Case: Narmada Bachao Andolan Vs. State of Madhya Pradesh &amp; Another

(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.The facts and circumstances giving rise to this appeal have already been elaborately mentioned in connected Civil Appealof 2011, thus, the same are not repeated here and we proceed to decide the issues involved12 of 2011102. These appeals have arisen out of the impugned order dated 23.9.2009, passed by the High Court of Madhya Pradesh at Jabalpur, in Interlocutory Application Nos. 4679 and 4804 of 2009 in Writ Petition No. 4457 of 2007, by which the High Court has allowed the said applications and directed the appellants to rehabilitate the oustees so far as the land measuring 284.03 hectares in the 5 villages, namely, i.e. Dharadi, Nayapura, Guwadi, Kothmir and Narsinghpura is concerned, and not to withdraw the acquisition proceedings in respect of the said area.

Reasoning: The rehabilitation has to be done to the extent of the displacement. The rehabilitation is compensatory in nature with a view to ensure that the oustee and his family are at least restored to the status that was existing on the date of the commencement of the proceedings under the Act 1894. There was no intention on behalf of the State to have awarded more land treating a major son to be separate unit. This would otherwise bring about an anomaly, as is evident from the chart that has been gainfully reproduced hereinabove. The idea of rehabilitation was, therefore, not to distribute largesse of the State that may reflect distribution totally disproportionate to the extent of the land acquired. The State has, therefore, rightly resisted this demand of the writ petitioners and, in our opinion, for the High Court to presuppose or assume a separate unit for each major son far above the land acquired, was neither justified nor legally sustainable.In effect, the major son would not be entitled to anything additional as his separate share in the original holding and it will not get enhanced by the fictional definition as stated in the impugned judgment. The major son would, however, be entitled to his share in the area which is to be allotted to the tenure holder on rehabilitation in case he is entitled to such a share in the law applicable to the particulardirection given by the High Court in paragraph 64 (i) of the judgment, is modified to the extent that the displaced families who have not withdrawn SRG benefits/ compensation voluntarily and submit applications for allotment of land before the Authority concerned, shall be entitled to the allotment of agricultural land "as far as possible" in terms of the R & R Policy, and for that purpose, the appellants must make some government or private land available for allotment to such oustees if they opt for such land and agree to ensure compliance with other terms and conditions stipulated therein.In case suitable land is available in the land bank, the same would be offered to such oustees. In case, dispute of suitability of land is raised, it would be adjudicated upon and determined by the GRA. The authorities must render all possible assistance to the oustees to purchase the land by negotiations. In case the land is not available as mentioned hereinabove, the State must ensure compliance of Clause 5.4 of the R & R Policy to the full extent in the cases of the Scheduled Castes/Scheduled Tribes and to the extent of 2 hectares in case of other marginal farmers. In case the extent of the land acquired is more than 8 hectares, the same shall be paid according to the provisions contained therein.The Government must continue to search for additional land than what is already available in the land bank and to find out the means of its purchase for allotment to the oustees. The Government should also ensure that the allocated land is not encroached upon by the unscrupulous persons.Direction given by the High Court to allot agricultural land to major sons of the oustees in Paragraph 64 (iii) of the impugned judgment is hereby setare of the considered opinion that no order is required on the IA Nos. 196-210, 211-225 and 241-255 of 2011 filed under Section 340 of the Code of Criminal Procedure, 1973, by both the parties, as dealing with the said applications would not serve any purpose. More so, the IA Nos. 226-240 of 2011 filed for modification of the order dated 5.4.2011. Thus, all the said IAs stand disposed of.INSTANT CASE:80. REHABILITATION PROVISIONS AS PER NWDT AWARD ANDCOMPARATIVE PROVISIONSTable81. IMPLICATIONS IF IMPUGNED JUDGMENT IS UPHELDTableIt is apparent that the directions of the Honble High Court regardingwould lead to grave inequity, and thereby likely to cause undue enrichment of some categories of oustees:a. Sons of land owning class get better rights than their fathers.b. Sons of land owning class get better rights than those of land less class.c. Even though everybody loses same measure of land, some are not entitled to any land while for some it becomes an unimaginable bounty or proves to be bonanza.82. In case, the view taken by the High Court is upheld, it would have very serious repercussions for the reason that no land had been acquired wherein a major son can independently claim compensation as a matter of right. In such an eventuality, the question of retaining 50 per cent of the compensation could not arise. If it were allowed, it would create hostile discrimination against others like landless persons who have been found to beby the High Court in the impugned judgment. The High Court has added words like "larger land owning family" and "bigger family" to justify the relief given to major sons even though such terms do not appear in the R & R Policy or either of the judgments given by this Court earlier.The charts hereinabove make it crystal clear that there was no provision for allotment of land to major sons in the NWDT Award. Obviously, it has wrongly been mentioned in the earlier judgments of this Court by inadvertence. This requires correction as such an error cannot be perpetuated. The claims of the respondents, if accepted, and the High Court judgment if upheld, would lead to unwarranted results. For some of the families having a large number of major sons, it would lead to a level of unjust enrichment that could never have been envisaged by the Government of Madhya Pradesh. The view taken by the High Court gives rise to(a fiction) of partition of agricultural land amongst theand his major sons. Such a concept would defeat the right of minor sons for partition or claiming the share in the agricultural land and also lead to uncertainty as to whether 75% of the total land of the major son, after partition stood acquired. The plea of discrimination is not available to such major sons of the families, whose land has been acquired for this project, as they cannot be put at par with the major sons of the oustees of the Sardar Sarovar Project. Even if the plea is tenable, such discrimination cannot be held to be conscious or intentional as the State is willing to rectify the mistake. The State has filed an application to rectify the mistake in the judgment of 2005, as I.A. No. 37 of 2009 for clarification/modifications of the said judgment which is pending consideration.The view expressed earlier, inadvertently, on a wrong assumption may result in great public loss and would be against larger public interest. There is no prohibition under the law on this Court to locate the error and adopt a correct approach if the Court is convinced that the error exists and its avoidance is necessary to prevent any baneful effect on the general interest of the public or the State. The mistake is manifestly wrong and has a direct impact on the procedure to be adopted for rehabilitation. The impact of allotment cannot be against public good and has to be balanced with an appropriate grant to the oustees. It is, therefore, essential to rectify the mistake.83. Compensation in the present context has to be understood in relation to right to property. The right of the oustee is protected only to a limited extent as enunciated in Articleof the Constitution of India. The tenure holder is deprived of the property only to the extent of land actually owned and possessed by him. This is, therefore, limited to the physical area of the property and this area cannot get expanded or reduced by any fictional definition of the word "family" when it comes to awarding compensation. Compensation is Awarded by authority of law under Articleof the Constitution read with the relevant statutory law of compensation under any law made by the legislature and for the time being in force, only for the area acquired.Rehabilitation on the other hand, is restoration of the status of something lost, displaced or even otherwise a grant to secure a dignified mode of life to a person who has nothing to sustain himself. This concept, as against compensation and property under Articlebrings within its fold the presence of the elements of Article 21 of the Constitution of India. Those who have been rendered destitute, have to be assured a permanent source of basic livelihood to sustain themselves. This becomes necessary for the State when it relates to the rehabilitation of the already depressed classes like Scheduled Castes, Scheduled Tribes and marginal farmers in order to meet the requirements of social justice.As noted above, benefit given to a major son was not within the terms of the Award. It was rather a concession given by the States who were parties to the NWDT Award. The said Award, therefore, as understood in the previous decisions was not at all applicable for the purpose of extending any such grant of benefit to a major son. The concession given by the respective States after the Award was delivered during the course of subsequent negotiations therefore, could not be a part of the Award. The aforesaid decisions, therefore, would not be a binding precedent for the purpose of the present case as it was under some mistaken belief that the Award was understood to have extended the said benefit to major sons also. The High Court therefore, fell into an error by proceeding to assume that a major son would be treated to be a separate family for the purpose of allotment of land also.84.State.85. More so, the view taken by the High Court that the land to be allotted to major sons shall be determined on the basis of his share in the land prior to its acquisition, does not appear to be compatible or in consonance with the terms of R & R Policy which provides for a minimum allocation of 2 hectares. Thus, the policy must be interpreted to the effect that the major sons of oustees will be entitled to all the benefits under the R & R Policy, except allocation of agricultural land. Each State has a right to frame the rehabilitation policy considering the extent of its resources and other priorities. One State is not bound if in a similar situation, the other State has accorded additional facilities even over and above the policy. The definition of "displaced family" cannot be read in isolation, rather it requires to be considered taking into account the eligibility criteria for allotment of land in Clause (5) of the R & R Policy. To that extent, the judgment of the High Court is liable to be set aside.CONCLUSIONS:86. In view of the above, thedirection given by the High Court in paragraph 64 (i) of the judgment, is modified to the extent that the displaced families who have not withdrawn SRG benefits/ compensation voluntarily and submit applications for allotment of land before the Authority concerned, shall be entitled to the allotment of agricultural land "as far as possible" in terms of the R & R Policy, and for that purpose, the appellants must make some government or private land available for allotment to such oustees if they opt for such land and agree to ensure compliance with other terms and conditions stipulated therein.In case suitable land is available in the land bank, the same would be offered to such oustees. In case, dispute of suitability of land is raised, it would be adjudicated upon and determined by the GRA. The authorities must render all possible assistance to the oustees to purchase the land by negotiations. In case the land is not available as mentioned hereinabove, the State must ensure compliance of Clause 5.4 of the R & R Policy to the full extent in the cases of the Scheduled Castes/Scheduled Tribes and to the extent of 2 hectares in case of other marginal farmers. In case the extent of the land acquired is more than 8 hectares, the same shall be paid according to the provisions contained therein.The Government must continue to search for additional land than what is already available in the land bank and to find out the means of its purchase for allotment to the oustees. The Government should also ensure that the allocated land is not encroached upon by the unscrupuloushave considered the rival submissions made by learned counsel for the parties and perused the record.90. The Office Memorandum issued by the Ministry of Forest and Environment dated 13.10.1993 granting clearance for the Omkareshwar Dam Project with a condition, stated as under: "(vii) The Rehabilitation Programme should be extended to landless labourers and the people affected due to canal by identifying and allocating suitable land as permissible. A time bound programme should be submitted by December, 1993."91. The High Court has held that the said condition so added stood qualified by the words `as permissible and thus, the landless labourers would get the land even for agricultural purposes to the extent of 2 hectares (about 5 acres), if it is permissible in law or any other government policy. In addition thereto, the High Court had further taken note of the fact that all other reliefs including the transportation charges, plots for residential accommodation and preference for employment etc. etc., shall be available not only to landless labourers, but also to major sons of such oustees including landless labourers. As the said condition imposed by the Ministry of Forest and Environment while granting clearance is as stood qualified, and has been subject to any other law for the time being in force or the government policy etc., we do not feel that landless labourers are entitled to allotment of land. More so, the R & R Policy itself provides a particular mode of retaining 50% of the compensation amount and 50% to be recovered in 20 years. As the landless labourers never had any land, they are not entitled to any compensation under the Act 1894, thus, the question of allotment of land to them would not arise. The R & R Policy itself provides that such persons are entitled to get Rs.49,300/to buy productive employment creating assets etc., and such money can also be used for acquiring land. Such terms cannot be interpreted to mean that the landless labourers become entitled to allotment of land for agricultural purpose to the extent of 2 hectares. The policy is to be read as a whole, as it is not permissible for a party to pick up one word or phrase or one sentence and claim relief on the basis of the same. In case, the major sons, as we have already held hereinafter, are not entitled to allotment of agricultural land, the question of landless labourers being entitled to the same does not arise. More so, the words `as permissible cannot be given a completeIn Gurbax Singh v. State of Punjab & Ors., AIR 1967 SC 502 , this Court while interpreting the provisions of Punjab Security of Land Tenures Act, 1953, interpreted the words `permissible area while determining the surplus area and held that permissible area means that the land owner is entitled to reserve land not exceeding the said area and the balance remains surplus area. Therefore, permissible area was defined as an area which is permissible for a person to retain under the provisions of that Act. Thus, permissible area can legitimately be defined as the area reserved under the Act. Similarly, in Municipal Committee, Patiala v. Model Town Residents Association & Ors., AIR 2007 SC 2844 , this Court interpreted the phrase `permissible classification to mean what is permissible in law. In Jagjit Cotton Textile Mills v. Chief Commercial Superintendent, N.R. & Ors., (1998) 5 SCC 126 , while interpreting Rule 161A of the Indian Railways Conference Association Rules and Section 73 of Railways Act, 1989, construing the term "permissible carrying capacity", this Court held that the normal carrying capacity means, it cannot exceed the upper limits prescribed under the Statute/law.92. The Government of Madhya Pradesh in Narmada Valley Development Project had issued its Omkareshwar Multipurpose Project, Rehabilitation and Resettlement Plan in August, 1993, according to which landless persons had been defined as: "1.2(a) Landless Persons:A person, who, whether individually or jointly with members of his family, does not hold any agricultural land or does not have any land for agriculture....."Clause 6 thereof further provided for the families of landless agricultural labourers, a rehabilitation grant oftransport assistance; allotment of plots in rural areas for residential purpose; and various other special financialan interpretation is not permissible for the simple reason that the area mentioned in Clause 9.2 is subject to the provisions of paras 6.1 and 9.1. Para 6.1 provides for a claim to the tune of Rs.11,000/and para 9.1 deals with other grants as mentioned hereinabove. Therefore, such an interpretation is not permissible. Had it been the intention of the Ministry of Forest and Environment to impose such a condition, the word `permissible would not have been used. More so, it would have asked the State Government to amend the R & R Policy accordingly. Thus, in view of above, we do not see any force in the contentions made by the appellant. The reliefs sought by the appellant for landless labourers are notHigh Court has rejected the said contention of the appellant on the ground that the Tribunal had been constituted to resolve the water dispute as defined under Section 2(c) of the Act, 1956, for the reason that a dispute had arisen between various States i.e. the States of Maharashtra, Madhya Pradesh, Gujarat and Rajasthan. The matter was limited to resettlement and rehabilitation of 6147 oustee families spread over in 158 villages in the State of Madhya Pradesh as a consequence of Sardar Sarovar Project. Therefore, the High Court after considering the entire arguments, has come to the conclusion that the Tribunal was considering only the resettlement of the aforesaid oustee families spread over 158 villages in the State of Madhya Pradesh and, therefore, the Tribunal was concerned only with those persons and it did not take in its ambit any other future plan orShri Sanjay Parekh could not point out anything from the Award which may be explained or interpreted to suggest that the terms of the Award would be applicable to any project to be taken by the State of Madhya Pradesh in the future. More so, the Award itself provides for distribution of water among the States and to regulate the amount of water distributed by the Tribunal. Clause 11 thereof, dealt with the directions regarding acquisition of submerged land and rehabilitation of persons displaced by the Sardar Sarovar Dam. Subclause III(1) thereof, fastened the total liability of compensation for land acquisition and rehabilitation etc. on the State ofIn the instant case, we are concerned with the rights and entitlements of the oustees of the 5 villages which had already been submerged. In fact, the project has affected the residents of 30 villages. Five villages had already been submerged. Before the High Court, the question arose as to whether the oustees of those 5 villages which have already been submerged, were entitled to the benefits of R & R Policy and they had been Awarded only the compensation/ SRG and the area of these 5 villages has been submerged during the pendency of litigation before the High Court and this Court. This Court while disposing of the Civil Appeal Nos.of 2011 against this very judgment vide order dated 14.5.2008, has issued a large number of directions and also asked the oustees to approach the GRA.The High Court decided the issue observing that as submerging of the 5 villages took place in view of the orders by the courts and the oustees had been paid compensation/SRG and this Court had passed the order not to submerge the remaining 25 villages till the completion of rehabilitation took place, it was not proper for the High Court to direct the respondents to restore the status quo ante for the 5 villages in issue.100. There are claims and counter claims in regard to voluntary acceptance of compensation amount/SRG by the oustees of those 5 villages. S/Shri R.S. Prasad and P.S. Patwalia, learned senior counsel appearing for the respondents, have relied upon the report of GRA dated 28.4.2007 to show that all those persons have accepted the benefit of SRG and nothing remains to be adjudicated upon.We have considered the rival submissions made by the learned counsel for the parties and perused the record.106. In the instant case, a huge chunk of land was notified under Section 4 of the Act 1894, in these five villages on 9.11.2007 and 10.11.2007. Section 6 declarations were issued on 20.11.2007, 22.11.2007 and 23.11.2007. Notices under Section 9 were issued on 22.11.2007 and 23.11.2007 and the date of hearing fixed on 7.12.2007 and 8.12.2007. Awards were made on 20.12.2007, 22.12.2007 and 26.12.2007. Subsequent thereto, a letter was written by the NHDC, the company on 3.8.2007 to the Member (Rehabilitation), Narmada Valley Development Authority for approval of land acquisition of these five villages, which reveals that after having surveyed the area, there were certain practical difficulties in raising the level of the roads above BWL in respect of certain areas (land in dispute) because the level of the agricultural lands is lower than the BWL. Therefore, the land would be submerged in the back water submergence and it would require an amount of 11 crores to raise the level of the roads upto BWL. Thus, acquisition of remaining 284.03 hectares of land of these five villages was requested to be approved for acquisition. However, it is evident from the letter dated 5.10.2007 of the NVDA that the land in dispute measuring 284.03 hectares in the said five villages would not be submerged, in fact, it would be water locked, as it reads that "some area of a village becoming island or houses surrounded by flood or a village which has become an unviable unit". The acquisition of 284.03 hectares of land of five villages was approved and grant of an amount of Rs.550 lakhs was made.107. By letter dated 2.4.2009, the previous plan was reconsidered in respect of acquiring the said land for five villages considering that the cost of rehabilitation would be much more than raising the level of the road at the cost of 11 crores, which would prevent this area from being water locked.108. Therefore, the case of the State had been that the land in dispute measuring 284.03 hectares would not be submerged temporarily or permanently, rather it may at the most becomeat the time of highest flood situation exceptionally and in case the level of the road is raised, it may work as embankment and this land would not be submerged. Thus, on this premise, the authorities thought it proper to abandon the acquisition proceedings.109. The State authorities have pleaded before the High Court by filing rejoinder affidavit that the standard practice in dam projects involving submergence in India as prescribed by Central Water Commission (CWC) that all lands and properties or the houses are acquired upto full reservoir level (FRL) and only properties or the houses are acquired above FRL upto the Back Water Level (BWL). The lands above FRL will no doubt, be under water upto BWL for a few hours during floods due to back water and the lands will be benefited due to silting during that period. The land which remains temporarily under water above FRL and upto BWL is not acquired as after a few hours the backwater recedes and the land is available for normal agricultural purposes. The lands about 5 to 10 feet below FRL should also not be acquired as these lands are likely to come out of water by 15th December every year as the water is gradually used from the dam for irrigation and/or power generation. Presently the practice is that the land which remains submerged under water temporarily is generally given on pattas to farmers as it is fit for agricultural purpose.110. The order of the High Court dated 22.6.2007 in the interim application filed by the respondents reads as under: "....The consequence is that the five villages namely Gunjari, Paladi, Sailani, Bakhatgarh and Rampura could be affected by the submergence at 189 M and its back water on account of the closure of the radial and sluice gates of Omkareshwar Dam.Regarding the other villages, the case of the petitioner as well as the respondents contesting before us is that rehabilitation measures are yet to be completed in these villages and that these villages were not to be submerged at 189 M on account of the closure of the radial and sluice gates of Omkareshwar dam. We are of the considered opinion that Court takes up the matter and finally decides the grievance of the petitioner with regard to rehabilitation measures. The respondents should not severe electricity and water supply and demolish pubic buildings such as schools etc. in these 25 other villages or take up any coercive step which would force the oustees to leave the villages during the pendency of the writ petition and until the oustees receive all their rehabilitation benefits. We accordingly restrain the respondents from severing electricity and water supplies and demolishing public buildings such as schools etc. in the other 25 villages and from taking any coercive step which will force the oustees to leave these villages during the pendency of the writ petition or until further orders passed by this Court."111. So far as the acquisition of land in such a situation is concerned, even the rehabilitation schemes under the NWDT Award, provided that the BWL at the highest flood level in the Sardar Sarovar would be worked out by the CWC in consultation with the States of Madhya Pradesh and Gujarat. The other relevant part reads specifically "the lands which are to be compulsorily acquired".In the instant case, the issue to be determined is whether it is necessary to acquire this land compulsorily, likely to be submerged temporarily or permanently and also, whether the acquisition proceedings had reached the stage of no return, i.e. it cannot be abandoned. Undoubtedly, most of the land in these five villages which was likely to be submerged temporarily and permanently below the FRL plus MWL and land affected by back water resulting from MWL plus 141.21 mtrs. (460 ft.) had already been acquired and there is no dispute in respect of the same. The dispute remains only in respect of 284.03 hectares of land in these five villages, wherein BWL in exceptional floods etc., may make the said land water locked though it may not be submerged permanently.The High Court while dealing with the said applications did not deal with the issue specifically as to whether the possession of the land has actually been taken or even symbolic possession has been taken by the State; as to whether the persons interested have been evicted from the said land; or they have voluntarily abandoned their possession; or they are still in physical possession of the land; or as to whether after being evicted they had illegally encroached upon the land in dispute. A direction has been issued observing as under: "The lands in these 5 villages of the oustees were acquired by notifications issued under the Land Acquisition Act, and the NVDA has now passed an order on 2.4.2009 saying that the land/property of these 5 villages shall not be acquired and the action taken till now be dropped as per the provisions of law.......The respondents, therefore, will have to provide all the rehabilitation benefits to the villagers of the 5 villages and for the purpose of rehabilitation, the order dated 2.4.2009 of the NVDA is of no consequence. The two IAs stand disposed of.In view of the above, law on the issue can be summarized to the effect that noformula can be laid down for taking the possession of the land for the purpose of Sections 16 and 17 of the Act 1894. It would depend upon the facts of an individual case. In case the land is fallow and barren and does not have any structure or crop on it, symbolic possession may meet the requirement of law. However, this would not be the position in case crop is standing on the land or a kachha or pacca structure has been raised on such land. In that case, actual physical possession is required to be taken. There may be a case where the acquiring authority is in possession of the land, as the same has already been requisitioned under any law or the property is in possession of a tenant, in such a case symbolic possession qua the tenure holder would be sufficient.125. In the instant case, in view of the fact that land in dispute is an agricultural land and has 167 dwelling houses, law in fact requires taking over the actual physical possession. The respondent no. 1 has asserted that the tenure holders are not in possession of the said land. We considered it proper to appoint a Commissioner and to have his report. Thus, vide order dated 24.2.2011, this Court requested the District Judge, Indore to have an inspection of the lands in dispute in five villages and submit the report as who is in actual physical possession of the same.126. In pursuance of our direction dated 24.2.2011, Shri M.K. Mudgal, learned District and Sessions Judge, Indore (M.P.) has submitted a detailed report after having conducted spot inspections and examining all the tenure holders in respect of the land in dispute in presence of Shri Alok Agrawal, Chief Activist of Narmada Bachao Andolan, (who remained present in this Court throughout the proceedings also and had been instructing the learned counsel for the said party) and recorded the following findings of fact:(1) So far as the land in dispute in villages Dharadi, Guadi, Kothmir, Nayapura and Narsinghpura, having an area of 284.03 hectares is concerned, the original tenure holders are in actual physical possession;(2) The Bhumiswamis (tenure holder) had sown the crops on the said land;(3) They have admitted that they had been sowing the crops even after acquisition proceedings.(4) The tenure holders are in possession of the acquired land on the ground that they had still not been rehabilitated as per the scheme of the State Government. Therefore, they are compelled to continue growing the crops and also using the other parts of the land for habitation.(5) They are in possession of their respective lands already acquired as they have not yet been offered the land in lieu of the land so acquired and they would make a shift from the acquired land after compliance of the said obligation by the State.The report concludes as under:"Therefore, on the spot inspection and the recorded evidence, there is no doubt in my mind to conclude that the standing crops have been sown by the former Bhumiswamis and the acquired lands of five villages in questions are actually in possession of the former Bhumiswamis even now. It has also got to be deduced further that N.V.D.A. has never been in possession of the aforesaid lands since the acquisitions of the same." (Emphasis added)127. We have seen the D.V.Ds. and C.Ds. of the videos, prepared during the time of inspection by District Judge, Indore in the presence of hundreds of tenure holders and officials. It is evident from the same that the tenure holders identified their land in presence of Shri Alok Agrawal, the social activist. The entire land is having wheat, cotton, maize and millet crops. The said tenure holders have admitted that they had been cultivating the land for last several years and they had never been dispossessed from the land in dispute by the State. Shri Agarwal had been shown advancing legal submissions before the District Judge, Indore, justifying why the original tenure holders are still in actual/physical possession of the land.128. The District Judge, Indore, has recorded the statements of all the tenure holders. For example, we quote the statement of one Shri Devi Singh S/o Pahar Singh r/o Village: Nayapura, Post: Ratanpur, Tehsil: Bagli, District: Devas, Madhya Pradesh. The same reads as under: 01My land is in Village Nayapura. The land is in Shamlati, its area is approximately twenty acres. The said land is affected by the Omkareshwar Dam Project. On 8th December, 2007, the then Land Acquisition Officer, Shri Chaturvedi came to Village Nayapura, gathered the farmers together and informed them alongwith me that the land no longer belongs to any of us and it has now become the State Governments land and the possession of the said land was with the State. At that time, the land was vacant.02From that day onward, the Government has not been collecting land revenue for the said land and the concerned society has stopped extending the facilities of providing seeds and fertilizers. I alongwith other farmers have submitted an affidavit in this regard in the High Court at Jabalpur. Under the Resettlement & Rehabilitation Scheme, we were supposed to get land in lieu of land acquired. We had been shown land in village Khorda, Tehsil Harsud, but some other people had already encroached upon some of that land and some of it was grazing land which was unfit for agriculture. That is why we have not taken the land that was offered to us.In view of the above, this becomes crystal clear that none of the tenure holders, so far the land in dispute is concerned, has been evicted/dispossessed. All the tenure holders are enjoying the said land without any interference. The tall claims made by the respondents before the High Court were totally false. The High Court was not justified in entertaining their applications in this regard, without verifying the factual aspects.130. In such aas the actual physical possession has not yet been taken by the authorities and the entries in the revenue records etc. are not the conclusive proof, therefore, the State Government is competent to exercise its power under Section 48 of the Act 1894. However, it will be subject to the decision on another relevant issue regarding submergence of the land in dispute permanently or temporarily which is to be consideredquestion is not of justification of the tenure holders to retain possession of the land, rather it had emphatically been argued by Shri Sanjay Parekh, learned counsel appearing for the said applicant/respondent, that powers under Section 48 of the Act 1894 could not be resorted to because the tenure holders had already been physicallyand land stood vested in the State. Therefore, the same could not be divested. The matter was argued by Shri Sanjay Parekh at great length to impress upon the Court that the tenure holders had been actuallylong ago. This fact was denied by the State. It was only after considering the rival submissions on behalf of the parties that this Court thought it fit and appropriate to have a spot inspection report and then the District Judge, Indore, was asked to make a local inspection and submit the report. The report has been made after making an inspection of the area and recording statements of the tenure holders in presence of Shri Alok Agrawal, Chief activist of NBA and thus, we accept the same. It is evident from the said report that statements made by the said applicant/respondent in the Court, in this regard are factually incorrect and false. The Court has been entertaining this petition under the bona fide belief that NBA was espousing the grievance of inarticulate and illiterate poor farmers, with all sincerity and thus, would not make any misleading statement. However, our belief stands fully belied. Applicant/respondent made pleadings and advanced arguments without any basis only to secure unwarranted benefits to those tenure holders. In the instant case it stands discredited totally in the eyes of this Court. This Court had been a little careful and cautious in this regard, which has exposed the true picture.132. In such athe NBA not having personal interest in the case, cannot claim to be dominus litis. Thus, it ought to have acted at every stage with full sense of responsibility and sincerity. Earlier also, this Court in Narmada Bachao Andolan v. Union of India & Ors., (1998) 5 SCC 586 , has disapproved the conduct of the Narmada Bachao Andolan and described it to be most unfortunate that it had celebrated the 4th anniversary of the stoppage of work of the dam under the interim orders of the Court. This Court found it to be an obstruction in the way of implementing the R & R Policy.In such a case the person who suppresses the material facts from the court is guilty of Suppressio Veri and Suggestio Falsi i.e. suppression or failure to disclose what a party is bound to disclose, which may amount to fraud.145. In view of the above, we reach the inescapable conclusion that the NBA has not acted with a sense of responsibility and so far succeeded in securing favourable orders by misleading the Court. Such conduct cannot be approved. However, in a PIL, the Court has to strike a balance between the interests of the parties. The Court has to take into consideration the pitiable condition of oustees, their poverty, inarticulateness, illiteracy, extent of backwardness, unawareness also. It is desirable that in future the Court must view any presentation by the NBA with caution and care, insisting on proper pleadings, disclosure of full facts truly and fairly and in case it has any doubt, refuse to entertain the NBA. However, considering the interests of the oustees, it may be desirable that the Court may appoint an Amicus Curiae to present their cause, if such a contingency arises.If we read the above referred to provisions of the R&R Policy, findings in NWDT Award, project report prepared by CWC in March 1997 and observations made in Narmada Bachao AndolanII (Supra) and analyse it properly, the following picture emerges: (i) In case the land/dwelling unit of the tenure holder is submerged temporarily, he is entitled for the benefit of R&R Policy;(ii) In case of temporary submergence of the agricultural land between FLR and MWL and those affected by the back water affect resulting from MWL, only the buildings with their appurtenant land would be acquired. But the agricultural land is not to be acquired; and(iii) In case, the dwelling units are acquired because of temporary submergence, such persons shall be entitled for the benefits under R&R Policy.158. We have not only considered the rival submissions made by learned counsel for the parties but in view of the fact that the matter is extremely technical, we requested the CWC to depute Mr. U.K. Ghosh, Chief Engineer (NDACWC), who had been the Chairman of the Committee, to render assistance as the Court wanted certain explanation/clarification from his team, thus called them in the Chambers on 27.4.2011 and again on 5.5.2011. We discussed various aspects of the report and objections filed by the parties. They have explained the concept of BWL and Dam Overtopping as under: BWL : BWL in the upstream of a dam is formed by incoming flood while passing through the reservoir created by artificial obstruction in a river channel by construction of an weir or a dam.Dam Overtopping : Dam overtopping implies water flow over the dam top. Flow of water over the dam top may occur due to:(a) Increase in water level in the reservoir higher than the top level of the dam due to an inflow volume greater than the project design flood, due to underestimation of the same at the time of project planning and design.(b) Mechanical failure in reservoir operation or due to human negligence.On the main issue as to whether the land in dispute is to be acquired or not, the relevant part of their written opinion dated 6.5.2011 reads as under:"As per yearwise record of maximum flood discharge at Omkareshwar dam, since 1951 up to 2003 (53 years), the flood discharge never exceeded the design spillway capacity of 69,000 cumecs. The statement of yearwise maximum floor discharge is enclosed at AnnexureI. From the Standard Project Flood (SPF) hydrograph, as adopted for working out the backwater level in the Omkareshwar Reservoir, it is noted that duration of flood magnitude above design spillway capacity at FRL is about two days only. Therefore, during Monsoon season temporary submergence due to backwater effect above FRL will not be more than 4 to 5 days.In respect ofperiod it is to mention that there will be daily regulated release from both Indira Sagar Dam in the upstream of Omkareshwar dam as well as from Omkareshwar dam itself for power generation and other commitments. The reservoir level at Omkareshwar dam are likely to be maintained within FRL by suitable reservoir operation at all times duringperiod. In the present case, the disputed land admeasuring 284.03 hectares between FRL and BWL comes under temporary submergence for a duration of less than 15 days when a flood of SPF magnitude, which is 1 in 1000 years return period flood for this project impinges the reservoir at FRL. Therefore, keeping in view all the above points given in Para 2(i) to Para 2(iv), the Committee is of the view that the agricultural lands within FRL and BWL need not be acquired as per the guidelines for preparation of Project, Estimates for River Valley Projects prepared by Central Water Commission in March, 1997." (Emphasis added)159. In view of the expert opinions rendered by CWC and other materials on record, we reach the inescapable conclusion that the agricultural land of these five villages is not to be acquired as it may only be under temporary submergence for a very short period, which occurs throughout the country during floods in monsoon. Such a submergence is always beneficial to agricultural produce as the land gets enriched due to silting during the flood and becomes more fertile. More so, such an acquisition is not in the interest of the State as the land cannot be put to any use whatsoever, and there is a possibility that such land would be encroached upon by unscrupulous elements.