2005 Supreme(SC) 476

2005(2) Supreme 782
Supreme Court of India
(Under Article 32 of the Constitution of India)
Y.K. Sabharwal, K.G. Balakrishnan and S.B. Sinha, JJ.
Narmada Bachao Andolan —Petitioner
versus
Union of India and Ors. —Respondents
I.A.No. 10 in I.A.No. 4 and I.A. No. 11 in I.A.No. 7
In
W.P. (C) No. 328 of 2002
Decided on 15-3-2005
Counsel for the Parties :
For the Petitioner : Prashant Bhushan, Advocate.­
For the Respondents : Ashok H. Desai, T.S. Doabia, C.S. Vaidyanathan, Mukul Rohtagi, Sr. Advocates, Naresh Kumar, Aruneshwar Gupta, Addl. Advocate General for Rajasthan, Naveen Kumar Singh, Ms. Shivangi, Ms. Hemantika Wahi, Ms. Sadhana Sandhu, Ms. Varuna Bhandari Gugnani, Syed Naqvi, D.S. Mahra, P. Parmeswaran, S. Muralidhar, Somiran Sharma, Amit Sharma, S.W.A. Qadri, Ms. Anil Katiyar, Shreekant N. Terdal, Satish K. Agnihotri, Rohit K. Singh, Amit Mishra, Sanjay Parikh, Ms. Anitha Shenoy, A.N. Singh, R.B. Masodkar, S.S. Shinde, Mukesh K. Giri, Advocates.

Important point
Oustees which became affected with the raising of the Sardar Sarovar Dam at 90 metres and remained affected by further raising thereof upto 100 metres, irrespective of the fact as to whether they are permanently affected or temporarily affected, are held entitled to the benefit of rehabilitation package.­

Headnote:(i) Inter-State Water Disputes Act, 1956—Sections 5(2) rw/s 5(4), 4—Construction of a dam affecting a large number of residents of States of Madhya Pradesh, Maharashtra and Gujarat—Writ petitions filed raising several issues including relief and rehabilitation as regard the attitude on part of State of Madhya Pradesh—Petitioners case that since offers to oustees affected at the 90 metres of the height of the dam to be settled in State of Madhya Pradesh had not been made, further construction should not be permitted till one year after the ­resettlement of these project affected families at 90 metres—Allegations that the State made an attempt to wriggle out of its responsibilities to provide rehabilitation facilities to oustees by ­offering them cash compensation—A three-Judge Bench of the Supreme Court by its judgment dated 18-10-2000 disposed of the writ petition upon issuing various directions—Non implementation of directions of the Supreme Court—Petitioners filed applications for directing respondents to rehabilitate each of them in accordance with the directions of the Tribunal and the Court—Petitioners are Project Affected Families within the meaning of Award of the Tribunal—Whether definition of ‘oustees’ would mean both permanently and temporarily affected persons—(Yes)—Award does not make any distinction between permanently affected families and temporarily affected families—Applicants became affected with the raising of the dam at 90 metres and remained affected by further raising thereof upto 100 metres—They were held entitled to the benefit of ­rehabilitation package.

       Held : In terms of NWDT Award, the irrigable lands and house sites were required to be made available to the PAFs one year in advance of the submergence and requisite amenities were also to be provided. Further, the notices for vacation of the lands are to be given after completion of the R&R of the PAFs on or before 31st December, i.e., 6 months before actual submergence (likely on the 1st of July of the next year). In terms of these stipulations, raising of the dam which would cause submergence would not be permitted unless rehabilitation programme is carried out. Even in the stipulations of the NWDT decision, which has been accepted by the State of Madhya Pradesh, no distinction was made between permanently affected and temporarily affected families. The Award does not make any distinction between permanently affected families and temporarily affected families. Had it been so, the definition of the ‘oustees’ would not have been so worded. (Paras 43 & 44)

       The applicants herein became affected with the raising of the dam at 90 metres and remained affected by further raising thereof upto 100 metres and, thus, in terms of the directions contained in the award as also the judgment of this Court, it is beyond any cavil that the applicants herein, irrespective of the fact as to whether they are permanently affected or temporarily affected, were entitled to the benefit of the rehabilitation package. We are not oblivious of the fact that the river valley of Narmada is shaped like an inverted cone and the area of submergence increases exponentially for each metre of height raised. We are also not unmindful of the fact that before this Court it was contended by the original writ petitioners that whole land up to 138 metres should be acquired, people immediately be resettled and all requisite studies be done upto that level before permitting the dam height to be raised. It is only in that context this Court used the expression ‘pari passu’. (Para 54)

       The definition of family indisputably ­includes major sons. A plain reading of the said definition clearly shows that even where a major son of the land-holder did not possess land separately, he would be entitled to grant of a separate holding. The State of Gujarat, it is trite to notice, has extended this facility even to unmarried daughters. (Para 58)

       Once major son comes within the purview of 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 be to an extent would become obscure. As a major son constitutes ‘separate family’ within the interpretation clause of ‘family’, no meaning thereto can be given. (Para 63)

       Each of the 8 applicants were, thus, in reality a landholder in their own right since their fathers Athiya and Khatriya died even prior to issuance of the notification under Section 4 of the Act. They, therefore, could not have been directed to be given only a house plot on the ground that they were adult sons of the landholders. The applicants, Athia Dhoklia and Khatria Peecha, not only had asked for allotment of land in the State of Madhya Pradesh, they had filed these applications long back. It is to be noticed that Noorjiya S/o Mahariya had not been given the benefit of allotment of land although his brother Bunda and his mother Kajli had been recognized as eligible for allotment of agricultural land to the extent of 2 hectares each. There is, thus, no ground to deny the said benefit to Noorjiya. (Para 65)

       In a case of this nature we do not accept the contention raised on behalf of the applicants herein that the oustees are entitled to opt for land of their choice and the State is bound to acquire or purchase lands for the said purpose. The State has constituted a land bank. Normally, those lands which are available from the land bank should be allotted and in relation thereto, the parties may have a choice. But they cannot reject such land only unless it is shown that the lands are not irrigable or cultivable or otherwise unsuitable. In view of the dicta of this Court that the oustees would be better off at the rehabilitated place, they should be offered lands which are really cultivable or irrigable. They are also entitled to the basic civil amenities and benefits as specified in the Award. In this view of the matter, if and when necessary the GRA would be entitled to consider the matter in accordance with law and pass a suitable directions. (Para 67)

       It is not in dispute that the award ­provided that every displaced family, whose 25 or more agricultural landholding has been acquired, shall be entitled to be allotted irrigable land to the extent of land acquired subject to prescribed ceiling of the State with a minimum of two hectares of land. It is, however, not in dispute that the lands offered by NVDA, a State Forum, have been found acceptable by the applicants belonging to Village Jalsindhi. We direct the Respondents to allot such lands immediately to them. (Paras 69 and 70)

       (ii) Words and Phrases—­Expression ‘pari passu’—Meaning.

       In Black’s Law Dictionary, 5th Edn. the term “pari passu” has been defined to mean : “By an equal progress; equably, ratably; without preference”. The expression “pari passu”, therefore, has a direct nexus with raising of the height vis-a-vis implementation of relief and rehabilitation progress both of which must proceed `equably’ or `ratably’ which would mean that relief and rehabilitation measures must be undertaken as and when the height of the dam is further raised. The said expression should be construed in a meaningful manner. (Paras 52 & 53)