Madhya Pradesh High Court
Ms. Chittaroopa Palit vs The State Of Madhya Pradesh on 18 August, 2015
Author: Sushil Kumar Gupta
Bench: Sushil Kumar Gupta
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
W.P.No.13693/2015
Chittaroopa Palit
Vs.
State of M.P. & Others
Present: Hon'ble Shri Rajendra Menon, J. &
Hon'ble Shri Sushil Kumar Gupta, J.
______________________________________________________
Ms. Chittaroopa Palit, petitioner in person.
Shri R. N. Singh, learned Senior Counsel with Shri Arpan
J. Pawar for the respondents.
Shri Swapnil Ganguly, learned Govt. Adv. for the
State.
_________________________________________________
ORDER
(18/8/2015) In furtherance to the interim order that was passed on 14.8.2015, parties are heard on the question of interim relief based on the affidavits, additional pleadings and submissions made.
2. The dispute in question which is canvassed by the petitioner in this writ petition pertains to construction of the Upper Beda Dam on river Beda. Petitioner has filed this writ petition, pro bono publico and it is her contention that the 2 respondents are filling up the dam in question and its reservoir above 310 meters upto 317 meters without notice and without completion of the acquisition, rehabilitation and re-settlement measures, as this is in violation to Article 310-A, 14 and 21 of the Constitution and the mandate of the Supreme Court, the same be prohibited. Petitioner who appears in person, took us through the rehabilitation and resettlement policy (R&R Policy), the judgment of the Supreme Court in the case of State of M.P. Vs. Narbada Bachao Andolan - 2011(7) SCC 639, i.e. Narmada Bachao Andolan - I, various observations made by the Supreme Court therein and tried to indicate that right to receive the benefits of the rehabilitation scheme and the R&R Policy is the fundamental right of the land oustees whose land get submerged due to construction of the dam and until the rehabilitation package is completed and all benefits thereof given to the land oustees, the respondents cannot be permitted to fill up the dam so as to bring the area in question under submergence, resulting in displacement of the inhabitants of the area. It is said that even though respondents have filled up the reservoir upto the limit of 315.5 meters now, they be restrained from making any further increase in the level of the dam. Accordingly, in para 12 the following interim relief is sought :-
"12. Interim order, if prayed for :-
In the light of the facts and law mentioned above, the illegal submergence and violation of Article 300 A, 14 and 21 of the Constitution, the respondents may be directed to :-3
(i) maintain the status quo regarding the level of the Upper Beda dam reservoir at the present water level EL 315.5 M.
(ii) Restore status quo ante by reducing the water level in the reservoir of the Upper Beda Dam to 310 M, so that the oustees can continue to live in their villages and cultivate their lands until the completion of the R&R measures including allotment of land, house plots, grants, and decision and redressal of the grievance of the oustees by the Grievance Redressal Authority and the implementation of the GRA orders by the State Government and the project authorities.
3. Shri R. N. Singh, learned Senior Counsel refuted the aforesaid, took us through the findings recorded by a Division Bench of this Court in an earlier round of litigation between Narmada Bachao Andolan Vs. State Government, a detailed order passed by the Division Bench in W.P. NO.1360/2009 and submits that after considering similar contentions advanced, the Division Bench rejected identical grounds and issued certain directions after making certain observations in para 45 and 46. He argued that in the said order, this Court permitted the respondents to install radial gates, block sluice gates and to fill up the Upper Beda Dam upto level of 310 meters. Thereafter, they were granted liberty to approach this Court seeking permission to fill up the dam upto 317 meters. It is submitted that against this order petitioners therein went to Supreme Court and by a judgment rendered on 26th June, 2011 reported in (2011)12 SCC 333, the petition filed by Narmada Bachao Andolan was dismissed and after dismissal of the said SLP, it is 4 said that now for the same relief petitioner who is also an active worker of Narmada Bachao Andolan is again reagitate the matter. He further points out that in pursuance to the order passed in the earlier writ petition, granting liberty to the State Government to seek permission to increase to fill the reservoir upto 317 meters, MCC No.1623/2014 was filed by the respondents and in the said proceedings, the petitioner herself objected to the maintainability of the said application and came out with a case that after orders were passed by the Supreme Court in the case of Narmada Bachao Andolan Vs. State of M.P. (supra) the order passed by this Court in W.P. No.1360/2009 gets merged with the order of Supreme Court and therefore, application for review is not maintainable. Finally, Shri R. N. Singh, learned Senior Counsel invites our attention to writ petitions filed by some individual oustees being W.P. No.13443/2015, W.P. 13506/2015, W.P. 13507/2015, & 13508/2015 and a detailed order passed by this Court on 13.8.2015 rejecting the prayer for interim relief and act of the present petitioner in filing this petition on the very next date claiming the same relief which was rejected by this Court at the instance of the aggrieved persons vide order dated 13.8.2015. Accordingly, Shri R. N. Singh, learned Senior Counsel submits that for the present, no interim relief can be granted to the petitioner.
4. We may point out that even though a detailed and elaborate submissions were made by the parties at the time of hearing, however, for the present for considering the question of interim relief, we need not go into all these in detail. The only objection raised by the petitioner is that without completion of the entire rehabilitation scheme and package, filling up of dame 5 to the level of 317 meters which would result in displacement of many oustees is not permissible.
5. While considering the question in the earlier writ petition i.e. W.P.No.1360/2009 when similar arguments were advanced by the petitioner, a Division Bench of this Court in its order took note of all these submissions and finally in para 45 and 46 dealt with the matter in the following terms :-
"45. The project affected families have received compensation in the year 2005. Since 2005 till filing of the petition on 2.9.2008, no grievance of any sort was made. The instant writ petition was filed before this Court after approximately six months i.e. 2.9.2008 from the date of issuance of notification dt.5.3.2008 regarding submergence of 4 villages namely Sonud, Nimit, Bedhaniya-Khurd and Khamid. In case any project affected person has a grievance, that benefit of rehabilitation and resettlement policy has not been extended to him, he is at liberty to approach the Rehabilitation Officer and in case he is aggrieved by the decision by the Rehabilitation Officer, under clause 12 of the rehabilitation and resettlement policy, he has the remedy of appeal before the Collector, which has to be decided by the Collector within a period of three months. Apart from this, Grievance Redressal Authority has also been constituted by the State Government vide notification dt.30.8.2001 and its jurisdiction has been extended to all the projects in 6 the State of Madhya Pradesh vide notification dated 11.6.2002.
46. We may now come to the submission made on behalf of the petitioner that the respondent should not be permitted to fill up the Dam as rehabilitation and resettlement policy of land oustees is not complete. It is worthwhile to note that Upper Beda Dam is already complete. It has been constructed with an expenditure of over Rs.200 Crore. It is a fait accompli. The Dam has been constructed with a view to provide irrigation facility to farmers of Khargone District. The area for which the project has been constructed, is a backward area with 68% population consisting of Scheduled Tribes, 4% of Scheduled Castes and remaining 28% of other castes. The project shall provide irrigation to 9917 hectares of agricultural land. We have been informed that canal network to irrigate 2600 hectares of land has already been completed. In case respondent is not permitted to fill up the Dam, the farmers of the backward area would be deprived of the benefits for which they have waited long. In such a case, individual rights or interests must subserve larger public interest, which lies in permitting the respondent to fill up the Dam. As stated supra, no extra-ordinary situation exists with regard to implementation of rehabilitation and resettlement policy and; therefore, larger public interest would be served in permitting the respondent to fill up the Dam. Thus, the contention of the petitioner that 7 respondent should not be permitted to fill up the dam, deserves to be rejected.
(Emphasis Supplied) Thereafter, when the matter travelled to the Supreme Court in the case of Narmada Bachao Andolan (supra), the Hon'ble Supreme Court held that as far as the question of rehabilitation and various other aspects are concerned, all these factors have been considered in the case of State of M.P. Vs. Narmada Bachao Andolan - (2011)7 SCC 639 and the matter is decided in identical terms.
6. As far as increase in the dam is concerned, no specific direction was issued by the Supreme Court. In the case of State of M.P. Vs. Narmada Bachao Andolan i.e.N.B.A. No.1 (supra), the directions issued by the Supreme Court pertains to grant of benefit of rehabilitation to the similar dam affected persons pertaining to Omkareshwar project and in that case also, similar arguments were considered and after taking note of various aspects of the matter, the Hon'ble Supreme Court in the said case in para 183 and 188 decides the matter in the following terms :-
" 183. These appeals involved two issues namely, (i) allotment of land in lieu of land acquired; and (ii) entitlement of major son to get the allotment of land as a separate family. So far as the first issue is concerned, in respect of the same, we hold that in view of the provisions contained in R & R Policy, the State Authorities are under an obligation to allot 8 the land to the oustees "as far as possible". In case an oustee has not accepted the compensation/SRG or has any grievance in respect of area/quality/location of land allotted or for any other entitlement, he may approach the GRA and the GRA will adjudicate upon the issue and pass an appropriate order in individual cases after giving an opportunity of hearing to all the parties concerned. Needless to say, the person aggrieved by the order of GRA shall be entitled to approach the High Court for appropriate relief. However, in case of private person, the application/petition would be in the name of that individual person duly supported by his affidavit. So far as the issue of entitlement of major son for allotment of land as a separate family is concerned, our conclusion is in the negative. In other words, there is no such entitlement.
188. We have been given to understand that on the Narmada River, in the State of Madhya Pradesh, in all 29 major and minor projects are contemplated. Some of them have already been completed, but on account of stay order by the court/Authority some projects could not be completed. It is unfortunate that in spite of the fact that a huge amount has been spent, yet no one is able to reap the fruits of investment. The State should take immediate steps to get the final verdict in such cases or stay vacated and start the project at the earliest. "
(Emphasis Supplied) 9
7. Now it is not in dispute that with regard to the grievance of the petitioner in this case, the matter is pending before the Grievance Redressal Authority and petitioner say that until and unless Grievance Redressal Authority does not decide the mater the land oustee cannot be removed from the area. About 54 land oustees have approached this Court in the writ petitions as indicated herein above, wherein after considering the similar arguments we have refused to grant any interim relief to them. Once to the land oustees, 54 in number, interim relief was denied by us, we see no reason as to how interim relief can be granted at the instance of the petitioner, particularly, when in the affidavits and additional affidavits filed by the respondents, it is indicated that most of the oustees have been granted compensation and only in one village i.e. some 4 or 5 families are occupying the area and they are also in the process of shifting. In the order passed in earlier writ petition i.e. W.P. No.1360/2009, the Court took note of all these aspects and permitted the respondents to raise the level of the dam to 310 meters and thereafter, with permission of Court to raise it upto 317 meters after the canal network is over. From the documents filed by the respondents it is seen that work for the canal network is already over in June 2014 and taking note of all these circumstances, merely because some persons are holding the possession even now, after compensation and all other benefits have been granted, even though disputed by the petitioner. we are not inclined to grant any interim relief, as it will not be in public interest now particularly in light of the observations made by this 10 Court in para 45 and 46 in W.P.No.1360/2009 and by the Supreme Court in N.B.A.-I (supra).
8. Accordingly, in the facts and circumstances of the case, keeping in view the orders passed in the previous writ petition which is in fact affirmed by the Hon'ble Supreme Court, we see no reason to grant any interim relief. The prayer for interim relief stands rejected and consequently, the interim protection granted by us on 14.8.2015 also stands vacated.
List the matter after four weeks.
c.c. as per rules.
(Rajendra Menon) (Sushil Kumar Gupta)
Judge Judge
mrs.mishra