1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Writ Petition No.2076 of 2002. Abid Alim Akhjtar Ali & Another. v State of Mah., & others Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri R. K. Desj[amde, Advocate for the petitioner. Coram : B.H. Marlapalle and A.H. Joshi, JJ. Dated : 22nd October, 2008. 1. Heard Mr. Deshpand3e along with Mr. S. P. Bhandarkar the Learned Advocates for the petitioners. 2. The petitioner no.1 claims to be a Social Worker and is interested in the welfare of the farmers including those who have been displaced on account of acquisition of their land for industries, projects by the State Government. The Petitioner no.2 is a resident of Village Korpana, District Chandrapur, and is one of the projected affected persons on account of setting up of the Factory by the Respondent No.2. The Government of Maharashtra had offered special incentives for the industrial units to set up their plants in the backward region of the State 2 of Maharashtra, and first such policy was framed in the year 1964. It was revised in the year 1988, and on 7-5-1993, the State 'Government had issued Government Resolution for offering a revised package “Dispersal of Industries Package Scheme of incentive 1993”. By this Scheme, better incentives were offered and more particularly exemption/concession in the payment of sales tax. This scheme was further revised on 11-8-1998 by the State Government, and it was called “package scheme of incentives for 1993 from large industrial units.” The industries investing within the range of Rs.500 to 750 crores and moving to the backward area like Konkan, Marathwada and Vidarbha region are entitled for the benefit of revised scheme 1998, and it appears that the Respondent No.2 Company decided to put up a Cement Factory as well as Captive Power Generation Plant in Chandrapur District of Vidarbha region by taking advantage of the incentives offered by the Government of Maharashtra by its G. R. dated 11-8-98. Both Units have been started and the Respondent No.2 claims that it has invested close to Rs.700 crores, and has offered employment to about 900 persons directly and another 2500 indirectly. It 3 has also set up a Captive Power Generation Plant. It is under these circumstances that the petitioners have approached this Court praying for following reliefs. (i) to quash and/or set aside the impugned action of Respondent No.1 in diverting water from Pakadiguddam Tank Project to Respondent Nos.2 & 3's cement and power plants at Upperwahi in Chandrapur District; (ii) to quash and/or set aside the impugned decision of Respondent NO.1 to allow Respondent Nos.2 & 3 to set up their own captive power plants; (iii) directing RespondentNos.2 & 3 to pay compensation to all land oustees at the rate of Rs.1,50,000/- per acre as paid by other government companies as well as private companies in similar circumstances; (iv) directing Respondent Nos.2 & 3 to provide permanent employment to all land oustees or in any event to at least one person from each such affected family; (v) to quash and/or set aside the 1998 Amendments i.e. G. R. No.IDL 1096 (121)/LND-8 dated 11.08.1998 (Annexure “B” hereto) to the Package Scheme of Incentives, 1993. 4 In so far as the prayer clause (ii) is concerned, both the plants have been set up and in fact, they were in operation when this petition was filed. The challenge to the GR dated 11-8-98 has already been turned down by us in Writ Petition No.1815/2002 vide our order dated 15-10-2008, and therefore, prayer clause (ii) (v) and (vi) have already been adjudicated upon, and answered in terms of the said order. So far as the relief of payment of compensation to all the land owners concerned, it is clear from the Orders passed by this Court from time to time in the instant petition that the State Government, though belatedly, has disbursed the compensation amount as per the awards passed by the Land Acquisition Officer, and some of the farmers have already submitted applications for enhancement of the compensation under Section 18 of the Land Acquisition Act 1894. Undoubtedly, the reference Court will as and when these applications are forwarded by the Collector to it, will decide the same on their own merits, and also decide the market rate with reference to the date of possession or the date of award passed as the case may be, and in keeping with the provisions of law. We are also informed that the Respondent 5 Company has employed 305 persons in its employment from the category of the project affected persons, and representing the families whose land was acquired, and therefore, these are the steps taken to provide the permanent employment to the members of the families whose land has been acquired for the Industrial projects. We do not have any statistics before us of the eligible persons and representing project affected families and who have not yet been the beneficiaries of employment with Respondent Company, and therefore, nothing further survives in prayer clause (iv). Now coming to prayer clause (i), we have noted that the Respondent no.1 is supplying water to the respondent company for its Cement Plant as well as Captive Power General Unit in terms of the agreement dated 18-9-2001 signed between Respondent no.3 Company on one hand and the Executive Engineer Chandrapur Medium Project Division NO.1 on the other. As per the said agreement, the Company had applied to the Vidarbha Industrial Development Corporation as well as the Government of Maharashtra for permission to draw 3.03 Mm cubic meters of water per annum from Upparwahi Pakadi-gudam Reservoir 6 and the Government had agreed to grant the said permission. Initially, a sum of Rs.14,55,000/- was paid by way of security to the State Government by Respondent No.2 & 3 Companies and subsequently, an amount of Rs.5,60,50,000/- was paid as Capital contribution towards reservoir of 3.03 Million cubic waters in the Reservoir. Pursuant to the said agreement in the year 2004- 2005, the following quantity of water has been supplied to the Respondents Companies. Sr. No. Year Water supplied in cubic millions. 1. 2002 1.04 million cubic 2. 2003 1.16 million cubic 3. 2004 1.31 million cubic 4. 2005 165 million cubic This Court had directed to National Environmental Engineering Research Institute Nehru Marg Nagpur vide its order dated 24-11-2004 to assess the impact of diverting the irrigation water from PTP (Pakadiguddam Tank Project) to Cement and Power Plant of Respondent No.3 Company (MCW). The said Institute has submitted its report dated 5-10-2005. Para 6.4 of the said report deals with the utility of water for irrigation and the following relevant 7 observations do indicate that the contract for supply of water to the MCW has not affected adversely because of following reasons: These observations adversely reflect on the utilization of irrigation potentials of PTP and reveal inadequacies in command area management.” “The area irrigated during 1993-97 was only 55 hectors and was 57 hectors during 19978-98. The supply of irrigation water during this period covered only 1.86 percent of irrigable land in command area and much less than the design capacity of 2962 hectors. The PTP water thus remained unutilized for 5 years. During the period of 1998-2001, the maximum coverage of irrigated land was 2583 hectors in the year 2000-01 and the water yield of PTP was irrigated land was 2583 hectors in the year 2000-01 and the water yield of PTP was consistently 11.797 Mm. In the year 2002-03 the yield was 9.868 Mm i.e. 83.65% of the maximum yield of the dam but the area irrigated was only 24.68% of the designed uirrigation capacity. The large variation in the land irrigated in spite of the consistent yield of 11.797 Mm could not be explained by the Irrigation Department. As per data presented in Table 6, the area irrigated in the year 2002-03 was 801 hectors with 7.127 Mm of water and the area irigated was 1500 hectors in the year 2003-04 with 7.118 Mm of water. Thus, almost double the area was irrigated in the year 2003-04 as compared to the previous year with same quantity of water. The report submitted by the NEERI thus, not even prima facie make out a case that the agreement, which 8 is a subject matter of challenge in this petition has in no way adversely affected the irrigation potential or the commitment made for the irrigation to the acrage that was to be brought within the command area of PTP. Undoubtedly, the suggestions made in the said report will have to be considered by the State Government for improvisation in the irrigation facilities etc. and so as to increase the acrage on the irrigation. Having regards to the fact that the Reservoir Storage has been on an average at 11.797 millions of cubic meters and the supply committed to Respondent no.2 vide impugned agreement being at 3.03 million cubic meters, we do not find any danger posed by the said agreement to the irrigation capacity of PTP, and as has been noted in the said report, the actual supply to Respondent no.3 has not been even 50% of the committed quota during the period of 3 years i.e. 2002 to 2004. We are therefore, satisfied that no further relief as prayed for in this 9 petition can be granted, and hence, the petition must fail, and same is hereby rejected. At the same time, we direct the State of Maharashta through the Principal Secretary in the Department of Industries and Energy Government of Maharashtra to place a copy of the report submitted by NEERI on 5-1-2005 before the Chief Secretary so as to ensure that the suggestions made in the said report for improvisation of Irrigation for maintenance of ecological balance as well as aquatic are taken by the State Government as early as possible. JUDGE JUDGE /Muley/