# NARMADA BACHAO ANDOLAN v. UNION OF INDIA AND ORS - **Citation:** [2005] 2 S.C.R. 840 - **Court:** Supreme Court of India - **Decided:** 2005-03-15 - **Bench:** Y.K. Sabharwal, K.G. Balakrishnan, S.B. Sinha - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narmada-bachao-andolan-v-union-of-india-and-ors-20497 - **Pages:** 33 ## Headnote Resettlement and Rehabilitation : Hydero-electric Project-Sardar Sarovar Dam-Resettlement and C Rehabilitation of Project Affected Families-'-Permanently and temporarily affected families-Interim applications by PAFs in the State of MP. for implementation of order of Supreme Court* and Narmada Water Disputes Tribunal Award-Benefits claimed to be extended to all major sons-Also to temporarily affected families and to heirs of land holders died prior to D Notification-Held, the applicants 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, the applicants, irrespective of the fact as to whether they are permanently affected or temporarily affected, were entitled to the benefit of the rehabilitation package-All the applicants who were both permanently E and temporarily affected by submergence by reason of raising of the height of the dam to the present height would be entitled to the benefit of the rehabilitation package. The expression "pari passu'', has a direct nexus with raising of the height vis-a-vis implementation of relief and rehabilitation progress both of F 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-The definition of family' in the scheme undisputably includes major sons-A plain reading of the said definition clearly shows that even where a G major son of the land-holder did not possess land separately, he would be entitled to grant of a separate holding-As a major son constitutes 'separate family' within the interpretation clause of family', no meaning thereto can be given. Grievance Redressal Authority has rightly held that the applicants would II 840 NARMADA BACHAO ANDOLAN v. U.0.1. 841 not be entitled to allotment of land of their choice but the land offered to them A should be irrigable and cultivable in terms of the judgment of this Court as well as the Award of the Tribunal-The State has constituted a land bankNormally, 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 unless it is shown that the lands are not irrigable or cultivable or otherwise unsuitable-This Court in the main judgment did not B say that the oustees are to be relocated as a community-The question of rehabilitation inevitably would arise as and when they become entitled theret<>- This Court cannot entertain applications raising grievance involving factual issues raised by the parties-The GRA being headed by a former Chief Justice of the High Court would indisputably be entitled to adjudicate upon such C disputes-It is also expected that the parties should ordinarily abide by such decision-Inter-State Water Disputes Tribunal Act, 1956-ss. 5(2) and 5(4). Words and Phrases : 'Pari passu '-Meaning of 'Family '-Connotation of *Narmada Bachao Ando/an v. Union of India and Ors., [2000) l 0 SCC 664 = [2000) Supp. 4 SCR 94, relied on. D E Goodfrey Phillips India Ltd and Anr. v State of U.P. and Ors., (2005) AIR SCW 613, referred to. . Black's Law Dictionary, 5th Edn. ; G.P. Singh 's "Principles a/Statutory Interpretation", referred to. CIVIL ORIGINAL JURISDICTION: I.A. No. 10 in I.A. No. 4 and F I.A. No. 11 in I.A. No. 7 in W.P.C. No. 328 of of 2002. Under Article 32 of the Constitution of India. Prashant Bhushan for the Petitoner G Ashok H. Desai,. T.S. Doabia, C.S. Vaidyanathan, Mukul Rohtagi, Naresh o Kumar, Aruneshwar Gupta A.A.G. 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, H 842 SUPREME CO ## Text _Characters 0–39,900 of 57,623. This is a partial read: ask again with offset=39900 for what follows._ A NARMADA BACHAO ANDOLAN v. UNION OF INDIA AND ORS. MARCH 15, 2005 B [Y.K. SABHARWAL, K.G. BALAKRISHNAN AND S.B. SINHA, JJ.] Resettlement and Rehabilitation : Hydero-electric Project-Sardar Sarovar Dam-Resettlement and C Rehabilitation of Project Affected Families-'-Permanently and temporarily affected families-Interim applications by PAFs in the State of MP. for implementation of order of Supreme Court* and Narmada Water Disputes Tribunal Award-Benefits claimed to be extended to all major sons-Also to temporarily affected families and to heirs of land holders died prior to D Notification-Held, the applicants 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, the applicants, irrespective of the fact as to whether they are permanently affected or temporarily affected, were entitled to the benefit of the rehabilitation package-All the applicants who were both permanently E and temporarily affected by submergence by reason of raising of the height of the dam to the present height would be entitled to the benefit of the rehabilitation package. The expression "pari passu'', has a direct nexus with raising of the height vis-a-vis implementation of relief and rehabilitation progress both of F 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-The definition of family' in the scheme undisputably includes major sons-A plain reading of the said definition clearly shows that even where a G major son of the land-holder did not possess land separately, he would be entitled to grant of a separate holding-As a major son constitutes 'separate family' within the interpretation clause of family', no meaning thereto can be given. Grievance Redressal Authority has rightly held that the applicants would II 840 NARMADA BACHAO ANDOLAN v. U.0.1. 841 not be entitled to allotment of land of their choice but the land offered to them A should be irrigable and cultivable in terms of the judgment of this Court as well as the Award of the Tribunal-The State has constituted a land bankNormally, 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 unless it is shown that the lands are not irrigable or cultivable or otherwise unsuitable-This Court in the main judgment did not B say that the oustees are to be relocated as a community-The question of rehabilitation inevitably would arise as and when they become entitled theret<>- This Court cannot entertain applications raising grievance involving factual issues raised by the parties-The GRA being headed by a former Chief Justice of the High Court would indisputably be entitled to adjudicate upon such C disputes-It is also expected that the parties should ordinarily abide by such decision-Inter-State Water Disputes Tribunal Act, 1956-ss. 5(2) and 5(4). Words and Phrases : 'Pari passu '-Meaning of 'Family '-Connotation of *Narmada Bachao Ando/an v. Union of India and Ors., [2000) l 0 SCC 664 = [2000) Supp. 4 SCR 94, relied on. D E Goodfrey Phillips India Ltd and Anr. v State of U.P. and Ors., (2005) AIR SCW 613, referred to. . Black's Law Dictionary, 5th Edn. ; G.P. Singh 's "Principles a/Statutory Interpretation", referred to. CIVIL ORIGINAL JURISDICTION: I.A. No. 10 in I.A. No. 4 and F I.A. No. 11 in I.A. No. 7 in W.P.C. No. 328 of of 2002. Under Article 32 of the Constitution of India. Prashant Bhushan for the Petitoner G Ashok H. Desai,. T.S. Doabia, C.S. Vaidyanathan, Mukul Rohtagi, Naresh o Kumar, Aruneshwar Gupta A.A.G. 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, H 842 SUPREME COURT REPORTS [2005] 2 S.C.R. A Satish K. Agnihotri, Rohit K. Singh, Amit Mishra, Sanjay Parikh, Ms.Anitha Shenoy, A.N. Singh, R.B. Masodkar, S.S. Shinde and Mukesh K. Giri for the Respondents. The following Order of the Court was delivered : B S.B. SINHA, J. INTRODUCTORY REMARKS: Sardar Sarovar Project (SSP) is one of the most ambitious multipurpose projects which on completion is expected to produce 1450 MW of power and supply water for irrigation and drinking purposes to areas not only in the riparian States including Kutch in the State of Gujarat but even in areas C belonging to non-riparian State like Rajasthan. D E F The multiple project by way of construction of a dam over the River Narmada began its journey in 1961. A large number of residents of the States of Madhya Pradesh, Maharashtra and Gujarat are affected by the said construction. The Government of India in exercise of its power conferred upon it under Section 4 of the Inter-State Water Disputes Act, 1956, constituted a Tribunal and made the following reference to it : "In exercise of the pC)_wers conferred by sub-section (I) of Section 5 of the Inter-State Water Disputes Act, 1956 (33 of 1956), the Central Government hereby refers to the Narmada Water Disputes Tribunal for adjudication of the water dispute regarding the inter-State River Narmada, and the river-valley thereof, emerging from Letter No. MIP5565/C-10527-K dated 6.7.1968, from the Government of Gujarat". Another reference by the Government of India was made on 16.10.1969 . . f'#. The State of Gujarat b~ore the Tribunal admittedly made an offer that the oustees can be resettled and rehabilitated in the State of Gujarat wherefor a rehabilitation package would be granted if they opt therefor and in the G event the outstees opt to stay back in their home state, the entire expenses for the purpose of rehabilitation shall be borne by the State of Gujarat. An award was made by the said Tribunal in terms of Section 5(2) read with Section 5(4) of the Inter-State Water Disputes Act, 1956 on 16.8.1978. Several references thereafter were filed by the concerned States. As regard H relief and rehabilitation, the award inter alia contained mandatory provisions J\iARMADA BACHAO ANDOLAN v. U.0.1. [SINHA, J.) 843 containing Clause XI sub-clause (IV)(6)(ii) stating that no submergence of A any area would take place unless the oustees are rehabilitated. In terms of its award, the Tribunal directed constitution of an Inter-State Administrative Authority known as 'Narmada Control Authority' (NCA) for the purpose of securing compliance with and implementation of the decision and directions of the Tribunal. The NCA in its turn constituted one or more sub-committees including one relating to resettlement and rehabilitation. WRIT PETITION: B The Narmada Bachao Andolan (NBA), a Non-Governmental Organization which has been in the forefront of the agitation against the construction of the Sardar Saro var Dam filed a writ petition before this Court C raising several issues including relief and rehabilitation. Before this Court a grievance was raised as regard the attitude on the part of the State of Madhya Pradesh as it made an attempt to wriggle out of its responsibilities to provide rehabilitation facilities to the oustees by offering D . them cash compensation. A contention was further raised that since offers to oustees affected at the 90 metres of the height of the dam to be settled in the State of Madhya Pradesh had not been made, further construction should not be p~rmitted till one year after the resettlement of these projectaffected families (PAFs) at 90 metres. DECISION OF THIS COURT: A three-Judge Bench of this court by a judgment and order dated 18.10.2000 in Narmada Bachao Ando/an v. Union of India and Ors., [20001 l 0 sec 664 disposed of the said writ petition upon issuing various directions. E The court inter a/ia opined that: F (i) displacement of the tribals and other persons would not per se result in violation of their fundamental or other rights; (ii) on their rehabilitation at new locations they would be better off than what they were; G (iii) at the rehabilitation sites they will have more and better amenities than those they enjoyed in their tribal hamlets; and (iv) the gradual assimilation in the mainstream of the society would lead to betterment and progress. H 844 SUPREME COURT REPORTS (2005] 2 S.C.R. A This Court in its judgment noticed that the award provided that every displaced family whose more than 25% of agricultural landholding is acquired, would be entitled to be allotted irrigable land of its choice to the extent of land acquired subject to the prescribed ceiling of the State concerned with a minimum of two hectares land. Furthermore, the PAFs will be allotted a house/plot free of cost. The court noticed that the State Governments have B liberalized the policy with regard to resettlement and have offered packages more than what was provided for in the award of the Tribunal. Such liberalized policy included those PAFs who were even encroachers, landless/displaced persons, joint-holders, tapu-land (island) holders and major sons (18 years old). The court noticed various measures taken by the States of Madhya C Pradesh, Maharashtra and Gujarat for sustainable development as regard preserving the socio-cultural environment of the displaced persons in these States. This Court noticed that although in terms of the award those sons of the oustees who had become major one year prior to the issuance of the notification for land acquisition were entitled to be allotted land; the State of Gujarat made a relaxation thereto so as cover all those who became major up D to 1.1.1987. Before us it is contended that the State of Madhya Pradesh also extended the cut off date to the date of issuance of notification. The Court noticed that R&R Group and the Grievance Redressal Authority (GRA) having been established, a system had come into force for ensuring satisfactory resettlement and rehabilitation of the oustees. The Court furthermore noticed E that at the instance of GRA, PAFs were being issued sanads for the lands allotted to them which will ensure provisions of a proper legal document in their favour. The Court also noticed that the sites had been identified by the State of Madhya Pradesh with a view to arrange resettlement of PAFs and out of 92 sites for resettlement of PAFs which were required to be established and out of these; 18 were stated to be fully developed, development in 23 F sites was in progress; 18 sites were such where location and identification of land although was complete but development work had not started and 33 sites were such where location of land for the development was to be decided by the task force constituted for the said purpose. Noticing the .variance between the rehabilitation package offered by the State of Madhya Pradesh G and Gujarat this Court opined : " ... The impression which one gets after reading the affidavit on behalf of the State of Madhya Pradesh clearly is that the main effort of the said State is to try and convince PAFs that they should go to Gujarat whose rehabilitation package and effort is far superior to that of the H State of Madhya Pradesh. It is, therefore, not surprising that a vast NARMADA BACHAO ANDOLAN v. U.0.1. [SINHA, J.] 845 majority of PAFs of Madhya Pradesh have opted to be resettled iμ A Gujarat but that does not by itself absolve the State of Madhya Pradesh of its responsibility to take prompt steps so as to comply at least with the provisions of the Tribunal's award relating to relief and rehabilitation. The State of Madhya Pradesh has been contending that the height of the dam should be lowered to 436 ft. so that lesser, number of people are dislocated but we find that even with regard to. B the rehabilitation of the oustees at 436 ft. the R&R programme of the State is nowhere implemented. The State is under an obligation to effectively resettle those oustees whose choice is not to go to Gujarat. Appropriate directions may, therefore, have to be given to ensure that the speed in implementing R&R picks up. Even the interim report of C Mr. Justice Soni, GRA for the State of Madhya Pradesh, indicates lack of commitment on the State's part in looking to the welfare of its own people who are going to be under the threat of ouster and who have to be rehabilitated. Perhaps the lack of urgency could be because of lack of resources, but th~n the rehabilitation even in Madhya Pradesh is to be at the expense of Gujarat. A more likely reason could P be that, apart from electricity, the main benefit of the construction of the dam is to be of Gujarat and to a lesser extent to Maharashtra and Rajasthan. In a federal set-up like India, whenever any such interstate project is approved and work undertaken the States involved have a responsibility to cooperate with each other. There is a method E of settling the differences which may arise amongst there like, for example, in the case of inter-State water dispute the reference of the same to a Tribunal. The award of the Tribunal being binding, the States concerned are duty-bound to comply with the terms t~ereof. The Court issued inter a/ia, the following directions : p, "(2) As the Relief and Rehabilitation Subgroup has cleared the construction up to 90 metres, the same can be undertaken immediately. Further raising of the height will be only pari passu with the implementation of the relief and rehabilitation measures and on the clearance by the Relief and Rehabilitation Subgroup. The Relief and G Rehabilitation Subgroup will give clearance for further construction after consulting the three Grievance Redressal Authorities. (5) The reports of the Grievance Redressal Authorities, and of Madhya Pradesh in particular, show that there is a considerable slackness in the work of identification of land, acquisition of suitable H • A B c D 846 SUPREME COURT REPORTS [2005] 2 S.C.R. land and the consequent steps necessary to be taken to rehabilitate the project oustees. We direct the States of Madhya Pradesh, Maharashtra and Gujarat to implement the award and give relief and rehabilitation to the oustees in terms of the packages offered by them and these States shall comply with any direction in this regard which is given either by NCA or the Review Committee or the Grievance Redressal Authorities. (7) NCA will within four weeks from today draw up an action plan in relation to further construction and the relief and rehabilitation work to be undertaken. Such an action plan will fix a time-frame so as to ensure relief and rehabilitation pari passu with the increase in the height of the dam. Each State shall abide by the terms of the action plan so prepared by NCA and in the event of any dispute or difficulty arising, representation may be made to the Review Committee. However, each State shall be bound to comply with the directions of NCA with regard to the acquisition of land for the purpose of relief and rehabilitation to the extent and within the period specified by NCA." THE PRESENT PROCEEDINGS : As the directions of this Court were not implemented in letter and E spirit, applications were filed by the petitioners h~rein for directing the Respondents to rehabilitate each of them in accordance with the NWDTA and the orders of this Court, as also for a direction that the orders passed by the GRA be set aside and not acted upon. The petitioners in I.A. No. 4 of2004 who are,23 in number, are residents F of village Picchodi and the petitioners in I.A. No. 11 of 2004 who are 14 in number, are residents of village Jalsindhi. In these applications, the petitioners had prayed for a direction upon the Respondents .not to proceed with further construction by raising the height of the dam till all affected people at the height of 110 meters are rehabilitated in all respects. 0 G As GRA had been constituted by the State of Madhya Pradesh, this Court without going into the merit of the matter by orders dated 16.4.2004 and 23. 7 .2004, directed the parties to agitate their grievances at the first instance before it. CONTENTIONS: H The contention of the Applicants herein is that having regard to the fact NARMADA BACHAO ANDOLAN v. U.0.1. [SINHA, J.] 847 that they are Project Affected Families (PAFs) and, thus, being oustees within A the meaning of the award made by Narmada Water Dispute Tribunal (NWDT), each one of them was entitled to the benefits of the rehabilitation package envisaged therein. Such entitlement, according to the applicants, must be extended to: (i) all major sons of the land-holders; B (ii) those who had also been temporary affected; and (iii) the heirs of land holders who died prior to the date of notification .. It was further contended 'that in the event, those who had been temporarily affected as also the major sons of the original land holders are C held entitled to the benefits of the rehabilitation package, the State of Madhya Pradesh be directed to allot suitable cultivable lands in their favour as the lands situated at Khajuri and measuring 13.40 hectares only would not be sufficient for that purpose. PROCEEDINGS BEFORE THE GRA: D The State contended that every oustee is offered land out of the land bank developed by it as per norms set out in NWDT Award and in the event any oustee does not intend to avail the same and finds the Special Rehabilitation Package (SRP) more attractive, he may do so. It was urged that the Government has adopted an uniform policy for all the oustees and, E thus: the claim for individual preferences cannot be acceded to. It was argued that it was not possible to allot or procure land for allotment as per choice of the applicants as the same is not required to be done under NWDT Award. It was submitted that it is not possible for the State to procure the land suggested by the oustees and as such either they should accept the land F allotted to them or avail the benefit of SRP. Before the GRA, an owner of fand in question, viz., Shri Mahesh Tiwari appeared and stated that he and his brothers were ready and willing to sell their landholdings admeasuring 116 acres situated at village Devla, at a market value which may be determined by the Narmada Valley Development G Authority (NVDA) according to the proced4re laid down in the Land Acquisition Act. Before the GRA, the parties appeared. A piece of land measuring about 13.40 hectares situated at village Khajuri was proposed to be allotted H 848 SUPREME COURT REPORTS [2005] 2 S.C.R. A by the State. The Petitioners of I.A. No. 11 in I.A. No. 7 consented thereto. The GRA, however, by reason of an order dated 11th September, 2004 having regard to the availability of farm land at K.hajuri which was offered by NVDA for rehabilitation of eligible oustees directed the State, having regard to the settlement arrived at by and between the parties to proceed to B rehabilitate the applicants at the appropriate stage in the light of the judgment dated 18. l 0.2000 passed by this Court by allotting agricultural lands to the eligible applicants from out of the farm land at Khajuri, according to their entitlement along with house sites at R&R side nearby and providing the civil amenities as mandated by the Award and other reliefs due to them according C to the provisions of the Award and the R.R. Policy of the State. The State of Madhya Pradesh, however, allotted only 5 land pattas and 7 house plots out of 23 applicants of village Picchodi and 5 land pattas and 14 house plots pattas to the 14 oustees of village Jalsindhi. The Applicants of both the interlocutory applications are, thus, before D us. ADMITTED FACT: It is neither in doubt nor in dispute that applicants herein are PAFs within the meaning of the Award of the Tribunal. It is also not in dispute E that acquisition of the land took place, so far as village Jalsindhi is con,cemed, in terms of the provisions of the Land Acquisition Act in the year 1291 whereas in respect of village Picchodi, it took place in 2000. It is furthermore not in dispute that the applicants belonging to both villages Picchodi and Jalsindhi come within the purview of the PAFs, at the height of 9 5 meters to 100 meters of construction of the dam. It also stands admitted that present F height of the dam is 110 meters. Indisputably, the State although intended to make a distinction between the temporary and permanent oustees but in its affidavit dated 6.5.1999 filed before this Court no such distinction was made and in fact it was emphasized G that even temporary submergence even for a short period can affect the oustees badly and, thus, no distinction should be made between temporary and permanent P AFs. Clause XI of the Award indisputably pertains to the directions regarding submergence, land acquisition and resettlement and rehabilitation of displaced H persons which would include both permanently and temporarily affected - ......... - NARMADA BACHAO ANDOLAN v. U.0.1. [SINHA, J.] 849 'persons.· RELEVANT CLAUSES OF THE AWARD: Clauses II(l ), II(2), IV (2)(i), (IV)(2)(ii), IV(2)(iv), IV(6)(ii), IV(7) and V(3)(iii) of Clause XI of the Award read as under: "11(1). Madhya Pradesh and Maharashtra shall acquire for Sardar Sarovar Project under the provisions of the Land Acquisition Act, 1894, all lands of private ownership situated lJelow the FRL + 138.68 m (455') of Sardar Sarovar and all interests therein not belonging to A B the respective States. If on the basis aforesaid, 75 per cent or inore land of a contiguous holding of any person is required to be C compulsorily acquired, such person shall have the option to cotnpel compulsorily acquisition of the entire contiguous holding. 11(2). Madhya Pradesh and Maharashtra shall also acquire for Sardar · Sarovar Project under the provisions of the Land Acquisition Act, 1894, all buildings with their appurtenant land situated between D FRL+l38.68 m (455') and MWL + 141.21 m (460') as also those affected by the back-water effect resulting from MWL+l41.21 m (460'). IV (2)(i). According to the present estimates the number of oustee families below RL 106.68 metres (RL 350') would be 30 spread over E 20 villages in Madhya Pradesh and 250 families spread over 20 villages in Maharashtra. Within six months of the publication of the decision of the Tribunal in the Official Gazette, Gujarat, Madhya Pradesh and Maharashtra shall determine by mutual consultation the location. of one or two rehabilitation villages in Gujarat to rehabilitate oustees F from areas below RL 106.68 metres (RL+350'). Gujarat shall acquire necessary lands for the rehabilitation villages and make available the same within two years of the decision of the Tribunal. Within six months of the decision of the location of the rehabilitation villages in Gujarat, Madhya Pradesh and Maharashtra shall intimate to Gujarat the number of oustee families from areas below RL I 06.68 metres G (RL 350') willing to migrate to Gujarat. For the remaining oustee families, Madhya Pradesh and Maharashtra shall arrange to acqui~e lands for rehabilitation within the respective States. (IV)(2)(ii). Madhya Pradesh and Maharashtra shall set up adequate establishments for land acquisition and rehabilitation of oustee families. H 850 A B SUPREME COURT REPORTS [2005] 2 S.C.R. Gujarat shall deposit within three months of the decision of the Tribunal Rupees ten lakhs each with Madhya Pradesh and Maharashtra in advance towards cost of establishment and rehabilitation in these States to be adjusted after actual costs are determined. Madhya Pradesh and Maharashtra shall start land acquisition proceedings for areas below RL 106.68 metres (RL+350') within six months of the decision of the Tribunal and convey the lands to Gujarat for project purposes within three years of the decision of the Tribunal. Within 18 months of the decision of the Tribunal, Gujarat shall make an advance payment of Rs. 70 lakhs to Madhya Pradesh and Rs. 100 lakhs to Maharashtra towards the compensation of land, to be adjusted after actual costs C are determined. IV(2)(iv). Gujarat shall acquire and make available a year in advance of the submergence before each successive stage, irrigable lands and house sit~s for rehabilitation of the oustee families from Madhya Pradesh and Maharashtra who are willing to migrate to Gujarat. Gujarat D shall in the first instance offer to rehabilitate the oustees in its own territory. E F G H IV(6)(ii). In no event shall any areas in Madhya Pradesh and Maharashtra be submerged under the Sardar Sarovar unless all payment of compensation, expenses and costs as aforesaid is made for acquisition of land and properties and arrangements are made for the rehabilitation of the oustees the reform in accordance with these directions and intimated to the oustees. IV(7). Allotment of Agricultural Lands - Every displaced family from whom more than 25 per cent of its land holding is acquired shall be entitled to and be allotted irrigable land to the extent of land acquired from it subject to the prescribed ceiling in the State concerned and a minimum of 2 hectares (5 acres) per family, the irrigation facilities being provided by the State in whose territory the allotted land is situated. This land shall be transferred to the oustee family ifit agrees to take it. The price charged for it would be as mutually agreed between Gujarat and the concerned State. Of the price to be paid for the land a sum equal to 50% of the compensation payable to the oustee family for the land acquired from it will be set off as an initial instalment of payment. The balance cost of the allotted land shall be recovered from the allottee in 20 yearly instalments free of interest. Where land is allotted in Madhya Pradesh or Maharashtra, Gujarat ..... I .... - NARMADA BACHAO ANDOLAN v. U.O.I. [SINHA, J.] 85 l having paid for it vide Clause IV (6)(i) supra, all recoveries for the A allotted land shall be credited to Gujarat. V(3)(iii). Gujarat shall at each successive stage of submergence intimate to Madhya Pradesh and Maharashtra the area coming under submergence at least 18 months in advance. The inhabitants of the area coming under the respective stages of submergence will be entitled B to occupy or use their properties without being required to pay anything for such occupation and use till a date to be notified by the State concerned which date shall not be less than six months before submergence. They must vacate the area by the notified date." The provisions of the Award are required to be read along with the C definitions of "oustee" and "family" contained in sub-clauses 1(1) and 1(3) thereof which read as under: "Oustee" An 'oustee' shall mean any person who since at least one year prior to the date of publication of the notification under Section . 4 of the Act, has been ordinarily residing or cultivating land or carrying D on any trade, occupation, or calling or working for gain in the area likely to be submerged permanently or temporarily. "Family" (i) A family shall include husband, wife and minor children and other persons dependent on the head of the family, e.g., widowed mother, (ii) Every major son will be treated as a separate family." E SUBMISSIONS: The learned counsel appearing on behalf of the applicants submitted that for the purpose of grant of benefit of rehabilitation package, no distinction can be made between temporary and permanent affected people and in this F connection our attention has been drawn to the stand taken by the Respondent - State in the earlier proceedings as also the award. It was submitted that the major sons of the PAFs being included in the definition of "family" and treated to be a separate family, they are entitled to allotment of a separate unit in terms of the award as also the judgment of this Court. The learned G counsel would further contend that those applicants who were adults on the cut-off date and whose fathers have passed away are also entitled to the benefit of the rehabilitation package. It was contended that the applicants must be given a choice as regard the site of the irrigable and cultivable lands. The submission of Mr. C.S. Vaidyanathan, learned senior counsel H 852 SUPREME COURT REPORTS [2005] 2 S.C.R. A appearing on behalf of the Respondents, on the other hand, is that the Award contemplates grant of benefits of rehabilitatiqn package only to such persons who were affected by reason of raising of height of the dam and, thus, all the PAFs are not entitled to grant of land for land. Further contention of Mr. Vaidyanatnan is that the entire family has to be treated as a unit and the adult sons of a landholder are not entitled to a separate unit unless they were B themselves land-holders. This question, according to Mr. Vaidyanathan, had not so far been specifically considered by this Court. According to·the learned counsel, Sub-clause IV (7) of Clause XI of the Award clearly specifies the persons who would be entitled to grant of alternative land. The Award, Mr. Vaidyanathan would argue, makes a C distinction between permanently affected persons and temporarily affected persons. D E POINTS FOR CONSIDERATION: (i) Whether there exists a distinction between temporarily and permanently affected persons in the NWDT Award as well as the judgment of this Court? · (ii) Whether adult sons are entitled to a minimum of 2 hectare of land as per NWDT Award and judgment of this Court? (iii) Whether those adult sons who became landholders since their: fathers passed away, are entitled to the benefit of alternate lands, in place of the acquired lands standing in the names of their deceased fathers? DETERMINATION: Permanent and Temporary Affected Families F Sub-clause IV (6)(ii) of Clause XI makes it imperative that submergence would not be allowed to take place until' complete settlement and rehabilitation of oustees is done which in view of the definition of 'oustees' would mean both permanently and temporarily affected persons. It has been the consistent stand on the State of Madhya Pradesh that G temporary affected persons would come within the purview of the expression PF As and there exists no distinction between permanent affected and temporary affected persons. We may, at this juncture, notice the pattern of rehabilitation of affected families in Sardar ·Saro var Project from the following chart relied on by the H Applicants: J - Date Total no. of PAFs Aug 29, 2001 5397 Nov 11, 2001 5379 Dec 08, 2001 5397 Jan 07, 2002 5397 Feb 08, 20~ 5397 "Rehabilitation of Sardar Sarovar Project Affected Families A Game of Numbers: MP's Diminishing PAF List Status of R&R at Dam Height EL 95 Mts of MP PAFs Claimed as Resettled Balance Option of Balance In MP In Guj. Total MP Gujarat 1182 2385 3567 1830 1378 452 1394 2381 3775 1603 782 821 1399 2418 3817 1580 1217 363 1466 2691 4157 1240 1150 90 1466 2691 4157 1240 1150 90 \ - Source of information Agenda of 50th Meeting of R&R Sub-Group RCNCA (CMs) meeting Agenda of 51 st meeting of R&R Sub-Group Minutes of 51 st meeting of R&R Sub-Group Ag~nda of 52nd z :> ~ :> 0 :> °' f; ::i:: :> 0 ~ 0 0 t'"' ~ :<:: c:: 0 iu:; ~ .?> - ..:.... 00 Vo w ·~ meeting of R&R Sub-"Group May 14, 2002 1883 1873 10 Minutes of 53rd Meeting of R&R Sub-Group June 31, 2002 1883* 967 916 1883 0 0 0 Quarterly Status Report, NCA Dec 31, 2002 1883* 967 916 1883 0 0 0 Half Yearly Status Report, NCA * The GoMP has resettled only those PAFs (i) whose agricultural land is coming under permanent submergence and (ii) whose habitation is coming under permanent or temporary submergence due to a l in 100 year flood. (end notes are taken directly from NCA documents). I. ~ ... ~I ~. ~ .....,,... . .) - - -- .I .. f .• .L - t 00 Vo .j:>. (/J c: "'O ~ 3\::: rn (") 0 c: ~ :;;; rn "'O 0 ~ (/J 'N 0 0 ~ N (/J n ~ ~ !.:.. f Status of R&R at Dam Height EL 95 Mts of MP PAFs Date Total Claimed as Resettled Balance Option of no. of Balance PAFs In MP In GuJ. Total MP Gujarat Aug 29, 200I 7913 I327 2584 3911 4002 2554 I448 Nov I l, 2001 7913 1587 2684 4271 3570 1902 1668 Jan 07, 2002 7913 1670 3360 5030 2883 2693 190 Feb 08, 2002 7913 1670 3360 5030 2883 2693 190 June 31, 2002 3071* 1990 1036 3026 45 45 0 Source of infonnation Agenda of 50th Meeting of R&R Sub-Group RCNCA (CMs) meeting Minutes of 51 st meeting of R&R Sub-Group Agenda of 52nd meeting of R&R Sub-Group Quarterly Status Report, NCA z > ~ > 0 > to > n :i:: > 0 ~ 0 0 ~ :<: c: 9 en z ~ '- ..:....., 00 Vo Vo Nov 14, 2002 3710* 2443 ll98 3641 69 69 0 Minutes of 54th Meeting of R&R Sub-Group Dec 31, 2002 3710* 2443 1243 3686 24 24 0 Half Yearly Status Report, NCA May 13, 2003 3692* 2434 1258 3692 0 0 0 Minutes of 55th Meeting of R&R Sub-Group June 31, 2003 3692* 2434 1256 3692 0 0 0 , Half Yearly Status Report, NCA *PAFs whose lands are temporarily under submergence due to l in 100 flood have not been considered for R&R - .... --r 1 ..,,-, T t- ~· -' 00 Vl °' Ul c: -0 ~ $'. t'T1 (") 0 c: ;;i::i -l ;;i::i t'T1 6 ;;i::i (;l 'N 0 0 V• '" r.r. (; ;;;:: 'r - • f Status of R&R at Dam Height EL 95 Mts of MP PAFs Date Total Claimed as Resettled Balance Option of no. of Balance PAFs In MP In Guj. Total MP Gujarat Aug 29, 2001 12681 1809 2802 4611 8070 5489 2581 Nov 11, 2001 12681 2005 2896 4901 7708 5288 2420 Feb 08, 2002 12681 2079 3653 5732 6949 5219 1730 Nov 14, 2002 12681* 2175 3628 5803 6878 5425 1453 ~ Source of information Agenda of 50th Meeting of R&R Sub-Group 420 RCNCA (CMs) meeting Agenda of 52nd meeting of R&R Sub-Group Minutes of 54th Meeting of R&R Sub-Group f ~ ~ ~ tl:l > (') S2 0 ~ 0 0 t""' ~ : ~ ~ °' > (1 ~ 0 ~ 0 ~ ;: c: ~ Vl z ~ 2: 00 Vi \0 36. Badrilal s/o LH - Kl ya 37. Jagan s/o LH - Kalya 38. Sagar w/o LH - Kalya 39. Vediya s/o LH l - Dariyav 54. Shankar LH l l.154 Rukhadiya 55. Sonibai -LH - Rukhadiya 56. Shambu LH - 0.664 Mo ti a 216 Pratap LH - 1.056 Tersingh 278. Pokhar LH 1 3.152 Girwar 279. Pun ya LH 1 - Girwar 281. Buda Banga LH l 0.615 j - - - - - l - l l.154 - - - 0.664 - l.056 1 3.152 - - l 0.615 ' Co-sharer of 34 co.:sharer of 34 Co-sharer of 34 Co-sharer of 34 - Co-sharer of 54 - - - - - 00 0\ 0 r/J c:: "'O ~ 3:: tTl (j 0 c:: ~ "° tTl 6 ~ r/J t:3 0 0 ~ N r/J h ~ ll 282. Babu J:Sanga LH I 1283. Dhanibai LH - Bang a 284. Ratansingh LH 1 Ranchod 285. Radheshyam Adult son - Ra tan 286. Sitaram Adult son - Ra tan 287. Govind LH 1 Ramsingh 288. Sitaram Adult son - Govind 364. Lanka Pokhar LH - - I - - - 4.078 1 4.078 - - - - - - 1.13 1 1.13 - - - 0.243 - 0.243 r f co-sharer ot 28 l Co-sharer of 281 - - - - - - ~ > ~ c:i > (") ::c: > 0 ~ 0 r ~ ; °' > n :I: > 0 ~ 0 ~ ~ c:: 0 ~ en z ~ .:::: 00 0\ w Status of Land Acquisition Awards in the State of Madhya Pradesh at EL 95 m is as under: "(i) For Agricultural Land SI No. Tehsil No. of Awards No. of Notification issued under villages declared villages Balance for Awards Section 4 Section 6 Section 9 3. Barwani 20 16 4 4 4 4 (ii) For Abadi Land SI No. Tehsil No. of Awards No. of Notification issued under villages declared villages Balance for Awards 3. Barwani 16 12 4 4 4 3" Remarks Remarks 00 0\ +:>. {/) c:: '"ti ~ ~ tTJ (") 0 c:: ~ :;::i tTJ 25 ~ {/) 'N 0 0 v. ~ N {/) h ~ r. ---- NARMADA BACHAO ANDOLAN v. U.O.I. [SINHA, J.] 865 " Despite the same, the State now contends: "14.1 That the allegations in the application (l.A.4) is that Government of M.P. is arbitrarily drawing distinction between temporary and permanent submergence and is not doing rehabilitation as mandated A in NWDTA, and the directions given in the judgement of this Hon'ble Court. According to sub-clause Il(l) (Chapter IX, Clause XI of B NWDT A), only such lands of private ownership have to be acquired which fall below FRL (138.68 M). Agriculn:ral lands affected by backwater (afflux) are not to be acquired.