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2011 (8) Supreme 156
SUPREME COURT OF INDIA
J.M. Panchal, Deepak Verma and Dr. B.S. Chauhan, JJ.
State of Madhya Pradesh & Anr. — Appellants
versus
Medha Patkar & Ors. — Respondents
Civil Appeal No.6229 of 2011
(Arising out of SLP(C) No.34065 of 2009)
Decided on : 2-8-2011
Facts of the Case :
A Writ petition was filed by respondents challenging acquisition of land for excavation of canals; execution, excavation and construction of canal on various grounds, inter-alia; CAD Plans had not been submitted by the State and not approved by the MoEF and there had been no compliance of PESA Act and that canal affected persons were also entitled for the full benefit of R & R Policy including allotment of land in lieu of the land acquired as per R & R policy, which had not been provided for.Said Writ petition was Allowed by High Court restraining State of Madhya Pradesh or any other statutory authority of further acquisition of land or for any excavation or any construction of canal network till the CAD Plans submitted to Government of India, MoEF were scrutinized by committee of experts and clearance was granted by said Ministry. Direction was also given to appellant-State Government to provide rehabilitation and resettlement benefits under R&R Policy for Narmada Valley Projects to canal affected persons/families of Indira Sagar and Omkareshwar projects.
2. Present appeal has been filed against said order of High Court.
Findings of the Court :
Evidence on record that CAD Plans had been submitted by authorities from time to time to ministries of Central Government .Apex Court in Narmada Bachao Andolan I made a distinction between canal affected persons and persons affected by submergence. In view ofsaid position , State of Madhya Pradesh amended R & R Policy on 1.9.2003 deleting the words “which is required for project related constructions of canal or government project colony.” Hence , in view of above, State of M.P. did not give same R & R package to canal affected persons as those affected by submergence.Since Apex Court had taken a view that canal affected persons cannot be put at par with the submergence affected persons, it was not possible for court to put canal affected persons at par with submergence affected persons. Held not permissible for High Court to take a view contrary to view taken by Apex Court .Appeal was disposed of.
JUDGMENT
Dr. B. S. Chauhan, J.
1. Leave granted.
2. This appeal has been preferred by the State of Madhya Pradesh and instrumentality of the State against the judgment and order dated 11.11.2009 in Writ Petition (C) No.6056 of 2009 of the High Court of Madhya Pradesh at Jabalpur, whereby the High Court has restrained the State of Madhya Pradesh or any other statutory authority of further acquisition of land or for any excavation or any construction of the canal network for the command areas of the Indira Sagar and Omkareshwar projects till the Command Area Development plans (hereinafter called CAD Plans) submitted to the Government of India, Ministry of Environment and Forest (hereinafter called MoEF) are scrutinized by the committee of experts and clearance is granted by the said Ministry. The appellant-State Government has further been directed to provide rehabilitation and resettlement benefits under the Rehabilitation and Resettlement Policy (hereinafter called R&R Policy) for Narmada Valley Projects to the canal affected persons/families of Indira Sagar and Omkareshwar projects and the Narmada Control Authority (hereinafter called NCA) has been directed to ensure implementation of the aforesaid directions.
3. The facts and circumstances giving rise to this appeal are:
A. That after completing the procedure prescribed for establishment of dams and irrigation projects, the project reports for Indira Sagar and Omkareshwar projects were prepared and submitted for clearance. The environmental clearance for Indira Sagar project was granted by MoEF on 24.6.1987 by an administrative order. The Planning Commission also approved investment to be made in Indira Sagar project on 6.9.1989.
B. The R & R Policy of 1989 was introduced by the State of Madhya Pradesh for the oustees of submerged area in Narmada Valley projects. Land acquisition proceedings were initiated in year 1991 for canal construction under Indira Sagar project. A comprehensive CAD plans for Omkareshwar project were sent to MoEF for clearance. Environment Impact Assessment and Environment Management Plan reports were also submitted for Omkareshwar project to MoEF which also contained the R & R plan for the affected persons of the Omkareshwar project. It provided that the persons whose land was to be acquired for establishment of canals were not to be included in R & R plans.
C. The Ministry of Welfare, Government of India accorded clearance to the R & R plan of Omkareshwar project on 8.10.1993. Similarly, by an administrative order environmental clearance for Omkareshwar project was granted by MoEF on 13.10.1993.
D. The MoEF issued statutory notification under Section 3(2) of Environment (Protection) Act, 1986 (hereinafter called the Act 1986) read with Rule 5(3) of the Environment (Protection) Rules 1986 requiring environmental clearance for development of project on 27.1.1994. The canal construction in Indira Sagar project started on 30.5.1999. The NVDD vide order dated 14.8.2000 amended the definition of “Displaced person” adding in clause 1(a) the following words:
“.....or is required for the project-related canal construction and construction of the Government Project Colony.”
The Planning Commission granted approval in respect of Omkareshwar project on 15.5.2001. The R & R policy stood materially changed vide amendment dated 1.9.2003 as from the definition of “displaced person” the words “which is required for project related construction of canals or the Government project colony” stood deleted.
The Amendment to the Rehabilitation Policy was made by the Narmada Control Board (NCB) on the recommendation of the NVDA on 2.7.2003 as per Business Rules of Narmada Control Board Part II Special Procedure for Emergency Sanction and not under the Government of Madhya Pradeh Business Rules.
E. The dam construction of Indira Sagar project stood completed in year 2005 and the High Court, in a pending litigation, permitted the State of Madhya Pradesh to raise water level of In
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