# 12 S.C.R. 84 NARMADA BACHAO ANDOLAN v. STATE OF MADHYA PRADESH

- **Citation:** [2011] 12 S.C.R. 84
- **Court:** Supreme Court of India
- **Decided:** 2011-07-26
- **Case number:** Civil Appeal No.3726 of 2011
- **Bench:** J.M. Panchal, Deepak Verma, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/12-s-c-r-84-narmada-bachao-andolan-v-state-of-madhya-pradesh-27243
- **Pages:** 31

## Headnote

Land Acquisition - Construction of dam in the State of
C M.P. - Re-settlement and Rehabilitation policy for oustees -
Entitlement of oustee to claim land or compensation in lieu
of the land acquired - Order dated 7-6-1991 passed by
Narmada Valley Development Department (NVDD)
amending Clause 5. 1 of the Re-settlement and Rehabilitation
D Policy, 1991 (R & R Policy) - Challenge to - Held: The
chronological development of amendment of R & R Policy
reveals that Clause 3 of the R & R Policy provided for
entitlement of oustees to get land in lieu of the land acquired
- Clause 5 prescribed only the procel'ure for allotment of land
E under Clause 3 of the R & R Policy - Amendment of R & R
Policy on 7-6-1991 only facilitated those oustees who were not
willing to take the land in lieu of the land acquired - Such
amendment was brought on demand of the oustees as an
alternative - However, it did not take away the right of the
F oustees to claim land in lieu of the land acquired, for the
simple reason that there was no amendment in year 1991 to
Clause 3.2 of the R & R Policy and amendment to the said
Clause 3.2 incorporated on 27.4.2002 is not under challenge
-
The amendment under challenge simply facilitated an
oustee to claim compensation instead of land - This may be
G for the reason that oustee may be willing to settle in another
State or in urban area or want to adopt any other vocation!
profession or want to start any other business - However, it
did not take away the right of any oustee to claim land in lieu
of the land acquired.
H
84
NARMADA BACHAO ANDOLAN v. STATE OF
85
MADHYA PRADESH.
Land acquisition - Construction of dam in the State of A
M.P. - Re-settte_ment and Rehabilitation policy for oustees -
Entitlement of landless labourers to agricultural land - Held:
The Re-settlement and Rehabilitation Policy, 1991 (R & R
Policy) made it clear that there was no provision for allotment
of agricultural land to the landless labourers - The appellant 8
mistakenly relied on the clearance letter by the Ministry of
Welfare to say that granting land to landless labourers was a
precondition for granting clearance to the project - Even if
allotment of land to landless labourers is regarded as a
condition, the Government of M.P. did not accept such a C
condition -
The Ministry of Welfare's clearance was not
statutory, like any other statutory clearance e.g. clearance
granted by Environment and Forest Ministry - The Authorities
also treated the same as non-statutory -
Thus, the
submission made by the appellant that landless labourers
were entitled for allotment of agricultural land to the extent of D
two hectares is devoid of any merit - Even otherwise, it does
not appeal to this Court that a landless labourer could be
entitled for allotment of agricultural land admeasuring two
hectares - Neither it had ever been contemplated nor it is
compatible with R & R Policy - Nor such land had ever been
E
allotted to this class of persons .
. · Administrative Law - Policy and Procedure - Procedure
for amendment of policy - Rules of business framed under
Article 166 of the Constitution - Rule 7 of the Business Rules,
Part II - Cases to be brought before the State Council of
Ministers - Issue as to whether the Council of Ministers was
permitted to delegate the power to amend its decision to a
Committee of Ministers consisting of the Ministers-in-charge
F
of the Departments concerned and the Chief Minister, and G
whether such amendment needed to be consistent with the
Rules of Business framed under Article 166 of the
Constitution - Held: Rules of Business were directory in nature
- Delegation of power was permissible - Constitution of India.
1950 - Article 166.
H
86
SUPREME COURT REPORTS
[2011) 12 S.C.R.
A
In the year 1972, the State of Madhya Pradesh
conceived a dam to provide irrigation facilities to farmers.
In 1992, a detailed Project Report was prepared and
submitted to the State Government and the Final Project
Report was approved by Technical Commi

## Text

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A
B
(2011) 12 S.C.R. 84
NARMADA BACHAO ANDOLAN
v.
STATE OF MADHYA PRADESH
(Civil Appeal No.3726 of 2011)
JULY 26, 2011
[J.M. PANCHAL, DEEPAK VERMA AND DR. B.S.
CHAUHAN, JJ.]
Land Acquisition - Construction of dam in the State of
C M.P. - Re-settlement and Rehabilitation policy for oustees -
Entitlement of oustee to claim land or compensation in lieu
of the land acquired - Order dated 7-6-1991 passed by
Narmada Valley Development Department (NVDD)
amending Clause 5. 1 of the Re-settlement and Rehabilitation
D Policy, 1991 (R & R Policy) - Challenge to - Held: The
chronological development of amendment of R & R Policy
reveals that Clause 3 of the R & R Policy provided for
entitlement of oustees to get land in lieu of the land acquired
- Clause 5 prescribed only the procel'ure for allotment of land
E under Clause 3 of the R & R Policy - Amendment of R & R
Policy on 7-6-1991 only facilitated those oustees who were not
willing to take the land in lieu of the land acquired - Such
amendment was brought on demand of the oustees as an
alternative - However, it did not take away the right of the
F oustees to claim land in lieu of the land acquired, for the
simple reason that there was no amendment in year 1991 to
Clause 3.2 of the R & R Policy and amendment to the said
Clause 3.2 incorporated on 27.4.2002 is not under challenge
-
The amendment under challenge simply facilitated an
oustee to claim compensation instead of land - This may be
G for the reason that oustee may be willing to settle in another
State or in urban area or want to adopt any other vocation!
profession or want to start any other business - However, it
did not take away the right of any oustee to claim land in lieu
of the land acquired.
H
84
NARMADA BACHAO ANDOLAN v. STATE OF
85
MADHYA PRADESH.
Land acquisition - Construction of dam in the State of A
M.P. - Re-settte_ment and Rehabilitation policy for oustees -
Entitlement of landless labourers to agricultural land - Held:
The Re-settlement and Rehabilitation Policy, 1991 (R & R
Policy) made it clear that there was no provision for allotment
of agricultural land to the landless labourers - The appellant 8
mistakenly relied on the clearance letter by the Ministry of
Welfare to say that granting land to landless labourers was a
precondition for granting clearance to the project - Even if
allotment of land to landless labourers is regarded as a
condition, the Government of M.P. did not accept such a C
condition -
The Ministry of Welfare's clearance was not
statutory, like any other statutory clearance e.g. clearance
granted by Environment and Forest Ministry - The Authorities
also treated the same as non-statutory -
Thus, the
submission made by the appellant that landless labourers
were entitled for allotment of agricultural land to the extent of D
two hectares is devoid of any merit - Even otherwise, it does
not appeal to this Court that a landless labourer could be
entitled for allotment of agricultural land admeasuring two
hectares - Neither it had ever been contemplated nor it is
compatible with R & R Policy - Nor such land had ever been
E
allotted to this class of persons .
. · Administrative Law - Policy and Procedure - Procedure
for amendment of policy - Rules of business framed under
Article 166 of the Constitution - Rule 7 of the Business Rules,
Part II - Cases to be brought before the State Council of
Ministers - Issue as to whether the Council of Ministers was
permitted to delegate the power to amend its decision to a
Committee of Ministers consisting of the Ministers-in-charge
F
of the Departments concerned and the Chief Minister, and G
whether such amendment needed to be consistent with the
Rules of Business framed under Article 166 of the
Constitution - Held: Rules of Business were directory in nature
- Delegation of power was permissible - Constitution of India.
1950 - Article 166.
H
86
SUPREME COURT REPORTS
[2011) 12 S.C.R.
A
In the year 1972, the State of Madhya Pradesh
conceived a dam to provide irrigation facilities to farmers.
In 1992, a detailed Project Report was prepared and
submitted to the State Government and the Final Project
Report was approved by Technical Committee of Central
8 Water Commission in 1997. Clearance to the project was
given by the Government of India. In 2002 the project was
accorded Environmental and Forest clearance. The
Cabinet of Ministers in its meeting approved payment of
Special Rehabilitation Grant (SRG) to be paid to oustees,
C who would not ask for land in lieu of the land acquired.
As a consequence thereof, order was issued to the same
effect in the name of the Governor of the State of Madhya
Pradesh. Construction of dam site commenced and was
completed upto crest level in the year 2008; only gates
were required to be installed so as to achieve full
D reservoir level of 317 metres, when Notification was
issued regarding submergence of four villages.
Appellant filed writ petition before High Court
claiming various reliefs, inu:!r-alia, to stop further
E construction which may cause submergence so that
displaced families are resettled and rehabilitated in 6
months before the submergence; to direct Jtate
Government to provide irrigated agricultural land to
eligible oustees including encroachers and landless
F labourers; and to declare the order dated 7 .6.1991
passed by Narmada Valley Development Department
(NVDD) amending para 5.1 of the Re-settlement and
Rehabilitation Policy, 1991 (R & R Policy) to be ultra vires
and unconstitutional, being arbitrary and malafides.
G
H
The State Authorities opposed the writ petition
contending that the validity of the R & R Policy had
already been upheld by the courts; that landless
labourers were not entitled for allotment of agricultural
land; that the writ petition was filed at much belated stage,
NARMADA BACHAO ANDOLAN v. STATE OF
87
MADHYA PRADESH
i.e. after completion of the dam; that appellant had an
A
alternative efficacious remedy before the Grievance
Redressal Authority (GRA); that amendment in para 5.1
of the R & R Policy was only procedural, and carried out
legally and was thus valid; and that even otherwise the
amendment to para 5.1 was inconsequential because the s
allotment of land for the oustees is provided under
Clause 3 of the R & R Policy and amendment carried out
in Clause 3 of the Policy at subsequent stage had not
been challenged by the appellant.
The High Court held that challenge to the validity of C
the amendment dated 7.6.1991 was belated and could not
be entertained; that the alternative remedy before the
GRA was efficacious and no extraordinary situation
prevailed warranting the High Court to interfere at such
a stage; that the landless labourers were not entitled for D
allotment of agricultural land; that the oustees had been
offered grant; that the value of their land had also been
assessed un_der the Land Acquisition Act, 1894 and that
person aggrieved, if any, can approach the GRA if he is
not satisfied with the reliefs granted to him in terms of E
the R & R Policy.
In the ·instant appeal, the appellant raised all the
issues which had been agitated before the High Court,
including the right of oustees for allotment of land in lieu
F
of land acquired and non-compliance of R&R Policy was
violative of fundamental rights of the oustees enshrined
in Article 21 of the Constitution. The appellant further
submitted that the amendment in Clause 5.1 of the R &
R Policy was null and void as it was not carried out in
G
accordance with the procedure prescribed under Section
21 of the General Clauses Act, 1897 as well as the
provisions of Article 166(2) and (3) of the Constitution;
that Clause 5.1 of the R & R Policy could not be amended
in violation of Rule 7(viii) of Part II of the Business Rules
H
88
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A and that since the Ministry of Welfare, Government of
India, had accorded clearance to the project with a clear
understanding that landless labourers would also be
allotted agricultural land and as the same had not been
complied with, the High Court's judgment required
B interference.
The appellant submitted that as the High Court did
not consider the issue of amendment of Clause 5.1 of the
R & R Policy and the effect of non-compliance of the
condition imposed by the Ministry of Welfare while
C granting the clearance for the project, this court must
examine the said issues. According to the appellant,
while making the amendment the procedure prescribed
under Article 166 of the Constitution was not followed
and while granting the clearance, the Ministry of Welfare ,
D added the clause that families of the landless labourers
would be given agricultural land to the extent of 2
hectares which was not given.
Dismissing the appeal, the Court
E
HELD:
Amendment to Clause 5.1 of the R & R Policy:
1.1. The chronological development of amendment
F of R & R Policy reveals that Clause 3 of the R & R Policy
provided for entitlement of oustees to get land in lieu of
the land acquired. Clause 5 prescribed only the procedure
for allotment of land under Clause 3 of the R & R Policy.
The amendment of R & R Policy on 7 .6.1991 which is
G under challenge by the appellant only facilitates those
oustees who were not willing to take the land in lieu of
the land acquired. Such an amendment was brought on
demand of thE~ oustees as an alternative. However, it
does not take away the right of the oustees to claim land
H in lieu of the land acquired, for the simple reason that
NARMADA BACHAO ANDOLAN v. STATE OF
89
MADHYA PRADESH
there was no amendment in year 1991 to Clause 3.2 of
A
the R & R Policy and the amendment to the said Clause
3.2 incorporated on 27.4.2002 is not under challenge. The
amendment under challenge simply facilitated an oustee
to claim compensation instead of land. This may be for
the reason that oustee may be willing to settle in another
B
State or in urban area or wants to adopt any other
vocation/profession or wants to start any other business.
However, it does not take away the right of any oustee
to claim the land in lieu of the land acquired. Therefore,
amendment to Clause 5.1 remains inconsequential so far c
as the right of an oustee to claim land in lieu of the land
acquired is concerned. The appellant could not explain
that in case the amendment to Clause 5.1 dated 7.6.1991
stood struck down, what benefit could an oustee derive
from the same. [Para 12] [100-F-H; 101-A-C]
D
1.2. Since amendment to clause 5.1 of the R & R
Policy was inconsequential so far as entitlement of
allotment of agricultural land_jn lieu of land acquired was
concerned, grievance of the appellant that procedure
adopted for its amendment was not in conformity with
E
the Statutory/Constitutional requirement becomes purely
an academic issue, not required to be determined as the
appellant could not point out as what prejudice the said
amendment could cause to an oustee. However, as the
issue has been heard at length, it is desirable to decide
F
the same also. [Para 13] [101-D-F]
Procedure adopted for amendment:
2.1. Rule 7 of the Business Rules, Part II provided for
the cases to be brought before the Council of Ministers.
Even function or duties which are vested in a State
Government by a statute may be allocated to ministers
by the Rules of Business framed under Article 166(3) of
the Constitution. The decision of any minister or officer
under the Rules of Business made under Articles 77(3)
G
H
90
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A and 166(3) of the Constitution is the decision of the
President or the Governor respectively and these Articles
do not provide for 'delegation'. That is to say, that
decisions made and actions taken by the minister or
officer under the Rules of Business cannot be treated as
8
exercise of delegated power in real sense, but are
deemed to be the actions of the President or Governor,
as the case may be, that are taken or done by them on
the aid and advice of the Council of Ministers. Whether
there can be further delegation by the minister to the
C
officer subordinate to him depends on the provisions of
the Rules of Business. [Paras 14, 18, 20, 21] [101-G-H;
103-B-C; 104-E-F; 106-A]
2.2. The issue here is whether tbe Council of
Ministers is permitted to delegate the power to amend its
D decision to a Committee of Ministers consisting of the
Ministers-in-charge of the Departments concerned and
the Chief Minister, and whether such amendment needs
to be consistent with the Rules of Business framed
under Article 166 of the Constitution of India. The case
E
law provides that delegation is permissible and that
Rules of Business are directory in nature. In view of the
above, delegation of power is permissible. [Para 30) [109B-D]
MRF Ltd. v. Manohar Parrikar & Ors. (2010) 11 SCC 37 4
F - distinguished.
R. Chitralekha v. State of Mysore & Ors. AIR 1964 SC
1823: 1964 SCR 368 - followed.
Sampat Prakash v. The State of Jammu & Kashmir &
G Anr. AIR 1970 SC 1118: 1970 SCR 365; The State of Bihar
v. Rani Sonabati Kumari AIR 1961 SC 221: 1961 SCR 728;
State of U.P. & Ors.
v. Pradhan Sangh Kshettra Samiti &
Ors. AIR 1995 SC 1512: 1995 (2) SCR 1015; Samsher
Singh v. State of Punjab & Anr. AIR 1974 SC 2192: 1975
H (1) SCR 814; King Emperor v. Sibnath Banerjee & Ors., AIR
NARMADA BACHAO ANDOLAN v. STATE OF
91
MADHYA PRADESH
1945 PC 156; Smt. Godavari Shamrao Parulekar v. The
A
State of Maharashtra & Ors. AIR 1964 SC 1128: 1964 SCR
446; State of Uttar Pradesh v. Om Prakash Gupta, AIR 1970
SC 679: 1969 (3) SCC 775; Bannari Amman Sugars Ltd. v.
Commercial Tax Officer & Ors., (2005) 1 SCC 625: 2004 (6)
Suppl. SCR 264; Dattatraya Moreshwar v. The State of B
Bombay & Ors. AIR 1952 SC 181: 1952 SCR 612; Mis.
Crawford Bayley & Co. & Ors. v. Union of India & Ors. AIR
2006 SC 2544: 2006 (3 ) Suppl. SCR 240 - referred to.
Land to landless labourers:
3.1. The issue of non-compliance of the clearance of C
the terms incorporated by the Ministry of Welfare has
been elaborately dealt in the earlier judgment in
Narmada Bachao Andolan Ill. So far as the present
appeal in respect of Upper Beda Project is concerned,
the rehabilitation policy for the oustees provided that the
D
displaced families would be rehabilitated maintaining
existing structure of social groups as far as possible, in
. the command area or near the periphery of.-the affected
areas in accordance with their preferences. [Paras 31, 32]
[109-E-G]
E
3.2. The R & R Policy policy makes it clear that there
was no provision for allotment of agricultural land to the
landless labourers. The appellant mistakenly relied on the
clearance letter by the Ministry of Welfare to say that
F
granting land to landless labourers was in and by itself
a precondition for granting clearance to the project. It is
impermissible in law to read a part of the document In
isolation. The document is to be read as a whole. The
letter of approval mentions "allotting a minimum of 2
hectares of land for all landless labourers" and says that G
unmarried major daughters would be treated as separate
entities for that particular purpose, i.e. of allotting 2
hectares of land. The appellant never pleaded the cause
of unmarried major daughters to be treated as separate
entities for allotment of land. The issue of entitlement of H
92
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A major sons and daughters of oustees for allotment of
land has been already dealt with and answered in
negative in Narmada Bachao Andolan Ill. [Paras 33, 36)
[111-D-E; 113-A-C]
3.3. Moreover, even if the allotment of land to
B landless labourers is regarded as a condition, the
Government of M.P. did not accept such a condition. The
Ministry of Welfare's clearance was not statutory, like any
other statutory clearance e.g. clearance granted by
Environment and Forest Ministry.
There is nothing in
C that clearance as to what would be the consequence for
non-compliance with those conditions. More so,
· subsequent thereto, it is evident from the record that
representations had been filed on behalf of the oustees
before the Ministry of Welfare. However, no action had
D ever been taken by the Ministry of Welfare that the terms
incorporated by it while gran.ing clearance were not
being adhered to and in spite of writing several letters,
the Ministry of Welfare did not consider it proper to take
any action or even to refer those letters to the State
E Government or to the NVDD. Thus, the said Autt:iorities
also treated the same as non-statutory. [Para 37) [113-DG]
3.4. In view of the above, the submission made by the
appellant that landless labourers are entitled for allotment
F of agricultural land to the extent of 2 hectares is devoid
of any merit. Even otherwise, it does not appeal to this
Court that a landless labourer could be entitled for
allotment of agricultural land admeasuring two hectares.
Neither it had ever been contemplated nor it is
G compatible with R & R Policy. Nor such land had ever
been allotted to this class of persons. [Para 37] [113-GH; 114-A-8]
Narmada Bachao Ando/an v. State of M.P. AIR 2011 SC
H 1989: 2011 (7) SCC 639 - referred to.
NARMADA BACHAO ANDOLAN v. STATE OF
93
MADHYA PRADESH
Case Law Reference:
A
2011 (7) sec 639
referred to
Paras 4,6,6,
31, 36
1970 SCR 365
referred to
Para 15
1961 SCR 728
referred to
B
Para 18
1964 SCR 368
followed
Paras 19,25,
26, 30
1995 (2) SCR 1015
referred to
Para 20
c
1975 (1) SCR 814
referred to
Para 20
1964 SCR 446
referred to
Para 23
1969 (3) sec 775
referred to
Para 24
D
2004 (6 ) Suppl. SCR 264 referred to
Para 26
1952 SCR 612
referred to
Para 27
2010 (11) sec 374
distinguished Paras 28, 30
2006 (3) Suppl. SCR 240 referred to
Para 29
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3726 of 2011.
From the Judgment & Order dated 16.12.2010 of the High
F
Court of Madhya Pradesh Bench at Jabalpur in W.P. No. 1360
of 2009.
Gourab Banerji, ASG, P.S. Patwalia, Chittroopa
(Appallant-ln-Person), Sahil Tagotra, Arjun Krishnan, C.D.
Singh, Sunny Choudhary, Ajay Singh for the appearing parties.
G
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been
preferred against the judgment and order dated 16.12.2010
H
94
SUPREME COURT REPORTS
[2011) 12 S.C.R.
A passed by the Madhya Pradesh High Court, Jabalpur in Writ
Petition No. 1360 of 2009.
B
2. Facts and circumstances giving rise to this appeal are
as under:
A. In the year 1972, the State of Madhya Pradesh
conceived a dam to provide irrigation facilities to farmers of
Khargone district. The dam, on filling upto full, would cause
submergence of 1258.59 hectares of land, out of which
1037.715 is private and 206.635 is government and 14.24
C hectares is forest land.
8. On 10.1.1992, a detailed Project Report was prepared
and submitted to the State Government and the Final Project
Report was approved by Technical Committee of Central Water
0 Commission vide order dated 6.5.1997. Clearance to the
project was given by the Government of India. It was on
10.10.2002 that the project was accorded Environmental and
Forest clearance.
C. The Cabinet of Ministers in its meeting dated
E 4.10.2002 approved payment of Special Rehabilitation Grant
(hereinafter called SRG) to be paid to oustees, who would not
ask for land in lieu of land acquired. As a consequence thereof,
order dated 28.12.2002 was issued to the same effect in the
F
name of the Governor of the State of Madhya Pradesh.
D. On 23.5.2004, construction of dam site commenced
and was completed upto crest level in the year 2008; only gates
were required to be installed so as to achieve full reservoir level
of 317 metres. Subsequent thereto, Notification dated 5.3.2008
G was issued regarding submergence of four villages, namely,
Sonud, Nimit, Bedhaniya and Khamid.
E. Appellant approached the High Court by filing writ
petition No. 1360 of 2009 claiming various reliefs, inter-alia, to
stop further construction which may cause submergence so that
H
NARMADA BACHAO ANDOLAN v. STATE OF
95
MADHYA PRADESH [DR. B.S. CHAUHAN, J.]
displaced families are resettled and rehabilitated in 6 months
A
before the submergence; to direct State Government to
provide irrigated agricultural land to eligible oustees including
encroachers and landless labourers; to declare the order dated
7.6.1991 passed by Narmada Valley Development Department
(hereinafter called NVDD) amending para 5.1 of the ReB
settlement and Rehabilitation Policy, 1991 (hereinafter called
R & R Policy) to be ultra vires and unconstitutional, being
arbitrary and mala fides.
F. The State Authorities opposed the writ petition
contending that the validity of the R & R Policy had already been
C
upheld by the courts; landless labourers were not entitled for
allotment of agricultural land; the writ petition was filed at much
belated stage, i.e. after completion of the dam; appellant had
an alternative efficacious remedy before the Grievance
Redressal Authority (hereinafter called GRA); amendment in
D
para 5.1 of the R & R Policy was only procedural, and carried
out legally and was thus valid; even otherwise the amendment
to para 5.1 was inconsequential because the allotment of land
for the oustees is provided under Clause 3 of the R & R Policy
and amendment carried out in Clause 3 of the Poljcy at
E
subsequent stage had not been challenged by the appellant.
G. The High Court considered the rival submissions
advanced on behalf of the parties and held that challenge to
the validity of the amendment dated 7 .6.1991 was belated and
F
could not be entertained. The alternative remedy before the
GRA was efficacious and no extraordinary situation prevailed
warranting the High Court to interfere at such a stage. The
landless labourers were not entitled for allotment of agricultural
land. The oustees had been offered grant; the value of their land
G
had also been assessed under the Land Acquisition Act, 1894
(hereinafter called 'the Act 1894'). Person aggrieved, if any,
can approach the GRA if he is not satisfied with the reliefs .
granted to him in terms of the R & R Policy. After taking the
aforesaid view, the High Court ·issued various directions
H
96
SUPREME COURT REPORTS
[2011} 12 S.C.R.
A including: to install radial gates, block sluice gates and to fill
up dam upto 310 metres; when canal network is ready, the
Government could approach the Court to fill up the dam to 317
metres; the Government would ensure that land oustees were
given benefits to which they are entitled under the R & R Policy
s within four weeks; and that persons aggrieved, if any, were at
liberty to agitate the grievances in respect of reliefs before the
GRA.
Hence, this appeal.
C
3. Ms. Chittaroopa Palit, representative of the appellant,
has raised before us all the issues which had been agitated
before the High Court, including the right of oustees for
allotment of land in lieu of land acquired and non-compliance
of R&R Policy is violative of fundamental rights of the oustees
D enshrined in Article 21 of the Constitution. It has further been
submitted by her that the amendment in Clause 5.1 of the R &
R Policy was null and void as it has not been carried out in
accordance with the procedure prescribed under Section 21
of the General Clauses Act, 1897 as well as the provisions of
E Article 166(2) and (3) of the Constitution of India. Clause 5.1
of the R & R Policy could not be amended in violation of Rule
?(viii) of Part II of the Business Rules. And that since the
Ministry of Welfare, Government of India, has accorded
clearance to the project with a clear understanding that landless
F labourers would also be allotted agricμltural land and as the
same has not been complied with, the High Court's judgment
requires interference.
4. On the contrary, Mr. P.S. Patwalia, learned senior
counsel appearing for the respondents has vehemently
G opposed the appeal contending that Clause 5.1 of the R & R
Policy deals with procedure only. Entitlement for allotment of
land is provided under Clause 3.2 of the R & R Policy and as
the amendment to the said clause was not challenged,
amendment to Clause 5.1 remains inconsequential. Dam
H
NARMADA BACHAO ANDOLAN v. STATE OF
97
MADHYA PRADESH [DR. B.S. CHAUHAN, J.]
construction started in year 2004 and compensation for land
A
acquired had been determined much ago. By December .2002,
the benefit of SRG had also been given to the oustees. The
writ petition was filed in year 2008 after the dam stood fully
constructed. At the time of filing the writ petition there was no
challenge to Clause 5.1 of the R & R Policy, rather it was
B
1 challenged seeking amendment by filing an application dated
11.5.2010. Amendment to Clause 5.1 of R & R Policy has
been in conformity with the Business Rules of the Government
and all the orders in this respect had been passed in the name
of the Governor. The Council of Ministers had delegated the c
power to the NVDD and to the Hon'ble Ministef for
Rehabilitation and in case there was any difference between
the said two Hon'ble Ministers, the matter would be referred to
the Hon'ble Chief Minister. The law permits delegation of power
to make routine changes in subordinate legislation. Therefore,
0
no fault can be found with the procedure adopted for
amendment of Clause 5.1 of the R & R Policy. ·
Mr. Patw<1lia further asserts that so far as the entitlement
of relief in favour of landless labourers etc. is concerned, this
Court has dealt with the issue in Narmada Bachao Ando/an
E
v. State of M.P., AIR 2011 SC 1989 (hereinafter called
"Narmada Bachao Andolan Ill") and all the issues agitated in
this appeal have been answered in the said judgment. The
appeal lacks merit. and is liable to be dismissed.
5. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
F
6. This Court in Narmada Bachao Ando/an Ill (supra) has
de~lt elaborately with most of the issues agitated in this appeal,
particularly, the issues of delay and laches, availability of G
alternative remedy, entitlement of major sons and daughters of
oustees/as well as the landless labourers for allotment of
agricultural land. The issues of land acquisition, rehabilitation
and resettlement of oustees considering their fundamental and
constitutional rights under Articles 21 and 300-A of the
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SUPREME COURT REPORTS
[2011] 12 S.C.R.
A Constitution of India have been dealt with elaborately therein.
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This Court held:-
''These cases are to be decided giving strict adherence
to the R & R Policy, as amended on 3.7.2002, further
considering that special care is to be taken where persons
are oppressed and uprooted so that they are better off.
Our Constitution requires removal of economic inequalities
and provides for provision of facilities and opportunities
for a decent standard of living and protection of economic
interests of the weaker segments of the society and in
particular Scheduled Castes and Scheduled Tribes. Every
human being has a right to improve his standard of living.
Ensuring people are better off is the principle of socioeconomic justice which every State is under obligation to
fulfil, in view of the provisions contained in Articles 37, 38,
39(a), (b), (e), (f), 41, 43, 46 and 47 of the Constitution of
India."
Thus, the case in fact requires to be disposed of .i11 terms
of the said judgment.
-
7. Ms. Palit has submitted that as the High Court did not
consider the issue of amendment of Clause 5.1 of the R & R
Policy and the effect of non-compliance of the condition
imposed by the Ministry of Welfare while granting the clearance
F for the project, this court must examine the said issues.
According to Ms. Palit, while making the amendment the
procedure prescribed under Article 166 of the Constitution has
not been followed and while granting the clearance, the Ministry
of Welfare has added the clause that families of the landless
G labourers would be given agricultural land to the extent of 2
hectares which has not been given.
H
Thus, this appeal is being considered to be restricted to
these two issues.
NARMADA BACHAO ANDOLAN v. STATE OF
MADHYA PRADESH [DR. S.S. CHAUHAN, J.]
Amendment to Clause 5.1 of the R & R Policy:
99
A
8. The NVDD vide Resolution dated 18.11.1987 proposed
liberal amended policy for the oustees of the Narmada Projects
and submitted the same for approval to the Cabinet of
Ministers, Government of Madhya Pradesh. The said proposal
8
was approved by the Cabinet of Ministers, Government ofM.P.
on 25.11.1987. Subsequently, the NVDD vide Resolution dated
28.8.1989 proposed certain modifications in the rehabilitation
policy and the summary of the same was submitted for the
approval to the Cabinet of Ministers, Government of M.P. The
said proposal specifically provided for delegation of power to
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the NVDD and Rehabilitation Department to make routine/
general amendment in R & R Policy with the permission of the
Ministers-in-charge of the said two departments. The Council
of Ministers vide resolution dated 1.9.1989 approved the said
proposal.
D
9. Certain amendments were sought in R & R Policy vide
resolution dated 5.9.1989. The NVDD, in consultation with the
Rehabilitation ·Department and afte·r seeking approval of the
Ministers-in-charge of both the said Departments, amended
E
Clauses 4.1, 5.1 and 8.3 of the R & R Policy and issued the
amended policy on 7.6.1991 in the name of the Governor of
the State. The copy of the said amendment order was issued
to 44 officers concerned as is evident from the record. Clause
4.1 of the R & R Policy was amended to facilitate the tenure
F
holders, who were voluntarily willing to sell their lands, "as far
as possible" to alienate the same and further providing for
procedure for determination of reasonable price of such lands.
Clause 5.1 was amended to the effect that if an oustee family
does not wish to obtain land in lieu of the submerged land and
G
wishes full payment of the amount of compensation, it can do
so by submitting an application to this effect in writing to the
concerned Land Acquisition Officer. In such cases, the oustee
families would have no entitlement over allotment of land and
would be paid full amount of compensation. An option once
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SUPREME COURT REPORTS
[2011] 12 S.C.R.
A exercised under this provision would be final, and no claim for
allotment of land, in lieu of the land, acquired could be made
afterwards. If any oustee family belonging to the Scheduled
Tribes submits such an application, it will be essential to obtain
orders from the Collector, who would after necessary enquiry
B certify that it would not adversely affect the interests of the
oustee family. Such applications of the Scheduled Tribes
oustee families could be accepted only after the said
certification by the Collector. Clause 8.3 was also amended
changing the size of plots to be allotted to the oustees etc.
c
10. Subsequently on 24.10.2002, NVDD submitted the
summary to Council of Ministers for approval of SRG for
oustees of Narmada Projects, particularly in respect of those
oustees who were not claiming land in lieu of the land acquired,
and the said proposal was approved by the Cabinet of
D Ministers. As a consequence, the order dated 28.12.2002 was
issued giving effect to the said amendment in the name of the
Governor of the State of Madhya Pradesh.
11. On 27.4.2002, the amendment was made in Clause
E 3.2 of the R & R Policy putting the words "as far as possible"
for allotment of agrlcultural land to the oustees in lieu of the
land acquired.
12. The aforesaid chronological development of
amendment of R &. R Policy reveals that Clause 3 of the R & R
F Policy provided for entitlement of oustees to get land in lieu of
the land acquired. Clause 5 prescribed only the procedure for
allotment of land under Clause 3 of the R & R Policy. The
amendment of R & R Policy on 7.6.1991 which is under
challenge by the appellant only facilitates those oustees who
G were not willing to take the land in lieu of the land acquired. Such
an amendment was brought on demand of the oustees as an
alternative. However, it does not take away the right of the
oustees to claim land in lieu of the land acquired, for the simple
reason that there was no amendment in year 1991 to Clause
H 3.2 of the R & R Policy and the amendment to the said Clause
NARMADA BACHAO ANDOLAN v. STATE OF
101
MADHYA PRADESH [DR. B.S. CHAUHAN, J.]
3.2 incorporated on 27.4:2002 is not under challenge. The A
amendment under challenge simply facilitated an oustee to
claim compensation instead of land. This may be for the
reason that oustee may be willing to settle in another State or
in urban area or wants to adopt any other vocation/profession
or wants to start any other business. However, it does not take B
away the right of any oustee to claim the land in lieu of the land
acquired. Therefore, in our opinion, ·amendment to Clause 5.1
remains inconsequential so far as the right of an oustee to claim
land in lieu of the land acquired is concerned. Ms. Palit could
not explain that in case her averment was accepted and the C
amendment to Clause 5.1 dated 7.6.1991 stood struck down,
what benefit could an oustee derive from the same. In view of
the above, we do not find any force in the submissions made
on behalf of the .appellant on this count. ·
13. In view of our conclusion reached herein that D
amendment to clause 5.1 of the R & R Policy was
inconsequential so far as entitlement of allotment of agricultural
land in liel!.Of land acquired was concerned, grievance of the
appellant that procedure adopted for its amendment was not
in conformity with the Statutory/Constitutional requirement E
becomes purely an academic issue, not required to be
determined as Ms. Palit could not point out as what prejudice
the said amendment could cause to an oustee. However, as
we have heard the issue at length, it is desirable to decide the
same also.
F
Procedure adopted for amendment:
14. Ms. Palit has submitted that the procedure adopted
for amendment of Clause 5.1 of the R & R Policy is not in
consonance with the provisions of Section 21 of the General G
Clauses Act, 1897 and Article 166 (2) and (3) of the
Constitution. Rule 7 of the Business Rules, Part II provided for
the cases to be brought before the Council of Ministers.
Clause (viii) thereof reads:-
·
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102
SUPREME COURT REPORTS
[2011) 12 S.C.R.
A
"Proposals to vary or reverse a decision previously taken
at meeting of the Council".
15. In Sampat Prakash v. The State of Jammu & Kashmir
& Anr., AIR 1970 SC 1118, this Court held:-
B
"This provision (S.21) is clearly a rule of interpretation which
has been made applicable to the Constitution in the same
manner as it applies to any Central Act or Regulation ..... .
As an example, under Article 77(3), the President, and,
under Article 166(3) the Governor of a State are
C
empowered to make rules for the more convenient
transaction of the business of the Government of India or
the Government of the State, as the case may be, and for
the allocation among Ministers of the said business. If, for
the interpretation of these provisions, Section 21 of the
D
General Clauses Act is not applied, the result would be
that the rules once made by the President or a Governor
would become inflexible and the allocation of the business
among the Ministers would forever remain as laid down
in the first rules .. Clearly, the power of amending these
E
rules from time to time to suit changing situations must be
held to exii>t a'ld that power can only be found in these
articles by applying Section 21 of the General Clauses Act".
16. As the issue raised is of great public importance and
Ms. Palit was not able to render proper legal assistance, we
F requested Mr. Gourab Banerjee, learned Additional Solicitor
General who was present in the court to assist the court on two
issues, namely:
G
H
(1) Whether the State Council of Ministers is, as a matter
of law, permitted to delegate its power to a subordinate
authority to amend its own decision.
(2) Whether such amendment is to be consistent with the
Rules of Business framed under Article 166 of the
Constitution of India.
NARMADA BACHAO ANDOLAN v. STATE OF
103
MADHYA PRADESH .[DR. B.S. CHAUHAN, J.)
17. Mr. Banerjee has made the submissions citing large
A
number of judgments of this Court and contended that law
permits the delegation of power for amending the subordinate
legislation in view of the provisions of Articles 77 and 166 of
the Constitution.
'
18. Even function or duties which are vested in a State
Government by a statute may be allocated to ministers by the
Rules of Business framed under Article 166(3). In the case of
The State of Bihar v. Rani Sonabati Kumari, AIR 1961 Sc
221, it was held as under:
B
c
"Section 3(1) of the Act confers the power of issuing
notifications under it, not on any officer but on the State
Government as such though the exercise of that power
would be governed by the rules of business framed by the
Governor under Art. 166(3) of the Constitution. But this
D
does not afford any assistance to the appellant. The order
of Government in the present case in expressed to be
made "in the name of the Governor" and is authenticated
as prescribed by Art. 166(2), and consequently "the validity
of the order or instrument cannot be called in question on
E
the ground that it is not an order or instrument made or
executed by the Governor."
19. In the said judgment, it was also observed that the
Governor remains responsible for actions of subordinates taken
in his name:
"The only point canvassed is whether it was an order made
by the G.overnor or by some one duly authorised by him in
that behalf within Art.154(1 ). Even assuming that the order
F
did not originate from the Governor personally, it avails the
G
State nothing because the Governor remains responsible
for the action of his subordinates taken in his name. In King
Emperor v. Sibnath Banerjee & Ors., AIR 1945 PC 156
already referred to, Lord Thankerton pointing out the
distinction between delegation by virtue of statutory power
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104
SUPREME COURT REPORTS
[2011] 12 S.C.R.
there and the case of the exercise of the Governor's power
by authorised subordinates under the terms of S. 49(1) of
the Government of India Act, 1935 corresponding to Art.
154(1), said:
"Sub-section 5 of S. 2 (of the Defence of India Act, 1939)
provides a means of delegation in the strict sense of the
word, namely, a transfer of the power or duty to the officer
or authority defined in the sub-section, with a
corresponding divestiture of the Governor of any
responsibility in the matter, whereas under S. 49(1) of the
Act of 1935, the Governor remains responsible for the
action of his subordinates taken in his name.
This last point is therefore without force and has to be
rejected."
(See also the decision of the Constitution Bench in R.
Chitralekha v. State of Mysore & Ors., AIR 1964 SC
1823).
20. The decision of any minister or officer under the Rules
E of Business made under Articles 77(3) and 166(3) of the
Constitution is the decision of the President or the Governor
respectively and these Articles do not provide for 'delegation'.
That is to say, that decisions made and actions taken by the
minister or officer under the Rules of Business cannot be
F treated as exercise of delegated power in real sense, but are
deemed to be the actions of the President or Governor. as the
case may be, that are taken or done by them on the aid and
advice of the Council of Ministers. In State of UP. & Ors. v.
Pradhan Sangh Kshettra Samiti & Ors., AIR 1995 SC 1512,
G this Court relied on the decision of the Seven-Judge Bench in
Samsher Singh v. State of Punjab & Anr., AIR 1974 SC 2192
and held as under:
H
" .... Any action taken in the exercise of the executive power
of the State vested in the Governor under Article 154(1)
NARMADA BACHAO ANDOLAN v. STATE OF
105
MADHYA PRADESH [DR. B.S. CHAUHAN, J.]
is taken by the Government of the State in the name of the
A
Governor as will appear in Article 166(1).