| NBA Press Release
|| 22 February 2008
Madhya Pradesh High Court gives land-mark judgment: Directs allotment of land to oustees of Omkareshwar dam
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Giving a land-mark judgment yesterday in a case filed by the Narmada Bachao Andolan seeking rehabilitation and resettlement for the oustees of the Omkareshwar dam, a bench of the Madhya Pradesh High Court comprising of Hon'ble Chief Justice Shri A.K. Patnaik and Justice Shri Ajit Singh directed that every farmer, encroacher, and adult son of farmer must be provided agricultural land for land with a minimum allotment of 5 acres of irrigated land, as per the R&R Plan, R&R Policy and GOI approvals. The Hon'ble High Court also directed that every adult son of such cultivator must be also allotted such land, even if he is not a titleholder.
The bench of the High Court also directed that the present water level of 189 meters cannot be raised until the R&R of all the oustees of the project including the allotment of land is completed. The High Court also directed the State government to pay Rs. 10,000 to the petitioner – the Narmada Bachao Andolan as costs.
It may be noted that the Omkareshwar dam is one of the large dams being constructed in the Narmada valley. 30 villages and nearly 8000 families are affected by this dam. The dam is being constructed by the NHDC (Narmada Hydro-Development Corporation) – which is a joint venture of the State Government and the Central Government undertaking – the NHPC. Although the basic feature of the R&R policy applicable for this project is the allotment of land for land with a minimum of 5 acres of irrigated land, not even a single oustee was provided land. Yet on the 28th of March 2007, the State Government permitted filling of the reservoir. It was to prevent a large-scale disaster of submergence of thousands of families without proper R&R, and the flagrant violation of the R&R Policy by the GOMP and the Project authorities that the Narmada Bachao Andolan approached the Madhya Pradesh High Court on the 30th of March 2007 and obtained a stay on reservoir filling. The Supreme Court later permitted reservoir filling up to 189 meters but no further, and directed that the High Court to decide the matter on merits.
High Court holds Oustees have a fundamental right to be better-off after displacement
Citing the judgments of the Supreme Court in the first and second Narmada Bachao Andolan cases, and in the N.D. Jayal Tehri dam case, the High Court stated that it is a fundamental right of the oustees under Article 21 of the Constitution to be made better-off after displacement. The High Court held that the oustees may be made better-off by various means, whether by the allotment of land, or employment, or other schemes. However, the High Court held that " If the Government assures land, but later does not offer land, it will be the duty of the Court to enforce the right"
"As far as possible" does not absolve State government of constitutional obligation to provide land
The High Court held that it is the constitutional obligation of the State government to provide R&R entitlements to the oustees including the allotment of land. In this case, since the Narmada Hydro-Development Corporation (NHDC) which is the Project holder is a joint venture of the State and Central government undertaking, both the State and Central Governments are under an obligation to provide these entitlements including the allotment of land.
It may be noted that the State government tried to escape its responsibility by modifying the R&R Policy in 2002 and stating that the allotment of land will be made only "as far as possible". However the High Court held that such a modification did not absolve the Government of its duty to allot land for land to the oustees, with a minimum allotment of 5 acres of irrigated lands, and that the same would have to be complied with.
High Court held land available, hence land allotment possible: If available for SEZ's, then why not for the oustees
State government must arrange government or private lands for allotment
The High Court also held that the Government could not have been compelled to provide lands if the same had been impossible. However, it was the finding of the High Court that lands are available in the State of Madhya Pradesh since the Government has provided thousands of acres of lands to SEZs and private industries. However the State government had made no effort to obtain private lands for the oustees. The High Court also noted that some of the oustees purchased lands with their compensation. On the basis of the above, the High Court refused to accept that lands are not available in Madhya Pradesh and that allotment of land is impossible. Therefore it held that the State Government and the NHDC are under a constitutional obligation to allot lands to the oustees, and suitable government lands and private lands must be obtained and allotted to the oustees.
Oustees who have accepted compensation still eligible for land
The Court also held that the oustees who have accepted compensation are still eligible for land. They cannot be denied lands because of the failure of the GOMP to obtain and offer agricultural land. The High Court also held that since allotment of land is a fundamental right of the oustees, it cannot be waived. Therefore the oustees are still eligible for land and can exercise their option to obtain land, and the State Government and the NHDC will be obliged to provide them agricultural land. However such oustees would have to return 50 % of the compensation when they accept the allotted lands, the remaining 50% to be given back in 20 installments.
Land to adult sons
The High Court also held that the adult sons who are not title-holders will be eligible for land, based on the share of the lands they would have received had the lands been distributed, with a minimum of 5 acres of irrigated land.
No further impoundment of waters in Omkareshwar dam until completion of R&R
The High Court held that until the full completion of the R&R, the water level of the dam cannot be increased any further, above 189 meters.
All other grievances to GRA
The High Court directed that all other grievances such as non-inclusion of houses, persons and denial of other grants may be taken to the Grievance Redressal Authority (GRA) by the 31st of March 2008, and the GRA would have to decide the same by the 14th of June 2008.
GRA to file report in Court and High Court to decide about further submergence
The High Court further ordered that the GRA would file a Report in the High Court by the 14th of June, and the matter of permitting further impoundment or submergence of the 25 villages would be decided on the 17th of June by the High Court based on the progress of R&R including the allotment of land.
It may be noted that the hearings in this case extended over a number of days. The State Government was represented by Advocate General Shri R.N.Singh, and the NHDC was represented by Senior Supreme Court counsel Shri Ravishankar Prasad. Ms. Chittaroopa Palit, activist of the Narmada Bachao Andolan argued for the NBA.
Narain Birla , Sarpanch Sukwa
Radhesyam Tirole, Gogalgaon
Bhagwanbhai, Village Dharaji
Radhabai , Village Gogalgaon
Radhabai, Village Gunjari