had already withdrawn the compensation, if such oustees
opt for such land and refund 50% of the compensation amount
received by them. The balance cost of the allotted land would be
deposited by the allottees in 20 equal yearly installments as stipulated
in clause (5.3) of the R & R Policy, and to treat a major son of the
family whose land has been acquired as a separate family for the
purpose of allotment of agricultural land.
(3.)FACTUAL MATRIX :
Facts and circumstances giving rise to these cases are as
follows:
(A) The Narmada river starts at Amarkantak. It flows through
Madhya Pradesh for 1077 km, then forms a common boundary in
Maharashtra for 74 km (35 km with MP and 39 km with Maharashtra)
and then passes through Gujarat for 161 km before meeting the
Arabian Sea after a total length of 1312 km. The Narmada Water
Disputes Tribunal apportioned the water in the Narmada between
Madhya Pradesh, Gujarat, Maharashtra and Rajasthan, subject to
review after 45 years.
(B) The State of Madhya Pradesh, conducted a survey in 1955 for
the establishment of hydro-power projects in the Narmada basin at
different sites including Barwaha (Omkareshwar Project). In 1983,
Narmada Valley Development (Irrigation) Department (hereinafter
called NVD) was set up and further studies were conducted for the
establishment of hydro-power projects.
(C) The Omkareshwar Dam - an intra-state project for generating
520 mega watts of power, which also involved the irrigation of 1.47
lakh hectares of agricultural land, was approved by the State
Government, with an assessment that on the completion of the project,
30 villages would be submerged at the full reservoir level i.e. 196.60
mtrs.
(D) The Government of Madhya Pradesh framed a rehabilitation and
resettlement policy in 1985 (hereinafter called 'R & R Policy') for the
oustees of all the Narmada projects in the State. The said policy was
amended from time to time as is evident from the R & R Policies
dated: 9th June, 1987; 5th September, 1989; 7th June, 1991; and 27th
August 1993.
The said policy provided for the allotment of a minimum of 2
hectares of agricultural land; irrigation facilities at government cost;
grant-in-aid for small and marginal farmers and SC/ST families; and
to meet the entire cost of the allotted land. The policy further
provided that the allotment of agricultural land would be carried out
much in advance, before dam construction reached crest level. The
land required for allotment would be procured in the common area
from the farmers having holdings of more than 4 hectares of land.
The State authorities obtained environmental clearance for the
Omkareshwar project from the Ministry of Environment and Forest on
13.10.1993. The Ministry of Welfare granted clearance on
8.10.1993. The Planning Commission also granted clearance on
condition of compliance with welfare and environmental clearances
vide order dated 25.5.2001.
The Central Electricity Authority accorded techno-economic
clearance under the provisions of Electricity (Supply) Act, 1948 on
24.7.2001. The Government of India approved and granted financial
concurrence from Public Investment Board of the Planning
Commission for this project on 17.5.2002. Forest clearance was
granted on 20.8.2004 under the provisions of Section 2 of the Forest
(Conservation) Act, 1980 for the diversion of 5829 hectares of forest
lands. Therefore, there had been various statutory and non-statutory
clearances from the authorities.
(E) The R & R Policy further stood amended on 3.7.2003, to the
effect that agricultural land would be offered to the oustees "as far as
possible"; and not to those who would make application in writing to
receive compensation for their acquired land.
(F) Construction of the Omkareshwar dam began in 2002 and stood
completed in October, 2006. A large number of families had been
uprooted on construction of the dam upto its 190 mtrs. height. For the
dam site, a huge area of land had been acquired under the provisions
of the Land Acquisition Act, 1894 (hereinafter called as 'Act 1894').
The displaced persons were allegedly not offered the land under the R
& R Policy, as amended on 3.7.2003, rather compensation for their
land was deposited in their accounts.
(G) Narmada Bachao Andolan, respondent No.1 (hereinafter
referred to as 'NBA'), an action group, had been espousing the
grievances of displaced persons by filing Public Interest Litigations
(hereinafter called 'PIL') before the High Court/further to this Court
from time to time and a large number of orders had been passed by the
courts to redress the grievances of the oustees. When the decision
was taken to raise the height of the dam, NBA filed writ petition
No.4457 of 2007 before the High Court seeking a number of reliefs,
inter-alia, to stop all eviction; directions for serving of life supplies
such as drinking water and electricity; not to take any other coercive
measures, to stop closure of the radial gates of the Omkareshwar dam
above crest level of EL 179.60 M; and to stop the blocking of the
sluice gates below crest level, until all Project Affected Families
(hereinafter called 'PAFs') were rehabilitated as per the R & R
Policy. Further reliefs sought included the issuance of appropriate
directions for an assessment by the Grievance Redressal Authority
(hereinafter called 'GRA') for the Omkareshwar Project of the status
of relief and rehabilitation of the oustees affected at Full Reservoir
Level (hereinafter called 'FRL') and Back Water Level (hereinafter
called 'BWL') within a stipulated period.
(H) During the pendency of the writ petition in pursuance of the
orders passed by the High Court from time to time, a large number of
reports/interim reports were furnished by the authorities concerned.
The High Court after considering the said reports and submissions
advanced on behalf of the parties passed the impugned judgment and
order dated 21.2.2008. The High Court issued a large number of
directions as interim measures, including the direction for allotment of
land in lieu of land acquired and to treat the major sons of the family,
as independent families for the purpose of allotment of agricultural
land. Hence, these appeals.