- (1.) All these appeals relate to the establishment of the Omkareshwar Dam on the Narmada river in Madhya Pradesh. As these appeals are inter-connected and have been filed against interim orders passed by the High Court in the same writ petition, they have been heard together and disposed of by a common judgment. However, for convenience Civil Appeal Nos. 2115-2116 of 2011 are dealt with first.
(2.) These appeals have been preferred against the judgment and order dated 21.2.2008 passed by the High Court of Madhya Pradesh at Jabalpur in Writ Petition No. 4457 of 2007, 'Narmada Bachao Andolan v. State of Madhya Pradesh & Anr.', wherein the High Court as an interim measure, has issued directions, inter-alia, for allotment of agricultural land to the displaced persons in lieu of the land acquired for construction of the dam in terms of the Rehabilitation and Resettlement Policy (hereinafter called as 'R & R Policy') as amended on 3.7.2003. The High Court direction applied even to those oustees who had already withdrawn the compensation, if such oustees opt for such land and refund 50% of the compensation amount received by them. The balance cost of the allotted land would be deposited by the allottees in 20 equal yearly installments as stipulated in clause (5.3) of the R & R Policy, and to treat a major son of the family whose land has been acquired as a separate family for the purpose of allotment of agricultural land.
(3.) FACTUAL MATRIX : Facts and circumstances giving rise to these cases are as follows: (A) The Narmada river starts at Amarkantak. It flows through Madhya Pradesh for 1077 km, then forms a common boundary in Maharashtra for 74 km (35 km with MP and 39 km with Maharashtra) and then passes through Gujarat for 161 km before meeting the Arabian Sea after a total length of 1312 km. The Narmada Water Disputes Tribunal apportioned the water in the Narmada between Madhya Pradesh, Gujarat, Maharashtra and Rajasthan, subject to review after 45 years. (B) The State of Madhya Pradesh, conducted a survey in 1955 for the establishment of hydro-power projects in the Narmada basin at different sites including Barwaha (Omkareshwar Project). In 1983, Narmada Valley Development (Irrigation) Department (hereinafter called NVD) was set up and further studies were conducted for the establishment of hydro-power projects. (C) The Omkareshwar Dam - an intra-state project for generating 520 mega watts of power, which also involved the irrigation of 1.47 lakh hectares of agricultural land, was approved by the State Government, with an assessment that on the completion of the project, 30 villages would be submerged at the full reservoir level i.e. 196.60 mtrs. (D) The Government of Madhya Pradesh framed a rehabilitation and resettlement policy in 1985 (hereinafter called 'R & R Policy') for the oustees of all the Narmada projects in the State. The said policy was amended from time to time as is evident from the R & R Policies dated: 9th June, 1987; 5th September, 1989; 7th June, 1991; and 27th August 1993. The said policy provided for the allotment of a minimum of 2 hectares of agricultural land; irrigation facilities at government cost; grant-in-aid for small and marginal farmers and SC/ST families; and to meet the entire cost of the allotted land. The policy further provided that the allotment of agricultural land would be carried out much in advance, before dam construction reached crest level. The land required for allotment would be procured in the common area from the farmers having holdings of more than 4 hectares of land. The State authorities obtained environmental clearance for the Omkareshwar project from the Ministry of Environment and Forest on 13.10.1993. The Ministry of Welfare granted clearance on 8.10.1993. The Planning Commission also granted clearance on condition of compliance with welfare and environmental clearances vide order dated 25.5.2001. The Central Electricity Authority accorded techno-economic clearance under the provisions of Electricity (Supply) Act, 1948 on 24.7.2001. The Government of India approved and granted financial concurrence from Public Investment Board of the Planning Commission for this project on 17.5.2002. Forest clearance was granted on 20.8.2004 under the provisions of Section 2 of the Forest (Conservation) Act, 1980 for the diversion of 5829 hectares of forest lands. Therefore, there had been various statutory and non-statutory clearances from the authorities. (E) The R & R Policy further stood amended on 3.7.2003, to the effect that agricultural land would be offered to the oustees "as far as possible"; and not to those who would make application in writing to receive compensation for their acquired land. (F) Construction of the Omkareshwar dam began in 2002 and stood completed in October, 2006. A large number of families had been uprooted on construction of the dam upto its 190 mtrs. height. For the dam site, a huge area of land had been acquired under the provisions of the Land Acquisition Act, 1894 (hereinafter called as 'Act 1894'). The displaced persons were allegedly not offered the land under the R & R Policy, as amended on 3.7.2003, rather compensation for their land was deposited in their accounts. (G) Narmada Bachao Andolan, respondent No.1 (hereinafter referred to as 'NBA'), an action group, had been espousing the grievances of displaced persons by filing Public Interest Litigations (hereinafter called 'PIL') before the High Court/further to this Court from time to time and a large number of orders had been passed by the courts to redress the grievances of the oustees. When the decision was taken to raise the height of the dam, NBA filed writ petition No.4457 of 2007 before the High Court seeking a number of reliefs, inter-alia, to stop all eviction; directions for serving of life supplies such as drinking water and electricity; not to take any other coercive measures, to stop closure of the radial gates of the Omkareshwar dam above crest level of EL 179.60 M; and to stop the blocking of the sluice gates below crest level, until all Project Affected Families (hereinafter called 'PAFs') were rehabilitated as per the R & R Policy. Further reliefs sought included the issuance of appropriate directions for an assessment by the Grievance Redressal Authority (hereinafter called 'GRA') for the Omkareshwar Project of the status of relief and rehabilitation of the oustees affected at Full Reservoir Level (hereinafter called 'FRL') and Back Water Level (hereinafter called 'BWL') within a stipulated period. (H) During the pendency of the writ petition in pursuance of the orders passed by the High Court from time to time, a large number of reports/interim reports were furnished by the authorities concerned. The High Court after considering the said reports and submissions advanced on behalf of the parties passed the impugned judgment and order dated 21.2.2008. The High Court issued a large number of directions as interim measures, including the direction for allotment of land in lieu of land acquired and to treat the major sons of the family, as independent families for the purpose of allotment of agricultural land. Hence, these appeals.;