M/S MODERN INSULATORS LTD. …PETITIONER
Vs.
THE ORIENTAL INSURANCE CO. LTD. …RESPONDENT

DATE OF JUDGMENT: 22/02/2000

BENCH: S.Saghir Ahmad, S.N.Phukan

JUDGMENT

PHUKAN,J,

This appeal is directed against the order dated 08.01.97 passed by the National Consumer Disputes Redressal Commission whereby the Commission set aside the order passed by the State Commission of Rajasthan in the appeal filed by the respondent.

The appellant has a factory wherein it manufacturers high tension insulators for transmission lines. The appellant had taken out an insurance policy known as ‘All Risk Insurance Policy’ for Rs. 50 lakhs tor installation of 25 M3 kiln with furniture. The policy covered risks against loss during storage-cum-erection including trial and testing. After completion of the erection of 25 M3 kiln, the same was loaded with insulators on 12.7.88 for trial and testing and when it was opened on 16.7.88 it was found that complete structure of kiln furniture with insulators had collapsed on kiln car and various items of kiln furniture were damaged. A claim of Rs. 5,73,397.43 was lodged with the respondent and the surveyors assessed the damage at Rs. 4.66,873. As the claim was not settled a complaint was filed before the State Commission alleging negligence on the part of the respondent and claiming the amount assessed by the surveyor with interest. ..

The respondent – Insurance Company in the reply to the complaint filed before the State Commission pleaded that damaged property was not covered by the insurance policy.

The State Commission after considering the materials on record rejected the plea of the respondent and directed the respondent to indeminify the loss by making payment of Rs. 4,66,873/- with interest (@). 18% per annum.

An appeal was filed before the National Consumer Disputes Redressal Commission and in the grounds of appeal it was stated that the appellant violated the terms and conditions of the policy by using used kiln furniture. This was denied by the appellant.

The appellant also urged betore the National Commission that only the cover note and the schedule of insurance policy were supplied and other terms and conditions including the exclusion clause were not communicated. According to the appellant the above document supplied did not contain the exclusion clause. The said exclusion clause runs as follows:

“In the case of second hand/used property the insurance hereunder shall, however, cease immediately on the commencement of the test” The National Commission asked the parties to file affidavits to prove That the exclusion clause was duly communicated to the appellant. We have been taken through the affidavits filed and we find in the affidavit of the appellant the letter received by the appellant from the Branch Manager of the respondent was referred to wherein it was confirmed that appellant was supplied only with a cover note and the schedule of the policy. So the other terms and conditions containing the above exclusion clause were not communicated. In the reply affidavit filed by the respondent it was not specifically mentioned that the exclusion clause was also communicated to the appellant..

The National Commission was of the view that “it is equally responsibility of the respondent to call for these terms and conditions even if they were not sent by the appellant as alleged, to understand the extent of risks covered under the policy and the associated aspects.” It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good fath forbids either party from non-disclosure of the lads which the parties known. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose .ill material facts in their knowledge since obligation of good faith applies to both equally.

In view of the above settled position of law we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant respondent cannot. claim the benefit of the said exclusion clause. Therefore.. the finding of the National Commission is untenable in law.

We may refer to the next ground on which appeal has to be allowed. It is settled position of law that in an appeal the parties cannot urge new facts. From the pleadings of the respondent before the State Commission it is found that respondent pleaded that the property damaged wa.s not covered under the insurance policy. This plea was given a go by before the National Commission and a new plea was taken up in the grounds of appeal that the terms and conditions of the insurance policy were violated by the appellant by using used kiln furniture. The National Commission accepteu this new ground and allowed the appeal, which in our opinion is not sustainable in law.

For the reasons stated above we hold that the present appeal has merits.

In the result, appeal is allowed. The judgment of the National Commission is set aside and the judgment of the State Commission is restored.

Considering the fects and circumstances of the case we direct the parties to bear their own cost.

The post M/s Modern Insulators Ltd. Vs. The Oriental Insurance Co. Ltd. appeared first on B&B Associates LLP.

PETITIONER: RAMESH K. SHARMA AND ANR.
Vs.
RESPONDENT: RAJASTHAN CIVIL SERVICES AND ORS.

DATE OF JUDGMENT: 23/11/2000

BENCH: G.B.Pattanaik, B.N.Agrawal

L…..I………T…….T…….T…….T…….T…….T..J PATTANAIK,J.
These appeals are directed against the common judgment of the Division Bench of the Rajasthan High Court in a bunch of writ petitions, which had been filed against the judgment and order of the Rajasthan Civil Services Appellate Tribunal in a bunch of appeals. The perennial problem of inter se seniority between the two sources has cropped up in these appeals, but the dispute in the present batch of cases is between the direct recruits and the surplus persons who were absorbed as Sales Tax Officers in the Sales Tax Department, the absorption having been made under the Absorption of Surplus Personnel Rules, 1969 (hereinafter referred to as the Absorption Rules). The appellants are the direct recruits to the post of Commercial Tax Inspector and the recruitment to the said post is governed by a set of rules framed under the proviso to Article 309 of the Constitution called the Rajasthan Commercial Taxes Subordinate Service (General Branch) Rules, 1975 [hereinafter referred to as the Recruitment Rules]. The private respondents herein had been appointed to the Land and Building Tax Department and they being found to be surplus personnel, they were absorbed under the Co-operative Department and later on, in the Commercial Tax Department as Commercial Tax Inspectors under the provisions of the Absorption Rules. The inter se seniority between the surplus employee, who is appointed substantively to a permanent post in the service in which he is absorbed and those who are in the parent department, is required to be determined under Rule 15 of the Absorption Rules. Under the said rules, the longer period of continuous substantive service on the post compared to the post in which the absorption takes place is the criteria.

The private respondents being original appointees in the Land and Building Tax Department, on their absorption in the Sales Tax Department under the Absorption Rules, for determination of their seniority under Rule 15 of the said Rules, the question for consideration would be, whether the post which they were holding in the Land and Building Tax Department are comparable to the post of Commercial Tax Inspector and if so, whether their appointment to the post in the Land and Building Tax Department from the inception, was substantive in nature or it became substantive from any later point of time and consequently what period of that service could be counted for the purpose of determining the inter se seniority in terms of Rule 15(1) of the Absorption Rules. The Land and Building Tax Department was created in the year 1973 and pursuant to an advertisement issued for appointment of Trainee Inspectors under the special scheme for providing employment to educated unemployed, the private respondents were appointed on 17th of August, 1973 on a fixed stipend of Rs.150/- per month. W.e.f. 1.3.1974, such trainees were appointed on probation on the temporary post of Second Class Inspector, on successful completion of their training under the said Land and Building Tax Department.

By order dated 4.5.1976, the State of Rajasthan substituted the expression on probation by the word temporary and as such, the private respondents were appointed on temporary basis w.e.f. 1.3.1974. The appellants 1 to 4 having been selected by the Rajasthan Public Service Commission under the Recruitment Rules of 1975, were appointed as Commercial Tax Inspectors Grade II on probation by order dated 19.12.1977. Appellants 5 to 10 had been selected by the said Rajasthan Public Service Commission under the Special Recruitment Rules of 1976 and had been appointed to the post of Commercial Tax Inspector, Grade II on 28.7.77. All the appellants were made permanent in the said post of Commercial Tax Officer, Grade II w.e.f. 1.3.80 by order dated 5.5.1982. In the Urban Land and Building Tax Department, the private respondents who had been appointed temporarily, were made permanent w.e.f. 27.2.1981 by order dated 1.9.1981, as 61 temporary posts in the said Urban Land and Building Tax Department were made permanent w.e.f.

27.2.1981. By order dated 26.4.1982, the private respondents herein, were declared as surplus in the Land and Building Tax Department and their services from the post under the said department, stood terminated. Some of these surplus employees were absorbed in the Commercial Tax Department as Commercial Tax Inspectors Grade II by order dated 17.6.1982 and some others were absorbed in the Co-operative Department as Inspectors Grade II by order dated 25.6.1982. Those, who had been absorbed in the co-operative department, represented to the State Government for their absorption in the Commercial Tax Department and the State of Rajasthan absorbed them in the Commercial Tax Department by four different orders, the same being order dated 17.8.82, 20.1.83, 4.3.83 and 10.5.1983. The Association of Commercial Tax Inspectors, submitted a representation to the State Government against the absorption of the employees in their department, who had already been absorbed in the Co-operative Department, essentially, on the ground that no post of Inspector being available, the absorption in the Co-operative department is bad in law. In the seniority list prepared by the department in the cadre of Commercial Tax Inspector Grade II, the appellants had all along been shown senior to the absorbee- respondents, who had been absorbed under the Absorption Rules, on being found surplus in their parent department of Land and Building Tax Department. The final seniority list had been published by the State Government on 19.5.1993. The private respondents, who were originally born in the Land and Building Tax Department and had later been absorbed in the Sales Tax Department, approached the Civil Services Appellate Tribunal (hereinafter called the Tribunal), assailing the aforesaid seniority list and the position assigned to the present appellants in the said list. The Tribunal by its order dated 31.5.94, quashed the seniority list, prepared in 1987, 1990 and 1993. The Tribunal, on interpreting the provisions of Rule 15(1) of the Absorption Rules and looking to the appointment orders of the private respondents and their confirmation thereafter in the Land and Building Tax Department, came to hold that their appointment was substantive in nature, right from the inception on 1.3.1974 and that being the position, their services from 1.3.74 would count for the purpose of seniority. The appellants assailed the legality of the aforesaid order of the Tribunal by filing writ petitions and those writ petitions having been dismissed, the appellants are before this Court. It may be stated at this stage that one Bhanwar Lal Malakar, who was also an employee under the Land and Building Tax Department, like the present private respondents herein and who had been absorbed in the Excise Department under the self-same Absorption Rules, had approached the High Court in Writ Petition No. 1477 of 1990 against the order of the Rajasthan Civil Services Appellate Tribunal and had claimed that his services in the Land and Building Tax Department w.e.f. March 01, 1974, must be held to be substantive in nature and as such should count for the purpose of his seniority under Rule 15(1) of the Absorption Rules. The High Court came to the conclusion in that case that as the appointment in the Land and Building Tax Department had been made after a regular selection by a duly constituted Committee, though against a temporary post, till the post became permanent and the incumbent also became permanent thereafter, it must be held that the appointment was in a substantive capacity and as such, the services of said Shri Malakar w.e.f. 1.3.74 has to be counted for the purpose of his seniority under Rule 15(1) of the Absorption Rules. The aforesaid decision was affirmed by this Court by dismissal of the special leave petition against the same.

In fact, in the present case, the Civil Services Appellate Tribunal, in setting aside the seniority list prepared by the department, followed the earlier judgment of the High Court in Malakars case.

Mr. Rajeev Dhavan, the learned senior counsel, appearing for the appellants, vehemently contended that the initial appointment of the private respondents in the Land and Building Tax Department on 1.3.74, cannot, but be held to be ad hoc appointment, in terms of Rule 3A of the Absorption Rules, and, therefore, the Tribunal and the High Court committed error in computing the period from 1.3.74 for determination of their seniority under Rule 15(1) of the Absorption Rules, and thus the impugned decision of the Tribunal and the High Court must be set aside. Mr. Dhavan also further contended that the very absorption of the private respondents under the Absorption Rules, not having been made in accordance with the prescribed procedure contained in Rule 7, the Tribunal and the High Court committed serious error in determining the seniority of such irregular absorbees under Rule 15(1) of the Absorption Rules. Mr. Dhavan also urged that in deciding the status and character of the services which the surplus personnel were holding, prior to their absorption under the Absorption Rules, must get its colour from the nature of absorption itself, in view of indications made in Rule 7 and adjudged from this angle, the conclusion is irresistible that the private respondents in the Land and Building Tax Department were not holding any post on substantive basis and consequently, any period prior to their being permanent on 27.2.81, could not have been counted for the purpose of their seniority under the Absorption Rules. Mr. Dhavan also finally urged that the very appointment of these private respondents in the Land and Building Tax Department, not having been made under any Rules, but on the other hand de hors the rules, such appointment would not count for the purpose of their seniority, even under the principles enunciated by this Court in the Constitution Bench in the Direct Recruit Case.

Mr. P.P. Rao, the learned senior counsel, appearing for the absorbed employees, on the other hand contended that the nature and status of the post held by these respondents in the Land and Building Tax Department, has already been determined in Malakars case and that decision has reached finality by dismissal of the special leave petition against the same, and, consequently, the Tribunal and the High Court were justified in holding that the appointment of the private respondents w.e.f. 1.3.1974 was of a substantive nature and as such, would count for the purpose of their seniority under Rule 15(1) of the Absorption Rules. Mr.

Rao also submitted that these respondents having been selected by a process of selection and having been appointed on being selected and, thereafter having been made permanent, there is no reason as to why their services with effect from the date of their initial recruitment would not count for the purpose of their seniority in the absorbed cadre and both, in law and equity, the seniority has to be determined, taking the entire length of service into account. Mr. Rao also urged that this Court has consistently pronounced that where temporary posts are virtually long-lives, then officiating service in such posts is for all practical purposes of seniority, as good as service on a regular basis and this being the position, in the case in hand, when the posts in the Land and Building Tax Department, itself had been made permanent and the incumbents also have been confirmed, there would be no rationale to exclude their services from the date of appointment till the date of confirmation for the purpose of seniority and in terms of Rule 15(1), the said period cannot, but be held to be substantive in nature and as such, the conclusion of the Tribunal and the High Court remains unassailable.

In view of the rival submissions at the Bar, the crucial question that requires consideration is what is meaning of the expression substantive service and whether the services of the private respondents under the Land and Building Tax Department from 1.3.1974, could be held to be substantive service. There is no dispute that the very post against which the private respondents were appointed temporarily w.e.f. 1.3.1974, became permanent by order dated 27.2.1981 and all these private respondents were also made permanent with effect from the very date, by order dated 1.9.1981. Rule 15 of the Absorption Rules, for better appreciation of the point in issue is extracted herein below in extenso:-

15. Seniority.- (1) The seniority of a surplus employee appointed substantively to a permanent post in the service or cadre in which he is absorbed shall be determined by the appointing authority concerned by placing him below the junior-most permanent employee of the new service or department who has a longer period of continuous substantive service on the post compared to the continuous substantive service of the surplus employee on equivalent or higher post. The seniority of a surplus employee who is absorbed on a higher posts on officiating basis shall be determined only in respect of his permanent post: [Provided that the seniority of the surplus employee whose length of continuous service in substantive or officiating capacity or in both such capacities is lesser than the length of continuous service in substantive or officiating capacity or in both such capacities of the junior most permanent employee of the service or cadre of the New department in which such surplus employee has been absorbed, shall be determined by placing the surplus employee immediately below the said junior-most permanent employee in the service or cadre or the department in which the surplus employee has been absorbed.] [Provided further that inter-se seniority of the surplus employees absorbed in a department/service/cadre or unit under an Appointing Authority and the employees of the service/cadre of the new department, for promotion to higher post in the service or cadre in which he has been absorbed shall be determined according to the date of continued officiation in a class or category of post concerned or an equivalent or higher post provided such officiation was not of the fortuitous nature or ad hoc or an urgent temporary appointment, notwithstanding their years of substantive appointment or date of confirmation or the length of continuous substantive service in the different cadre post or service.] (2)The seniority of a surplus employee appointed to a new post in a temporary or ad hoc capacity shall, pending his appointment on a substantive basis, be determined in the following manners: (a)In the case of a surplus employee appointed temporarily to a new post his seniority among the temporary employees holding same posts in the service or cadre in which he is absorbed shall be determined by placing him immediately below the temporary employee of the new service or cadre who has rendered a longer period of continuous temporary service compared to the continuous temporary service of the surplus employee on same equivalent or higher post. (b)In the case of surplus employee appointed on ad hoc basis in a new post his seniority among the ad hoc employee holding same posts in the service or cadre in which he is absorbed shall be determined by placing him immediately below the ad hoc employee of the new service or cadre, who has rendered a longer period of continuous service on an ad hoc basis compared to the continuous ad hoc service of the surplus employee on same, equivalent or higher post: Provided that all substantive employees in a cadre or service including substantive surplus employees absorbed therein, shall rank senior to temporary employees appointed or absorbed under these rules in such cadre or service and all such temporary employees shall rank senior to all ad hoc employees appointed or absorbed under these rules or otherwise.

[Provided further that the seniority of the employee on a post in a cadre or service including surplus employees absorbed therein and who were substantive on such posts on or before 11th December, 1969, shall be determined according to the provisions of the relevant Service Rules.] (3)The seniority inter se of employees declared surplus from a service or cadre shall on their appointment to new posts in another service or cadre shall be the same as it existed in the former service or cadre.

The private respondents having been absorbed as Commercial Tax Officer Grade II, their seniority in the cadre of Commercial Tax Officer Grade II will have to be determined on the basis of the aforesaid Rule 15(1). It is also not disputed that the post which these private respondents were holding under the Land and Building Tax Department were equivalent posts of the posts of Commercial Tax Inspector Grade II. The only question, therefore, requires adjudication is whether these private respondents were in continuous substantive service with effect from 1.3.1974 or they would be held in continuous substantive service only after they were made permanent with effect from 27.2.1981. In the Service Jurisprudence a post could be temporary or it could be permanent or it could be created for a definite period to meet a definite contingency. If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment not being either stop-gap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stop-gap basis then such an appointment cannot be held to be on substantive basis. The expression substantive basis is used in the Service Jurisprudence in contra-distinction with ad hoc or purely stop-gap or fortuitous. In Baleshwar Dass & Ors. Etc. vs. State of U.P. & Ors. (1981) 1 Supreme Court Reports 449, this Court held that when a person holds a post for an indefinite period especially for ,long duration in contradistinction to a person who holds it for a definite or temporary period or holds that on probation then it must be held that he held a post in a substantive capacity. Further if an appointment to the post is made by the proper authority after the person concerned passes the prescribed test and if a probation period has been prescribed therein, on completion of the probation period his appointment is further approved then also it can be said that he held a post in substantive capacity. This decision in Baleshwar Dass case (supra) was followed by this Court in O.P. Singhlas case (1985) 1 Supreme Court Reports, 351. It is also quite apparent in Service Jurisprudence that there exists difference between a substantive post as contra- distinguished from temporary post and appointment of an incumbent to these posts could be made either on substantive basis or on ad hoc or stop-gap basis. This being the legal position and in the case in hand the initial appointment to the post in the Land and Building Tax Department of the private respondents having been made after subjecting the incumbent to prescribed test and on being selected after initially making their appointments on probation and thereafter excluding the expression probation from the terms of appointment and continuing them against the temporarily created post till the posts were made permanent and then the incumbent were also made permanent, it cannot but be held that these private respondents had continuously held a post in the Land and Building Tax Department on substantive basis which post is equivalent to the post of Commercial Tax Inspectors Grade II in which these private respondents were absorbed, and consequently, for the purpose of determining the seniority of the appellants who were direct recruits to the post of Commercial Tax Inspector Grade II and the respondents who had held an equivalent post in the Land and Building Tax Department on substantive basis with effect from 1.3.1974 the continuous substantive service from that date will have to be reckoned. In fact in Malakars case, who was also a temporary recruit in the Land and Building Tax Department alongwith the private respondents the High Court has recorded a finding that said Shri Malakar was holding the post in the Land and Building Tax Department in substantive capacity with effect from 1st March, 1974, and the said finding of the High Court was ultimately upheld by this Court in dismissing these Special Leave Petitions against the same. In coming to the aforesaid conclusion the High Court had examined the substance of the matter, namely, the surrounding circumstances, the mode and manner and the term of appointment and all other relevant factors. In the case in hand it is not disputed by Dr. Rajiv Dhawan, learned senior counsel appearing for the direct recruits/appellants that these private respondents had been appointed in the Land and Building Tax Department after a regular selection by a duly constituted committee. In the aforesaid premises, we unhesintatingly come to the conclusion that the appointment of the respondent in the Land and Building Tax Department with effect from 1.3.1974 was on substantive basis.

Dr. Rajiv Dhawan, no doubt, had raised the contention that the absorption of these respondents had not been made in accordance with the procedure prescribed for in the Absorption Rules, inasmuch as, no Absorption Committee had been constituted by the State Government in accordance with Rule 5 of the Absorption Rules, and the procedure prescribed for absorption in Rule 7 had not been followed. If these were the facts then the direct recruits could have assailed the very absorption of the private respondents in the cadre of Commercial Tax Officer Grade II but at no point of time the absorption of the private respondents had been assailed and what had been assailed is the determination of inter se seniority between the direct recruits and such absorbed employees. That apart, having scrutenised the materials available on record, more particularly, the document dated 25.6.1982, issued by the Government of Rajasthan, Administrative Department, indicating the absorption of the surplus employees as well as the document of the said department dated 17.6.1982, for similar absorption wherein it has been clearly indicated that he committee concerned has accepted the question of absorption of the surplus employees, we do not find any substance in the said submission of Dr. Rajiv Dhawan, the learned senior counsel appearing for the appellants.

Dr. Rajiv Dhawan had urged with vehemence that the appointments of the respondents in the Land and Building Tax Department would be ad hoc within the meaning of Rule 3 of Absorption Rules. The said Rule is quoted hereinbelow in extenso:

Rule 3. Definitions.- In these rules, unless the context otherwise requires;– (a) Ad hoc appointment means temporary appointment made without selection of the candidate by any of the method of recruitment provided under the relevant service rules, or any orders of Government where no service Rules exist and otherwise than on the recommendations of the Commission if the post is in its purview. (b) Appointing Authority means the appointing Authority as defined by the Service rule of the State applicable to a particular post and where not so defined, as defined or constituted by the Rajasthan Civil Services (Classification, Control, and Appeal) Rules, 1958; (c) Committee means the Absorption Committee constituted by the Government under rule 5 of these rules; (d) Commission means the Rajasthan Public Service Commission;

(e) Departmental Examination means the departmental examination held under the provisions of the Rajasthan Civil Services (Departmental Examination) Rules, 1959; (f) Equated post means a post declared by the Committee as equated to the post held by the surplus personnel immediately before his being declared surplus; (g) Equivalent post means a post carrying an identical time scale of pay and involving similar nature of duties and responsibilities; (h) Government and State means respectively, the Government of Rajasthan and the State of Rajasthan; (i) New post means a post on which surplus employee is appointed by absorption under these rules; (j) Previous post means a post held in permanent, officiating, temporary or ad hoc capacity by a surplus employee on the date of his being declared surplus; (jj) Regularly appointed means persons appointed on the recommendations of the Commission if the posts are in its purview and the persons appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be, but does not include an ad hoc or urgent temporary appointment or officiating appointment which is subject to review and revision by the Departmental Promotion Committee;

(k) Schedule means schedule appended to these rules; (l) Surplus Personnel or Surplus Employee means the Government servant to whom the Rajasthan Service Rule, 1951 apply and who are declared surplus by the Government or by the Appointing Authority, under directions of the Government, on their being rendered surplus to the requirements of a particular department of the Government due to the reduction of posts or abolition of offices therein as measures of economy or on administrative grounds but in whose case the Government decides not to terminate their services but to retain them in service by absorption on other posts. Provided that the Committee, appointed under the various Service Rules for adjudging suitability by screening either as an exception to general methods of recruitment or as initial constitution of service, may ex-gratia recommend, if any of the employee with more than three years of service on a post for which he is to be screened is not adjudged suitable and if thereafter has no right to be appointed on a lower post, for such lower post being offered to him by absorption and thereupon such an employee shall be treated as Surplus Employee under the provisions of these rules and such person may be absorbed on the lower post on the recommendations of the Committee subject to the conditions laid down by it. (m) Temporary appointment means a temporary appointment made either against a temporary or permanent post other than an ad hoc appointment. (n) Vacant post means a post under the Government not held substantively by a Government Servant.

(o) Substantive Appointment means an appointment made under the provisions of these Rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these Rules and includes an appointment on probation or as a probationer followed by confirmation on the completion of the probationary period. Note:- Due Selection by any methods of recruitment prescribed under these Rules will include recruitment either on initial constitution of Service or in accordance with the provisions of any Rules promulgated under proviso to Article 309 of the Constitution of India except urgent temporary appointment.

According to the learned counsel since there was no relevant Service Rules for recruitment to the post under the Land and Building Tax Department it has to be assumed that such appointment has been made without any selection and, as such the appointment would attract the expression ad hoc in Rule 3 (a) of the Absorption Rules. We are not persuaded to accept this contention inasmuch as the expression service rules does not necessarily mean Rules framed by the Governor in exercise of power under the proviso to Article 309 of the Constitution. It is well settled that the service condition including the mode of recruitment to a service could be determined by a set of Administrative Order in the absence of any statutory rule operative in the field.

This being the position, and when the very advertisement for filling up of the post in the Land and Building Tax Department is examined it would be apparent that the said advertisement indicated minimum educational qualification, the age of the applicant, the number of vacancies and the mode of recruitment. It was further stipulated that the selection of the candidates will be by the written test in General Knowledge, General English, General Hindi and thereafter the interview. In the aforesaid clear enunciation of the mode of recruitment to the post by the competent Executive Authority, the contention of Dr. Rajiv Dhawan that the appointments of the private respondents had been made without any selection cannot be accepted. Dr.

Rajiv Dhawan alternatively argued that the second part of the definition in Rule 3(a) would also be applicable to the case in hand inasmuch as though the temporary appointment of the private respondents to the Land and Building Tax Department had been made by the order of the Government for which there was no service rules and as such, the appointment cannot be ad hoc. This submission also cannot be accepted on a true interpretation of the second part of Rule 3(a). To attract the second part the conditions to be fulfilled are (1) there does not exist any Service Rule for the appointment (2) the appointment is made under the orders of the government and (3) such appointment is made otherwise than on the recommendation of the Commission if the post comes within the purview of the Commission. It is nobodys case that the posts created under the special scheme to which the private respondents had been recruited in the Land and Building Tax Department do come within the purview of the Service Commission. In such a case if there is no service rules appointment is made by an order of the government to the post then also it will not be an ad hoc appointment in terms of Rule 3(a) of the Absorption Rules.

But as we have already stated, expression Service Rule cannot be given a restrictive meaning in the absence of the definition of the said term and, therefore, it would include within its sweep the necessary Government Order providing the method of recruitment. In the case in hand in view of our conclusion, the Government Order did prescribe the method of recruitment it would be difficult for us to hold that there was no Rule existing providing the mode of recruitment. Consequently even the second part of the definition of ad hoc appointment contained in Rule 3 (a) of the Absorption Rules to have no application. The contention of Dr. Dhawan, therefore, cannot be sustained.

The last submission of Dr. Dhawan that the status and character of service which the surplus personnel like private respondents were holding, prior to their absorption must get its colour from the nature of absorption itself, as indicated in Rule 7 equally does not appeal to us. Rule 7 merely provides the procedure for absorption of the surplus personnel. After the constituted Absorption Committee allots surplus personnel to different departments for appointment, the appointing authority has to issue orders of appointment of such personnel either on substantive or on officiating or on temporary or on ad hoc basis as indicated in Rule 7. This absorption in question or such orders of appointment issued by the appointing authority under Rule 7 cannot have any bearing to decide as to what was the status and nature of service these surplus personnel were holding prior to being declared as surplus. For the purpose of Rule 15 what is necessary to be examined is the question as to whether the absorbed surplus employees were holding the post from where they are declared to be surplus on substantive basis, and if so, from what date. That question has to be answered on the basis of relevant factors as already discussed, namely nature of post, the nature of test or selection held for filling up the post, the period of duration with which incumbent availed the post and all other relevant materials. This being the position, we do not find any substance with last submission of Dr. Rajiv Dhawan. In the aforesaid premises, these appeals fail and are dismissed. There will be no order as to costs.

The post Ramesh K. Sharma Vs. Rajasthan Civil Services appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
NARMADA BACHAO ANDOLAN …PETITIONER
Vs.
UNION OF INDIA AND OTHERS …RESPONDENT
DATE OF JUDGMENT: 18/10/2000
BENCH: B. N. KIRPAL , DR. A. S. ANAND

J U D G M E N T

KIRPAL,J.

Narmada is the fifth largest river in India and largest West flowing river of the Indian Peninsula. Its annual flow approximates to the combined flow of the rivers Sutlej, Beas and Ravi. Originating from the Maikala ranges at Amarkantak in Madhya Pradesh, it flows Westwards over a length
of about 1312 km. before draining into the Gulf of Cambay, 50 km. West of Bharuch City. The first 1077 km. stretch is in Madhya Pradesh and the next 35 km. stretch of the river forms the boundary between the States of Madhya Pradesh and Maharasthra. Again, the next 39 km. forms the
boundary between Maharasthra and Gujarat and the last stretch of 161 km. lies in Gujarat.

The Basin area of this river is about 1 lac sq. km. The utilisation of this river basin, however, is hardly about 4%. Most of the water of this peninsula river goes into the sea. Inspite of the huge potential, there was hardly any development of the Narmada water resources prior to
independence.

In 1946, the then Government of Central Provinces and Berar and the then Government of Bombay requested the Central Waterways,
Irrigation and Navigation Commission (CWINC) to take up investigations on the Narmada river system for basin-wise development of the river with flood control, irrigation, power and extension of navigation as the objectives in view. The study commenced in 1947 and most of the sites were inspected by engineers and geologists who recommended detailed investigation for seven projects. Thereafter in 1948, the Central Ministry of Works, Mines & Power appointed an Ad-hoc Committee headed by Shri A.N. Khosla,
Chairman, CWINC to study the projects and to recommend the priorities.
This Ad-hoc Committee recommended as an initial step detailed
investigations for the following projects keeping in view the availability of men, materials and resources:

Bargi Project
Tawa Project near Hoshangabad
Punasa Project and
Broach Project

Based on the recommendations of the aforesaid Ad-hoc Committee, estimates for investigations of the Bargi, Tawa, Punasa (Narmadasagar) and Broach Projects were sanctioned by the Government of India in March, 1949.

The Central Water & Power Commission carried out a study of the hydroelectric potential of the Narmada basin in the year 1955. After the investigations were carried out by the Central Water & Power Commission,

the Navagam site was finally decided upon in consultation with the erstwhile Government of Bombay for the construction of the dam. The Central Water
& Power Commission forwarded its recommendations to the then
Government of Bombay. At that time the implementation was contemplated
in two stages. In Stage-I, the Full Reservoir Level (hereinafter referred to as FRL) was restricted to 160 ft. with provision for wider foundations to enable raising of the dam to FRL 300 ft. in Stage-II. A high level canal was envisaged in Stage-II. The erstwhile Bombay Government suggested two modifications, first the FRL of the dam be raised from 300 to 320 ft. in
Stage-II and second the provision of a power house in the river bed and a power house at the head of the low level canal be also made. This project was then reviewed by a panel of Consultants appointed by the Ministry of Irrigation & Power who in a report in 1960 suggested that the two stages of the Navagam dam as proposed should be combined into one and the dam
be constructed to its final FRL 320 ft. in one stage only. The Consultants also stated that there was scope for extending irrigation from the high level canal towards the Rann of Kutch.

With the formation of the State of Gujarat on 1st May, 1960, the Narmada Project stood transferred to that State. Accordingly, the Government of Gujarat gave an administrative approval to Stage-I of the Narmada Project in February, 1961. The Project was then inaugurated by
late Pandit Jawaharlal Nehru on 5th April, 1961. The preliminary works such as approach roads & bridges, colonies, staff buildings and remaining investigations for dam foundations were soon taken up.

The Gujarat Government undertook surveys for the high level canal in 1961. The submergence area survey of the reservoir enabled
assessment of the storage capability of the Navagam reservoir, if its height should be raised beyond FRL 320 ft. The studies indicated that a reservoir with FRL + 460 ft. would enable realisation of optimum benefits from the river by utilising the untapped flow below Punasa dam and would make it possible to extend irrigation to a further area of over 20 lakh acres.
Accordingly, explorations for locating a more suitable site in the narrower gorge portion were taken in hand and finally in November, 1963, site No. 3 was found to be most suitable on the basis of the recommendations of the Geological Survey of India and also on the basis of exploration and
investigations with regard to the foundation as well as construction materials available in the vicinity of the dam site.

In November, 1963, the Union Minister of Irrigation & Power held a meeting with the Chief Ministers of Gujarat and Madhya Pradesh at Bhopal.
As a result of the discussions and exchange of views, an agreement (Bhopal Agreement) was arrived at. The salient features of the said Agreement were:

That the Navagam Dam should be built to FRL 425 by the
Government of Gujarat and its entire benefits were to be enjoyed by the State of Gujarat.

Punasa dam (Madhya Pradesh) should be built to FRL 850. The costs and power benefits of Punasa Power Project shall be shared in the ratio 1:2 between the Governments of Gujarat and Madhya Pradesh. Out
of the power available to Madhya Pradesh half of the quantum was to be given to the State of Maharashtra for a period of 25 years for which the State of Maharashtra was to provide a loan to the extent of one-third the cost of Punasa Dam. The loan to be given by the State of Maharashtra was to be returned within a period of 25 years.

Bargi Project was to be implemented by the State of Madhya Pradesh, Bargi Dam was to be built to FRL 1365 in Stage I and FRL 1390 in Stage II and the Governments of Gujarat and Maharashtra were to give a total loan assistance of Rs. 10 crores for the same.

In pursuance of the Bhopal Agreement, the Government of Gujarat prepared a brief project report envisaging the Navagam Dam FRL 425 ft. and submitted the same to the Central Water and Power Commission under Gujarat Governments letter dated 14th February, 1964. Madhya Pradesh, however, did not ratify the Bhopal Agreement. In order to overcome the stalemate following the rejection of the Bhopal Agreement by Madhya Pradesh, a High Level Committee of eminent engineers headed by Dr. A.N. Khosla, the then Governor of Orissa, was constituted on 5th September,
1964 by the Government of India. The terms of reference of this Committee were decided by the Government of India in consultation with the States of Madhya Pradesh, Maharashtra and Gujarat. The same read as under:

Drawing up of a Master Plan for the optimum and integrated development of the Narmada water resources.
The phasing of its implementation for maximum development of the resources and other benefits.
The examination, in particular, of Navagam and alternative projects, if any, and determining the optimum reservoir level or levels.
Making recommendations of any other ancillary matters.

The Khosla Committee submitted the unanimous report to the Government of India in September, 1965 and recommended a Master Plan
of the Narmada water development. In Chapter XI of the said Report, the Khosla Committee outlined its approach to the plan of Narmada development. An extract from this Chapter is reproduced below:

11.1 In their meeting from 14th to 18th December, 1964 at which the State representatives were also present, the Committee laid down
the following basic guidelines in drawing up the Master Plan for the optimum and integrated development of the Narmada water
resources:-

National interest should have over-riding priority. The plan should, therefore, provide for maximum benefits in respect of
irrigation, power generation, flood control, navigation etc. irrespective of State boundaries;

Rights and interests of State concerned should be fully safeguarded subject to (1) above;

Requirements of irrigation should have priority over those of power;

Subject to the provision that suitable apportionment of water between irrigation and power may have to be considered, should it
be found that with full development of irrigation, power production is unduly affected;

Irrigation should be extended to the maximum area within
physical limits of command, irrespective of State boundaries, subject
to availability of water; and in particular, to the arid areas along the international border with Pakistan both in Gujarat and Rajasthan to encourage sturdy peasants to settle in these border areas (later events have confirmed the imperative need for this); and

All available water should be utilised to the maximum extent possible for irrigation and power generation and, when no irrigation is possible, for power generation. The quantity going waste to the sea without doing irrigation or generating power should be kept to the un-avoidable minimum.

The Master Plan recommended by the Khosla Committee envisaged
12 major projects to be taken up in Madhya Pradesh and one, viz., Navagam in Gujarat. As far as Navagam Dam was concerned, the Committee recommended as follows:-

The terminal dam should be located at Navagam.
The optimum FRL of the Navagam worked out to RL 500 ft..
The FSL (Full Supply Level ) of the Navagam canal at off-take should be RL 300 ft..
The installed capacity at the river bed power station and canal power station should be 1000 mw and 240 mw respectively with one stand-by unit in each power station (in other words the total installed capacity at Navagam would be 1400 mw).
The benefits of the Navagam Dam as assessed by the Khosla Committee were as follows:-

Irrigation of 15.80 lakh hectares (39.4 lakh acres) in Gujarat and 0.4 lakh hectares (1.00 lakh acres) in Rajasthan. In addition, the Narmada waters when fed into the existing Mahi Canal system
would release Mahi water to be diverted on higher contours enabling additional irrigation of 1.6 to 2.0 lakh hectares (4 to 5 lakh acres) approximately in Gujarat and 3.04 lakh hectares (7.5 lakh acres) in Rajasthan.

Hydro-power generation of 951 MW at 60% LF in the
mean year of development and 511 MW on ultimate development of irrigation in Gujarat, Madhya Pradesh, Maharashtra and Rajasthan.

The Khosla Committee stressed an important point in favour of high Navagam Dam, namely, additional storage. They emphasized that this
additional storage will permit greater carryover capacity, increased power production and assured optimum irrigation and flood control and would minimise the wastage of water to the sea. The Khosla Committee also observed that instead of higher Navagam Dam as proposed, if Harinphal or Jalsindhi dams were raised to the same FRL as at Navagam, the
submergence would continue to remain about the same because the cultivated and inhabited areas lie mostly above Harinphal while in the intervening 113 km (70 mile) gorge between Harinphal and Navagam, there was very little habitation or cultivated areas.
The Khosla Committee report could not be implemented on account
of disagreement among the States. On 6th July, 1968 the State of Gujarat made a complaint to the Government of India under Section 3 of the Inter- State Water Disputes Act, 1956 stating that a water dispute had arisen between the State of Gujarat and the Respondent States of Madhya
Pradesh and Maharashtra over the use, distribution and control of the waters of the Inter-State River Narmada. The substance of the allegation was that executive action had been taken by Maharashtra and Madhya Pradesh which had prejudicially affected the State of Gujarat and its
inhabitants. The State of Gujarat objected to the proposal of the State of Madhya Pradesh to construct Maheshwar and Harinphal Dams over the
river Narmada in its lower reach and also to the agreement reached between the States of Madhya Pradesh and Maharashtra to jointly construct the Jalsindhi Dam over Narmada in its course between the two
States. The main reason for the objection was that if these projects were implemented, the same would prejudicially affect the rights and interests of Gujarat State by compelling it to restrict the height of the dam at Navagam to FRL 210 ft. or less. Reducing the height of the dam would mean the permanent detriment of irrigation and power benefits that would be available to the inhabitants of Gujarat and this would also make it impossible for Gujarat to re-claim the desert area in the Ranns of Kutch. According to the State of Gujarat, the principal matters in disputes were as under:

The right of the State of Gujarat to control and use the waters of the Narmada river on well-accepted principles applicable to the use of waters of inter-State rivers;

the right of the State of Gujarat to object to the arrangement between the State of Madhya Pradesh and
the State of Maharashtra for the development of Jalsindhi dam;

the right of the State of Gujarat to raise the Navagam dam to an optimum height commensurate with the
efficient use of Narmada waters including its control for providing requisite cushion for flood control; and

the consequential right of submergence of area in the States of Madhya Pradesh and Maharashtra and areas
in the Gujarat State.

Acting under Section 4 of the Inter-State Water Disputes Act, 1956, the Government of India constituted a Tribunal headed by Honble Mr.
Justice V. Ramaswamy, a retired Judge of this Court. On the same day, the Government made a reference of the water dispute to the Tribunal. The Reference being in the following terms:

In exercise of the powers conferred by sub-section (1) of Section 5 of the Inter-State Water Disputes Act, 1956 (33 of 1956), the Central Government hereby refers to the Narmada Water
Disputes Tribunal for adjudication of the water dispute regarding the inter-State river, Narmada, and the river-valley thereof, emerging from letter No. MIP-5565/C-10527-K dated the 6th July, 1968, from the Government of Gujarat.

On 16th October, 1969, the Government of India made another reference of certain issues raised by the State of Rajasthan to the said Tribunal.
The State of Madhya Pradesh filed a Demurrer before the Tribunal
stating that the constitution of the Tribunal and reference to it were ultra vires of the Act. The Tribunal framed 24 issues which included the issues relating to the Gujarat having a right to construct a high dam with FRL 530 feet and a canal with FSL 300 feet or thereabouts. Issues 1(a), 1(b), 1(A), 2,3, and 19 were tried as preliminary issues of law and by its decision dated 23rd February, 1972, the said issues were decided against the respondents herein. It was held that the Notification of the Central Government dated 16th October, 1969 referring the matters raised by the State of Rajasthan by its complaint was ultra vires of the Act but constitution of the Tribunal and making a reference of the water dispute regarding the Inter-State river Narmada was not ultra vires of the Act and the Tribunal had jurisdiction to
decide the dispute referred to it at the instance of State of Gujarat. It further held that the proposed construction of the Navagam project involving
consequent submergence of portions of the territories of Maharashtra and Madhya Pradesh could form the subject matter of a water dispute within
the meaning of Section 2(c) of the 1956 Act. It also held that it had the jurisdiction to give appropriate direction to Madhya Pradesh and Maharashtra to take steps by way of acquisition or otherwise for making submerged land available to Gujarat in order to enable it to execute the Navagam Project and the Tribunal had the jurisdiction to give consequent directions to Gujarat and other party States regarding payment of compensation to Maharashtra and Madhya Pradesh, for giving them a
share in the beneficial use of Navagam dam, and for rehabilitation of displaced persons.

Against the aforesaid judgment of the Tribunal on the preliminary issues, the States of Madhya Pradesh and Rajasthan filed appeals by special leave to this Court and obtained a stay of the proceedings before
the Tribunal to a limited extent. This Court directed that the proceedings before the Tribunal should be stayed but discovery, inspection and other miscellaneous proceedings before the Tribunal may go on. The State of Rajasthan was directed to participate in these interlocutory proceedings.

It appears that on 31.7.1972, the Chief Ministers of Madhya Pradesh, Maharasthra, Gujarat and Rajasthan had entered into an agreement to

compromise the matters in dispute with the assistance of Prime Minister of India. This led to a formal agreement dated 12th July, 1974 being arrived at between the Chief Ministers of Madhya Pradesh, Maharashtra & Rajasthan
and the Advisor to the Governor of Gujarat on a number of issues which the Tribunal otherwise would have had to go into. The main features of the Agreement, as far as this case is concerned, were that the quantity of water in Narmada available for 75% of the year was to be assessed at 28 million acre feet and the Tribunal in determining the disputes referred to it was to proceed on the basis of this assessment. The net available quantity of water for use in Madhya Pradesh and Gujarat was to be regarded as 27.25 million acre feet which was to be allocated between the States. The height of the Navagam Dam was to be fixed by the Tribunal after taking into consideration various contentions and submissions of the parties and it was agreed that the appeals filed in this Court by the States of Madhya Pradesh and Rajasthan would be withdrawn. It was also noted in this agreement
that development of Narmada should no longer be delayed in the best regional and national interests.

After the withdrawal of the appeals by the States of Madhya Pradesh and Rajasthan, the Tribunal proceeded to decide the remaining issues between the parties.

On 16th August, 1978, the Tribunal declared its Award under Section 5(2) read with Section 5(4) of the Inter-State Water Disputes Act, 1956. Thereafter, reference numbers 1,2,3,4 & 5 of 1978 were filed by the Union of India and the States of Gujarat, Madhya Pradesh, Maharashtra
and Rajasthan respectively under Section 5(3) of the Inter-State Water Disputes Act, 1956. These references were heard by the Tribunal, which on 7th December, 1979, gave its final order. The same was published in the extraordinary Gazette by the Government of India on 12th December, 1979.
In arriving at its final decision, the issues regarding allocation, height of dam, hydrology and other related issues came to be subjected to
comprehensive and thorough examination by the Tribunal. Extensive studies were done by the Irrigation Commission and Drought Research Unit of India, Meteorological Department in matters of catchment area of Narmada Basin, major tributaries of Narmada Basin, drainage area of
Narmada Basin, climate, rainfall, variability of rainfall, arid and semi-arid zones and scarcity area of Gujarat. The perusal of the report shows that
the Tribunal also took into consideration various technical literature before giving its Award.

AWARD OF THE TRIBUNAL

The main parameters of the decision of the Tribunal were as under:
A) DETERMINATION OF THE HEIGHT OF SARDAR SAROVAR DAM

The height of the Sardar Sarovar Dam was determined at FRL 455
ft.. The Tribunal was of the view that the FRL +436 ft. was required for irrigation use alone. In order to generate power throughout the year, it would be necessary to provide all the live storage above MDDL for which an FRL +453 ft. with MDDL + 362 ft. would obtain gross capacity of 7.44 MAF. Therefore, the Tribunal was of the view that FRL of the Sardar Sarovar Dam should be + 455 ft. providing
gross storage of 7.70 MAF. It directed the State of Gujarat to took up and complete the construction of the dam.

Geological and Seismological aspects of the dam site.

The Tribunal accepted the recommendations of the Standing Committee under Central Water & Power Commission that there should be seismic co-efficient of 0.10 g for the dam.

RELIEF AND REHABILITAION:

The final Award contained directions regarding submergence, land acquisition and rehabilitation of displaced persons. The award defined the meaning of the land, oustee and family. The Gujarat Government was to pay to Madhya Pradesh and Maharasthra all
costs including compensation, charges, expenses incurred by them for and in respect of compulsory acquisition of land. Further, the
Tribunal had provided for rehabilitation of oustees and civic amenities to be provided to the oustees. The award also provided that if the State of Gujarat was unable to re-settle the oustees or the oustees being unwilling to occupy the area offered by the States, then the oustees will be re-settled by home State and all expenses for this
were to be borne by Gujarat. An important mandatory provision regarding rehabilitation was the one contained in Clause XI sub- clause IV(6)(ii) which stated that no submergence of any area would take place unless the oustees were rehabilitated.

ALLOCATION OF THE NARMADA WATERS:
The Tribunal determined the utilizable quantum of water of the Narmada at Sardar Sarovar Dam site on the basis of 75%
dependability at 28 MAF. It further ordered that out of the utilizable quantum of Narmada water, the allocation between the States should
be as under:

Madhya Pradesh : 18.25 MAF
Gujarat : 9.00 MAF Rajasthan : 0.50 MAF Maharasthra : 0.25 MAF

PERIOD OF NON REVIEWABILITY OF CERTAIN AWARD TERMS:

The Award provided for the period of operation of certain clauses of the final order and decision of the Tribunal as being subject to review only after a period of 45 years from the date of the publication of the decision of the Tribunal in the official gazette. What is important to note however is that the Tribunals decision contained in clause II relating to determination of 75% dependable flow as 28 MAF was
non-reviewable. The Tribunal decision of the determination of the utilizable quantum of Narmada water at Sardar Sarovar Dam site on the basis of 75% dependability at 28 MAF is not a clause which is included as a clause whose terms can be reviewed after a period of
45 years.

The Tribunal in its Award directed for the constitution of an inter- State Administrative Authority i.e. Narmada Control Authority for the purpose of securing compliance with and implementation of the decision
and directions of the Tribunal. The Tribunal also directed for constitution of a Review Committee consisting of the Union Minister for Irrigation (now substituted by Union Minister for Water Resources) as its Chairperson and
the Chief Ministers of Madhya Pradesh, Maharashtra, Gujarat and Rajasthan as its members. The Review Committee might review the decisions of the Narmada Control Authority and the Sardar Sarovar Construction Advisory Committee. The Sardar Sarovar Construction Advisory Committee headed by the Secretary, Ministry of Water Resources
as its Chairperson was directed to be constituted for ensuring efficient, economical and early execution of the project .

Narmada Control Authority is a high powered committee having the Secretary, Ministry of Water Resources, Government of India as its Chairperson, Secretaries in the Ministry of Power, Ministry of Environment and Forests, Ministry of Welfare, Chief Secretaries of the concerned four States as Members. In addition thereto, there are number of technical persons like Chief Engineers as the members.

Narmada Control Authority was empowered to constitute one or more sub-committees and assign to them such of the functions and delegate such of its powers as it thought fit. Accordingly, the Narmada Control Authority constituted the following discipline based sub-groups:

Resettlement and Rehabilitation sub-group under the Chairmanship of Secretary, Ministry of Welfare;

Rehabilitation Committee under Secretary, Minister of
Welfare to supervise the rehabilitation process by undertaking visits to R&R sites and submergence villages.

Environment Sub-group under the Chairmanship of Secretary, Ministry of Environment and Forests;

Hydromet Sub-group under the Chairmanship of Member (Civil), Narmada Control Authority;

Power Sub-group under the Chairmanship of Member (Power) Narmada Control Authority;

Narmada main Canal Sub-committee under the chairmanship of Executive Member, Narmada Conrol Authority.

The Award allocated the available water resources of the Narmada
river between the four States. Based on this allocation, an overall plan for their utilisation and development had been made by the States. Madhya Pradesh was the major sharer of the water. As per the water resources development plan for the basin it envisaged in all 30 major dams, 135
medium dam projects and more than 3000 minor dams. The major terminal dam at Sardar Sarovar was in Gujarat, the remaining 29 being in Madhya Pradesh. Down the main course of the river, the four major dams were the Narmada Sagar (now renamed as Indira Sagar), Omkareshwar and
Maheshwar all in Madhya Pradesh and Sardar Sarovar in Gujarat.
Rajasthan was to construct a canal in its territory to utilize its share of 0.5 MAF.

Relavant Details of the Sardar Sarovar Dam:

As a result of the Award of the Tribunal, the Sardar Sarovar Dam and related constructions, broadly speaking, are to comprise of the following:
Main dam across the flow of the river with gates above the
crest level to regulate the flow of water into the Narmada Main Canal.

An underground River Bed Power through which a portion of
the water is diverted to generate power (1200 MW). This water joins the main channel of the Narmada river downstream of the dam.

A saddle dam located by the side of main reservoir through which water to the main canal system flows.

A Canal Head Power House located at the toe of the saddle
dam, through which the water flowing to the main canal system is to be used to generate power (250 MW).

The main canal system known as Narmada main canal 458
KM. long which is to carry away the water meant for irrigation and drinking purposes to the canal systems of Gujarat and Rajasthan.

Expected benefits from the project:

The benefits expected to flow from the implementation of the Sardar Sarovar Project had been estimated as follows:

Irrigation: 17.92 lac hectare of land spread over 12 districts, 62 talukas and 3393 villages (75% of which is drought-prone areas) in

Gujarat and 73000 hectares in the arid areas of Barmer and Jallore districts of Rajasthan.

Drinking Water facilities to 8215 villages and 135 urban centers in Gujarat both within and outside command. These include 5825 villages and 100 urban centers of Saurashtra and Kachchh which are outside the command. In addition, 881 villages affected due to high contents of fluoride will get potable water.
Power Generation: 1450 Megawatt. Annual Employment Potential:
7 lac man-years during construction
6 lac man-years in post construction.

Protection against advancement of little Rann of Kutch and Rajasthan desert.

Flood protection to riverine reaches measuring 30,000 hac, 210 villages including Bharuch city and 7.5 lac population.

Benefits to:

Dhumkhal Sloth Bear Sanctuary.
Wild Ass Sanctuary in Little Rann of Kachchh
Black Buck Sanctuary at Velavadar.
Great Indian Bustard Sanctuary in Kachchh
Nal Sarovar Bird Sanctuary.

Development of fisheries: Deepening of all village tanks of
command which will increase their capacities, conserve water, will recharge ground water, save acquisition of costly lands for getting earth required for constructing canal banks and will reduce health hazard.

Facilities of sophisticated communication system in the entire command.

Increase in additional annual production on account of

(Rs.in crores)
Agricultural production
900
Domestic water supply
100
Power Generation
440

POST AWARD CLEARANCES:
——–
Total 1400
——–

In order to meet the financial obligations, consultations had started in 1978 with the World Bank for obtaining a loan. The World Bank sent its Reconnaissance Mission to visit the project site and carried out the necessary inspection. In May, 1985, the Narmada Dam and Power Project and Narmada Water Delivery and Drainage Project were sanctioned by the World Bank under International Development Agency, credit No. 1552.
Agreement in this respect was signed with the Bank on 10.5.1985 and credit was to be made available from 6th January, 1986.

With regard to the giving environmental clearance, a lot of discussion took place at different levels between the Ministry of Water Resources and
the Ministry of Environment. Ultimately on 24th June, 1987 the Ministry of Environment and Forests, Government of India accorded clearance subject
to certain conditions. The said Office Memorandum containing the environmental clearance reads as follows:

OFFICE MEMORANDUM

Subject : Approval of Narmada Sagar Project, Madhya Pradesh and Sardar Sarovar Project, Gujarat from environmental angle.

The Narmada Sagar Project, Madhya Pradesh and Sardar Sarovar Project Gujarat have referred to this Department for environmental clearance.

2. On the basis of examination of details on these projects by the Environmental Appraisal Committee for River Valley Projects and discussions with the Central and State authorities the following details were sought from the project authorities:

Rehabilitation Master Plan
Phased Catchment Area Treatment Scheme
Compensatory Afforestation Plan
Command Area Development
Survey of Flora and Fauna
Carrying capacity of surrounding area.
Seismicity and
Health Aspects

Field surveys are yet to be completed. The first set of information hash been made available and complete details have been assured to be furnished in 1989.

The NCA has been examined and its terms of reference have been amplified to ensure that environmental safeguard measures are planned and implemented in depth and in its
pace of implementation pari passu with the progress of work on the projects.

After taking into account all relevant facts the Narmada Sagar Project, Madhya Pradesh and the Sardar Sarovar Project, Gujarat State are hereby accorded environmental clearance subject to the following conditions.

The Narmada Control Authority (NCA)will ensure that environmental safeguard measures are planned and implemented pari passu with progress of work on project.

The detailed surveys/studies assured will be carried out as per the schedule proposed and details made available to the Department for assessment.

The Catchment Area treatment programme and the Rehabilitation plans be so drawn as to be completed ahead of reservoir filling.

The Department should be kept informed of progress on various works periodically.

Approval under Forest (Conservation) Act, 1980 for diversion of forest land will be obtained separately. No work should be initiated on forest area prior to this approval.

Approval from environmental and forestry angles for any other irrigation, power or development projects in the Narmada Basin should be obtained separately.

Sd/-

(S.MUDGAL) DIRECTOR(IA)

In November, 1987 for monitoring and implementation of various environmental activities effectively, an independent machinery of Environment Sub-Group was created by Narmada Control Authority. This Sub-Group was appointed with a view to ensure that the environmental safeguards were properly planned and implemented. This Sub-Group is headed by the Secretary, Ministry of Environment and Forests, Government of India, as its Chairperson and various other independent experts in various fields relating to environment as its members.

After the clearance was given by the Ministry of Environment and Forests, the Planning Commission, on 5th October, 1988, approved investment for an estimated cost of Rs. 6406/- crores with the direction to comply with the conditions laid down in the environment clearance accorded on 24th June, 1987.

According to the State of Gujarat and Union of India, the studies as required to be done by the O.M. dated 24th June, 1987, whereby environmental clearance was accorded, have been undertaken and the requisite work carried out. The construction of the dam had commenced in 1987.

In November, 1990 one Dr. B.D. Sharma wrote a letter to this Court for setting up of National Commission for Scheduled Castes and Scheduled Tribes including proper rehabilitation of oustees of Sardar Sarovar Dam.
This letter was entertained and treated as a writ petition under Article 32 of the Constitution being Writ Petition No. 1201 of 1990.

On 20th September, 1991, this Court in the said Writ Petition bearing No. 1201 of 1990 gave a direction to constitute the Committee headed by Secretary (Welfare) to monitor the rehabilitation aspects of Sardar Sarovar Project.
The Narmada Bachao Andolan, the petitioner herein, had been in the forefront of agitation against the construction of the Sardar Sarovar Dam. Apparently because of this, the Government of India, Ministry of Water Resources vide Office Memorandum dated 3rd August, 1993 constituted a
Five Member Group to be headed by Dr. Jayant Patil, Member, Planning Commission and Dr. Vasant Gowarikar, Mr. Ramaswamy R. Iyer, Mr. L.C. Jain and Dr. V.C. Kulandaiswamy as its members to continue discussions with the Narmada Bachao Andolan on issues relating to the Sardar Sarovar
Project. Three months time was given to this Group to submit its report.

During this time, the construction of the dam continued and on 22nd February, 1994 the Ministry of Water Resources conveyed its decision
regarding closure of the construction sluices. This decision was given effect to and on 23rd February, 1994 closure of ten construction sluices was effected.

In April, 1994 the petitioner filed the present writ petition inter alia praying that the Union of India and other respondents should be restrained
from proceeding with the construction of the dam and they should be ordered to open the aforesaid sluices. It appears that the Gujarat High
Court had passed an order staying the publication of the report of the Five Member Group established by the Ministry of Water Resources. On 15th November, 1994, this Court called for the report of the Five Member Group and the Government of India was also directed to give its response to the said report.

By order dated 13th December, 1994, this Court directed that the report of the Five Member Group be made public and responses to the
same were required to be filed by the States and the report was to be

considered by the Narmada Control Authority. This Report was discussed by the Narmada Control Authority on 2nd January, 1995 wherein disagreement was expressed by the State of Madhya Pradesh on the
issues of height and hydrology. Separate responses were filed in this Court to the said Five Member Group Report by the Government of India and the Governments of Gujarat and Madhya Pradesh.

On 24th January, 1995, orders were issued by this Court to the Five Member Group for submitting detailed further report on the issues of:

Height
Hydrology
Resettlement and Rehabilitation and environmental matters.

Dr. Patil who had headed the Five Member Group expressed his
unwillingness to continue on the ground of ill-health and on 9th February, 1995, this Court directed the remaining four members to submit their report on the aforesaid issues.

On 17th April, 1985 the Four Member Group submitted its report. The said report was not unanimous, unlike the previous one, and the Members were equally divided. With regard to hydrology, Professor V.C. Kulandaiswamy and Dr. Vasant Gowariker were for adoption of 75% dependable flow of 27 MAF for the design purpose, on the basis of which the Tribunals Award had proceeded. On the other hand, Shri Ramaswamy
R. Iyer and Shri L.C. Jain were of the opinion that for planning purposes, it would be appropriate to opt for the estimate of 23 MAF. With regard to the question relating to the height of the dam, the views of Dr. Gowariker were that the Tribunal had decided FRL 455 ft. after going into exhaustive details including social, financial and technical aspects of the project and that it was not practicable at the stage when an expenditure of Rs. 4000 crores had
been incurred and an additional contract amounting to Rs. 2000 crores entered into and the various parameters and features of the project having been designed with respect to FRL 455 ft. that there should be a reduction of the height of the dam. The other three Members proceeded to answer this question by first observing as follows:

We must now draw conclusions from the foregoing analysis, but a preliminary point needs to be made. The SSP is now in an advanced stage of construction, with the central portion of the
dam already raised to 80 m.; the canal constructed upto a length of 140 Kms. ; and most of the equipment for various components of the project ordered and some of it already wholly or partly manufactured. An expenditure of over Rs. 3800 crores is said to
have been already incurred on the project; significant social costs have also been incurred in terms of displacement and rehabilitation. The benefits for which these costs have been and are being incurred have not materialised yet. In that situation, any one with a concern for keeping project costs under check
and for ensuring the early commencement of benefits would
generally like to accelerate rather than retard the completion of the project as planned. If any suggestion for major changes in
the features of the project at this juncture is to be entertained at all, there will have to be the most compelling reasons for doing so.

It then addressed itself to the question whether there were any compelling reasons. The answer, they felt, depended upon the view they
took on the displacement and rehabilitation problem. The two views which, it examined, were, firstly whether the problem of displacement and rehabilitation was manageable and, if it was, then there would be no case of reduction in the height. On the other hand, if relief and rehabilitation was beset with serious and persistent problems then they might be led to the conclusion that there should be an examination of the possibility of reducing submergence and displacement to a more manageable size. These three

Members then considered the question of the magnitude of the relief and rehabilitation problem. After taking into consideration the views of the States of Madhya Pradesh and Gujarat, the three Members observed as follows:

We find that the Government of Indias idea of phased
construction outlined earlier offers a practical solution; it does not prevent the FRL from being raised to 455 in due course if the necessary conditions are satisfied; and it enables the
Government of Madhya Pradesh to take stock of the position at
436 and call a halt if necessary. We would, however, reiterate the presumption expressed in paragraph 3.9.2. above namely
that no delinking of construction from R&R is intended and that by phased construction the Government of India do not mean merely tiered construction which facilitates controlled submergence in phases. We recommend phased construction in
a literal sense, that is to say, that at each phase it must be ensured that the condition of advance completion of R&R has been fulfilled before proceeding to the next phase (i.e. the
installation of the next tier of the gates). This would apply even to the installation of the first tier. Judicious operation of the gates (while necessary) cannot be a substitute for the aforesaid condition.

The possibility of further construction when the FRL 436 ft. was reached or a stoppage at that stage was left open by the Members. With regard to the environment it observed that this subject had been by and large covered in the first FMG report.

RIVAL CONTENTIONS

On behalf of the petitioners, the arguments of Sh. Shanti Bhushan, learned senior counsel, were divided into four different heads, namely, general issues, issues regarding environment, issues regarding relief and rehabilitation and issues regarding review of Tribunals Award. The petitioners have sought to contend that it is necessary for some independent judicial authority to review the entire project, examine the
current best estimates of all costs (social, environmental, financial), benefits and alternatives in order to determine whether the project is required in its present form in the national interest or whether it needs to be re- structured/modified. It is further the case of the petitioners that no work should proceed till environment impact assessment has been fully done and
its implications for the projects viability being assessed in a transparent and participatory manner. This can best be done, it is submitted, as a part of the comprehensive review of the project.

While strongly championing the cause of environment and of the tribals who are to be ousted as a result of the submergence, it was submitted that the environmental clearance which was granted in 1987 was without any or proper application of mind as complete studies in that behalf
were not available and till this is done the project should not be allowed to proceed further. With regard to relief and rehabilitation a number of contentions were raised with a view to persuade this Court that further submergence should not take place and the height of the dam, if at all it is to be allowed to be constructed, should be considerably reduced as it is not possible to have satisfactory relief and rehabilitation of the oustees as per the Tribunals Award as a result of which their fundamental rights under Article 21 would be violated.

While the State of Madhya Pradesh has partly supported the petitioners inasmuch as it has also pleaded for reduction in the height of the dam so as to reduce the extent of submergence and the consequent displacement, the other States and the Union of India have refuted the contentions of the petitioners and of the State of Madhya Pradesh. While accepting that initially the relief and rehabilitation measures had lagged

behind but now adequate steps have been taken to ensure proper implementation of relief and rehabilitation at least as per the Award. The respondents have, while refuting other allegations, also questioned the
bona fides of the petitioners in filing this petition. It is contended that the cause of the tribals and environment is being taken up by the petitioners not
with a view to benefit the tribals but the real reason for filing this petition is to see that a high dam is not erected per se. It was also submitted that at
this late stage this Court should not adjudicate on the various issues raised specially those which have been decided by the Tribunals Award.

We first propose to deal with some legal issues before considering the various submissions made by Sh. Shanti Bhushan regarding
environment, relief and rehabilitation, alleged violation of rights of the tribals and the need for review of the project.

LATCHES

As far as the petitioner is concerned, it is an anti-dam organisation and is opposed to the construction of the high dam. It has been in existence since 1986 but has chosen to challenge the clearance given in
1987 by filing a writ petition in 1994. It has sought to contend that there was lack of study available regarding the environmental aspects and also
because of the seismicity, the clearance should not have been granted. The rehabilitation packages are dissimilar and there has been no independent study or survey done before decision to undertake the project was taken and construction started.

The project, in principle, was cleared more than 25 years ago when
the foundation stone was laid by late Pandit Jawahar Lal Nehru. Thereafter, there was an agreement of the four Chief Ministers in 1974, namely, the Chief Ministers of Madhya Pradesh, Gujarat, Maharashtra and Rajasthan
for the project to be undertaken. Then dispute arose with regard to the height of the dam which was settled with the award of the Tribunal being given in 1978. For a number of years, thereafter, final clearance was still not given. In the meantime some environmental studies were conducted.
The final clearance was not given because of the environmental concern which is quite evident. Even though complete data with regard to the environment was not available, the Government did in 1987 finally give environmental clearance. It is thereafter that the construction of the dam was undertaken and hundreds of crores have been invested before the petitioner chose to file a writ petition in 1994 challenging the decision to construct the dam and the clearance as was given. In our opinion, the petitioner which had been agitating against the dam since 1986 is guilty of latches in not approaching the Court at an earlier point of time.

When such projects are undertaken and hundreds of crores of public money is spent, individual or organisations in the garb of PIL cannot be permitted to challenge the policy decision taken after a lapse of time. It is against the national interest and contrary to the established principles of law that decisions to undertake developmental projects are permitted to be challenged after a number of years during which period public money has
been spent in the execution of the project.

The petitioner has been agitating against the construction of the dam since 1986, before environmental clearance was given and construction started. It has, over the years, chosen different paths to oppose the dam.
At its instance a Five Member Group was constituted, but its report could not result in the stoppage of construction pari passu with relief and
rehabilitation measures. Having failed in its attempt to stall the project the petitioner has resorted to court proceedings by filing this writ petition long after the environmental clearance was given and construction started. The pleas relating to height of the dam and the extent of submergence,
environment studies and clearance, hydrology, seismicity and other issues, except implementation of relief and rehabilitation, cannot be permitted to be raised at this belated stage.

This Court has entertained this petition with a view to satisfy itself that there is proper implementation of the relief and rehabilitation measurers at least to the extent they have been ordered by the Tribunals Award. In short it was only the concern of this Court for the protection of the fundamental rights of the oustees under Article 21 of the Constitution of India which led to the entertaining of this petition. It is the Relief and Rehabilitation measures that this Court is really concerned with and the
petition in regard to the other issues raised is highly belated. Though it is, therefore, not necessary to do so, we however presently propose to deal
with some of the other issues raised. AWARD-BINDING ON THE STATES
It has been the effort on the part of the petitioners to persuade this
Court to decide that in view of the difficulties in effectively implementing the Award with regard to relief and rehabilitation and because of the alleged adverse impact the construction of the dam will have on the environment, further construction of the dam should not be permitted. The petitioners support the contention on behalf of the State of Madhya Pradesh to the
effect that the height of the dam should be reduced in order to decrease the number of oustees. In this case, the petitioners also submit that with regard to hydrology, the adoption of the figure 27 MAF is not correct and the correct figure is 23 MAF and in view thereof the height of the dam need not be 455 feet.

The Tribunal in this Award has decided a number of issues which
have been summarised hereinabove. The question which arises is as to
whether it is open to the petitioners to directly or indirectly challenge the correctness of the said decision. Briefly stated the Tribunal had in no uncertain terms come to the conclusion that the height of the dam should be
455 ft. It had rejected the contention of the State of Madhya Pradesh for
fixing the height at a lower level. At the same time in arriving at this figure, it had considered the relief and rehabilitation problems and had issued
directions in respect thereof. Any issue which has been decided by the Tribunal would, in law, be binding on the respective states. That this is so has been recently decided by a Constitution Bench of this Court in The
State of Karnataka Vs. State of Andhra Pradesh and others, 2000(3) Scale
505. That was a case relating to a water dispute regarding inter-State river Krishna between the three riparian States and in respect of which the
Tribunal constituted under the Inter-State Water Disputes Act, 1956 had given an Award. Dealing with the Article 262 and the scheme of the Inter- State Water Disputes Act, this Court at page 572 observed as follows:

The inter-State Water Disputes Act having been framed by the Parliament under Article 262 of the Constitution in a complete Act by itself and the nature and character of a decision made thereunder has to be understood in the light of the provisions of the very Act itself. A dispute or difference between two or more State Governments having arisen which is a water dispute under Section 2(C) of the Act and complaint to that effect being made to the Union Government under Section 3 of the said Act the Central Government constitutes a Water Disputes Tribunal for the adjudication of the dispute in question, once it forms the opinion that the dispute cannot be settled by negotiations. The Tribunal
thus constituted, is required to investigate the matters referred to it and then forward to the Central Government a report setting out the facts as found by him and giving its decision on it as provided under sub-Section (2) of Section 5 of the Act. On consideration of such decision of the Tribunal if the Central Government or any State Government is of the opinion that the decision in question requires explanation or that guidance is needed upon any point
not originally referred to the Tribunal then within three months from the date of the decision, reference can be made to the Tribunal for further consideration and the said Tribunal then forwards to the Central Government a further report giving such explanation or

guidance as it deems fit. Thereby the original decision of the Tribunal is modified to the extent indicated in the further decision as provided under Section 5(3) of the Act. Under Section 6 of the Act the Central Government is duty bound to publish the decision
of the Tribunal in the Official Gazette whereafter the said decision becomes final and binding on the parties to the dispute and hash
to be given effect to, by them. The language of the provisions of Section 6 is clear and unambiguous and unequivocally indicates
that it is only the decision of the Tribunal which is required to be published in the Official Gazette and on such publication that decision becomes final and binding on the parties.

Once the Award is binding on the States, it will not be open to a third party like the petitioners to challenge the correctness thereof. In terms of the Award, the State of Gujarat has a right to construct a dam upto the height of
455 ft. and, at the same time, the oustees have a right to demand relief and re-settlement as directed in the Award. We, therefore, do not propose to deal with any contention which, in fact, seems to challenge the correctness of an issue decided by the Tribunal.

GENERAL ISSUSES RELATING TO DIS-PLACEMENT OF TRIBALS AND ALLEGED VIOLATION OF THE RIGHTS UNDER ARTICLE 21 OF THE CONSTITUION:

The submission of Sh. Shanti Bhushan, learned senior counsel for the petitioners was that the forcible displacement of tribals and other marginal farmers from their land and other sources of livelihood for a project which
was not in the national or public interest was a violation of their fundamental rights under Article 21 of the Constitution of India read with ILO Convention
107 to which India is a signatory. Elaborating this contention, it was submitted that this Court had held in a large number of cases that international treaties and covenants could be read into the domestic law of the country and could be used by the courts to elucidate the interpretation of fundamental rights guaranteed by the Constitution. Reliance in support of this contention was placed on Gramaphone Co. of India Ltd. Vs. B.B.
Pandey, 1984(2) SCC 534, PUCL Vs. Union of India, 1997(3) SCC 433 and
CERC Vs. Union of India, 1995(3) SCC 42. In this connection, our attention was drawn to the ILO Convention 107 which stipulated that tribal populations shall not be removed from their lands without their free consent from their habitual territories except in accordance with national laws and regulations
for reasons relating to national security or in the interest of national economic development. It was further stated that the said Convention provided that in such cases where removal of this population is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of lands previously occupied by them, suitable to provide for their present needs and future development. Sh. Shanti Bhushan further contended that while
Sardar Sarovar Project will displace and have an impact on thousands of tribal families it had not been proven that this displacement was required as an exceptional measure. He further submitted that given the seriously flawed assumptions of the project and the serious problems with the rehabilitation
and environmental mitigation, it could not be said that the project was in the best national interest. It was also submitted that the question arose whether the Sardar Sarovar project could be said to be in the national and public interest in view of its current best estimates of cost, benefits and evaluation of alternatives and specially in view of the large displacement of tribals and
other marginal farmers involved in the project. Elaborating this contention, it was contended that serious doubts had been raised about the benefits of the project – the very rationale which was sought to justify the huge displacement and the massive environmental impacts etc. It was contended on behalf of
the petitioners that a project which was sought to be justified on the grounds of providing a permanent solution to water problems of the drought prone
areas of Gujarat would touch only the fringes of these areas, namely, Saurashtra and Kutch and even this water, which was allocated on paper,
would not really accrue due to host of reasons. It was contended that inspite

of concentrating on small scale decentralized measures which were undertaken on a large scale could address the water problem of these drought prone areas. Huge portions of the State resources were being
diverted to the Sardar Sarovar Project and as a result the small projects were ignored and the water problem in these areas persists. It was submitted that the Sardar Sarovar Project could be restructured to minimise the displacement.

Refuting the aforesaid arguments, it has been submitted on behalf of the Union of India and the State of Gujarat that the petitioners have given a highly exaggerated picture of the submergence and other impacts of this project. It was also submitted that the petitioners assertion that there was large-scale re-location and uprooting of tribals was not factually correct.
According to the respondents, the project would affect only 245 villages in Gujarat, Maharashtra and Madhya Pradesh due to pondage and backwater effect corresponding to 1 in 100 year flood. The State-wise break up of affected villages and the number of project affected families (PAFs) shows
that only four villages would be fully affected (three in Gujarat and one in Madhya Pradesh) and 241 would be partially affected (16 in Gujarat, 33 in Maharasthra and 192 in Madhya Pradesh). The total project affected
families who would be affected were 40827. The extent of the submergence was minimum in the State of Madhya Pradesh. The picture of this submergence as per the Government of Madhya Pradesh Action Plan of 1993 is as follows:

Abadi will be fully submerged in 39 villages and partially in 116 villages, agricultural land will be affected upto 10% in 82 villages,
11 to 25% in 32 villages, 26 to 50% in 30 villages, 51 to 75% in 14 villages, 76 to 90% in 4 villages and 100% in only 1 village. In 21 villages, only abadi will be affected and Government land only in 9 villages. Thus, in most of the villages, submergence is only partial.

The submergence area of the SSP can be divided into two areas:
i) Fully tribal, hilly area covering the initial reach of about
105 villages with mainly subsistence economy. It includes 33 villages of Maharasthra, 19 of Gujarat and about 53 of
Madhya Pradesh.

(ii) Mixed population area in the plains of Nimad, with a well developed economy and connected to the mainstream. This
area includes about 140 villages in Madhya Pradesh.

These two areas have quite different topographic and habitation features
which result in totally different types of submergence impacts. The state of the hilly area to be affected by its submergence and where most of the tribal population exists is described by the Government of Madhya Pradesh
Action Plan, 1993 as follows:

The Narmada flows in hilly gorge from the origin to the Arabian Sea. The undulating hilly terrain in the lower submergence area of Sardar Sarovar Project exhibit naked hills and depleted forests. Even small forest animals area very rarely seen because of lack of forest cover and water.
The oft quoted symbiotic living with forests is a misnomer in this area because the depleted forests have nothing to offer but fuel wood. Soil is very poor mostly disintegrated, granite and irrigation is almost nil due to undulating and hilly land.
Anybody visiting this area finds the people desperately sowing even in the hills with steep gradient. Only one rain fed crop of mostly maize is sown and so there is no surplus economy.

PAPs inhabiting these interior areas find generous rehabilitation and resettlement packages as a means to assimilate in the mainstream in the valley.

In 193 villages of Madhya Pradesh to be affected by the project, a very high proportion of the houses would be affected whereas the land
submergence was only 14.1%. The reason for this is that the river bed is a deep gorge for about 116 km. upstream of the dam and as a result the reservoir will be long (214 km), narrow (average width of 1.77 km) and
deep. The result of this is that as one goes further upstream, the houses on the river banks are largely affected while agricultural land which is at a distance from the river banks is spared. A majority of 33014 families of Madhya Pradesh (which would include 15018 major sons) would lose only
their houses and not agricultural lands would be required to be resettled in Madhya Pradesh by constructing new houses in the new abadi. According
to the Award, agricultural land was to be allotted only if the project affected families lost 25% or more of agricultural land and on this basis as per the Government of Madhya Pradesh, only 830 project affected families of
Madhya Pradesh were required to be allotted agricultural land in Madhya Pradesh.

According to the Government of Gujarat the tribals constituted bulk of project affected families who would be affected by the dam in Gujarat and Maharasthra, namely, 97% and 100% respectively. Out of the oustees of project affected families of Madhya Pradesh, tribals constituted only 30% while 70% were non-tribals. The total number of tribal project affected families were 17725 and out of these, 9546 are already re-settled. It was further the case of the respondents that in Madhya Pradesh the agricultural land of the tribal villages was affected on an average to the extent of 28% whereas in the upper reaches i.e. Nimad where the agriculture was
advanced, the extent of submergence, on an average, was only 8.5%. The surveys conducted by HMS Gour University (Sagar), the Monitoring and Evaluation Agency set up by the Government of Madhya Pradesh, reveal that the major resistance to relocation was from the richer, non-tribal
families of Nimad who feared shortage of agriculture labour if the landless labourers from the areas accepted re-settlement. In the Bi-Annual report, 1996 of HMS Gour University, Sagar, it was observed as follows:

The pre-settlement study of submerging villages has revealed
many startling realities. Anti-dam protagonists presents a picture that tribals and backward people are the worst sufferers of this kind of development project. This statement is at least not true in case of the people of these five affected villages. Though, these villages comprise a significant population of tribals and people of weaker sections, but majority of them will not be a victim of displacement. Instead, they will gain from shifting. The present policy of compensation is most beneficial for the lot of weaker section. These people are living either as labourers or marginal farmers. The status of oustee will make them the owner of two hectares of land and a house. In fact, it is the land-owning class which is opposing the construction of dam by playing the card of tribals and weaker sections. The land-owners are presently enjoying the benefit of cheap labour in this part of the region.
Availability of cheap labour is boon for agricultural activities. This makes them to get higher return with less inputs.

It is apparent that the tribal population affected by the submergence would have to move but the rehabilitation package was such that the living condition would be much better than what it was before there. Further more though 140 villages of Madhya Pradesh would be affected in the
plains of Nimad, only 8.5% of the agricultural land of these villages shall come under submergence due to SSP and as such the said project shall

have only a marginal impact on the agricultural productivity of the area.

While accepting the legal proposition that International Treaties and Covenants can be read into the domestic laws of the country the
submission of the respondents was that Article 12 of the ILO Convention No. 107 stipulates that the populations concerned shall not be removed
without their free consent from their habitual territories except in accordance with national laws and regulations relating to national security, or in the interest of national economic development or of the health of the said populations.

The said Article clearly suggested that when the removal of the tribal population is necessary as an exceptional measure, they shall be provided
with land of quality atleast equal to that of the land previously occupied by them and they shall be fully compensated for any resulting loss or injury.
The rehabilitation package contained in the Award of the Tribunal as improved further by the State of Gujarat and the other States prima facie
shows that the land required to be allotted to the tribals is likely to be equal, if not better, than what they had owned.

The allegation that the said project was not in the national or public interest is not correct seeing to the need of water for burgeoning population which is most critical and important. The population of India, which is now
one billion, is expected to reach a figure between 1.5 billion and 1.8 billion in the year 2050, would necessitate the need of 2788 billion cubic meter of
water annually in India to be above water stress zone and 1650 billion cubic metre to avoid being water scarce country. The main source of water in India is rainfall which occurs in about 4 months in a year and the temporal
distribution of rainfall is so uneven that the annual averages have very little significance for all practical purposes. According to the Union of India, one third of the country is always under threat of drought not necessarily due to deficient rainfall but many times due to its uneven occurrence. To feed the increasing population, more food grain is required and effort has to be made
to provide safe drinking water, which, at present, is a distant reality for most of the population specially in the rural areas. Keeping in view the need to augment water supply, it is necessary that water storage capacities have to
be increased adequately in order to ward off the difficulties in the event of monsoon failure as well as to meet the demand during dry season. It is estimated that by the year 2050 the country needs to create storage of at
least 600 billion cubic meter against the existing storage of 174 billion cubic meter.

Dams play a vital role in providing irrigation for food security, domestic and industrial water supply, hydroelectric power and keeping flood waters back. On full development, the Narmada has a potential of irrigating over 6 million hectares of land and generating 3000 mw of power. The present stage of development is very low with only 3 to 4 Maf of waters being used by the party States for irrigation and drinking water against 28 Maf availability of water at 75% dependability as fixed by NWDT and about
100 MW power developed. 85% of the waters are estimated as flowing
waste to sea. The project will provide safe and clean drinking water to 8215 villages and 135 towns in Gujarat and 131 villages in desert areas of Jalore district of Rajasthan, though against these only 241 villages are getting submerged partially and only 4 villages fully due to the project.

The cost and benefit of the project were examined by the World Bank in 1990 and the following passage speaks for itself:

The argument in favour of the Sardar Sarovar Project is that the benefits are so large that they substantially outweigh the costs of the immediate human and environmental disruption. Without the
dam, the long term costs for people would be much greater and lack of an income source for future generations would put increasing pressure on the environment. If the waters of the Narmada river continue to flow to the sea unused there appears to be no alternative to escalating human deprivation, particularly in the dry areas of Gujarat. The project has the potential to feed as many as 20 million people, provide domestic and industrial water for about 30 million, employ about 1 million, and provide valuable peak electric power in an area with high unmet power demand
(farm pumps often get only a few hours power per day). In addition, recent research shows substantial economic multiplier effects (investment and employment triggered by development) from irrigation development. Set against the futures of about
70,000 project affected people, even without the multiplier effect, the ratio of beneficiaries to affected persons is well over 100:1.

There is merit in the contention of the respondents that there would be a positive impact on preservation of ecology as a result from the project. The SSP would be making positive contribution for preservation of environment
in several ways. The project by taking water to drought-prone and arid parts of Gujarat and Rajasthan would effectively arrest ecological degradation which was returning to make these areas inhabitable due to salinity ingress, advancement of desert, ground water depletion, fluoride and nitrite affected water and vanishing green cover. The ecology of water scarcity areas is under stress and transfer of Narmada water to these areas will lead to sustainable agriculture and spread of green cover. There will also be improvement of fodder availability which will reduce pressure on biodiversity and vegetation. The SSP by generating clean eco-friendly hydropower will save the air pollution which would otherwise take place by thermal generation power of similar capacity.

The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were. At the rehabilitation sites they will have more and better
amenities than which they enjoyed in their tribal hamlets. The gradual assimilation in the main stream of the society will lead to betterment and progress.

ENVIRONMENTAL ISSUES

The four issues raised under this head by Sh. Shanti Bhushan are as
under:

Whether the execution of a large project, having diverse and
far reaching environmental impact, without the proper study and understanding of its environmental impact and without proper planning of mitigative measures is a violation of fundamental rights of the affected people guaranteed under Article 21 of the Constitution of India ?

Whether the diverse environmental impacts of the Sardar Sarovar Project have been properly studied and understood ?

Whether any independent authority has examined the environmental costs and mitigative measures to be
undertaken in order to decide whether the environmental costs are acceptable and mitigative measures practical ?

Whether the environmental conditions imposed by the Ministry of Environment have been violated and if so, what is the legal effect of the violations ?

It was submitted by Sh. Shanti Bhushan that a large project having diverse and far reaching environmental impacts in the concerned States
would require a proper study and understanding of the environmental impacts. He contended that the study and planning with regard to environmental impacts must precede construction. According to Sh. Shanti Bhushan, when the environmental clearance was given in 1987, proper
study and analysis of the environmental impacts and mitigative measures, which were required to be taken, were not available and, therefore, this clearance was not valid. The decision to construct the dam was stated to
be political one and was not a considered decision after taking into account the environmental impacts of the project. The execution of SSP without a comprehensive assessment and evaluation of its environmental impacts
and a decision regarding its acceptability was alleged to be a violation of the rights of the affected people under Article 21 of the Constitution of India. It was further submitted that no independent authority has examined
vehemently the environmental costs and mitigative measurers to be undertaken in order to decide whether the environmental costs are acceptable and mitigative measures practical. With regard to the environmental clearance given in June, 1987, the submission of Sh. Shanti Bhushan was that this was the conditional clearance and the conditions imposed by the Ministry of Environment and Forests had been violated.
The letter granting clearance, it was submitted, disclosed that even the basic minimum studies and plans required for the environmental impact assessment had not been done. Further more it was contended that in the year 1990, as the deadline for completion of the studies was not met, the Ministry of Environment and Forests had declared that the clearance had lapsed. The Secretary of the said Ministry had requested the Ministry of Water Resources to seek extension of the clearance but ultimately no extension was sought or given and the studies and action plans continued to lag to the extent that there was no comprehensive environmental impact assessment of the project, proper mitigation plans were absent and the costs of the environmental measures were neither fully assessed nor included in the project costs. In support of his contentions, Sh. Shanti Bhushan relied upon the report of a Commission called the Independent Review or the Morse Commission. The said Commission had been set up
by the World Bank and it submitted its report in June, 1992. In its report, the Commission had adversely commented on practically all aspects of the project and in relation to environment, it was stated as under:

Important assumptions upon which the projects are based are now questionable or are known to be unfounded.
Environmental and social trade-off have been made, and continue to be made, without a full understanding of the consequences. As a result, benefits tend to be over-stated, while social and environmental costs are frequently understated. Assertions have been substituted for analysis.

We think that the Sardar Sarovar Projects as they stand are flawed, that resettlement and rehabilitation of all those displaced by the projects is not possible under the prevailing circumstances, and that the environmental impacts of the projects have not been properly considered or adequately addressed.

The history of environmental aspects of Sardar Sarovar is a history of non-compliance. There is no comprehensive impact statement. The nature and magnitude of
environmental problems and solutions remain elusive.

Sh. Shanti Bhushan submitted that it had become necessary for
some independent judicial authority to review the entire project, examine the current best estimates of all costs (social, environmental, financial), benefits and alternatives in order to determine whether the project is required in its present form in the national interest, or whether it needs to be restructured/modified.

Sh. Shanti Bhushan further submitted that environmental impacts of the projects were going to be massive and full assessment of these impacts had not been done. According to him the latest available studies show that studies and action plans had not been completed and even now they were lagging behind pari passu. It was also contended that mere listing of the studies does not imply that everything is taken care of. Some of the studies were of poor quality and based on improper data and no independent body
had subjected these to critical evaluation. RE: ENVIRONMENTAL CLERANCE:
As considerable stress was laid by Sh. Shanti Bhushan challenging the validity of the environmental clearance granted in 1987 inter alia on the ground that it was not preceded by adequate studies and it was not a considered opinion and there was non-application of mind while clearing the project, we first propose to deal with the contention.
The events after the Award and upto the environmental clearance granted by the Government vide its letter dated 24th June, 1987 would clearly show that some studies, though incomplete, had been made with regard to different aspects of the environment. Learned counsel for the
respondents stated that in fact on the examination of the situation, the claim made with regard to the satisfactory progress was not correct. In order to carry out the directions in the Award about the setting up of an authority, the Inter-State Water Disputes Act, 1956 was amended and Section 6-A was
inserted to set out how a statutory body could be constituted under the Act. On 10th September, 1980 in exercise of the powers conferred by Section 6-
A of the Act the Central Government framed a scheme, constituted the Narmada Control Authority to give effect to the decision of the Award.

In January, 1980, the Government of Gujarat submitted to the Central Water Commission a detailed project report in 14 volumes. This was an elaborate report and dealt with various aspects like engineering details, canal systems, geology of area, coverage of command area etc. On 15th February, 1980 the Central Water Commission referred SSP to the then Department of Environment in Department of Science & Technology.
At that point of time, environmental clearance was only an administrative requirement. An environmental checklist was forwarded to Government of Gujarat on 27th February, 1980 which sought to elucidate information including following ecological aspects:

Excessive sedimentation of the reservoir
Water logging
Increase in salinity of the ground water
Ground water recharge
Health hazard-water borne diseases, industrial pollution etc.
Submergence of important minerals
Submergence of monuments
Fish culture and aquatic life
Plant life-forests
Life of migratory birds
National Park and Sanctuaries
Seismicity due to filling of reservoir

The Government of Gujarat accordingly submitted information from September, 1980 till March, 1983. The information was also submitted on physio-social and economic studies for Narmada Command Area covering
cropping pattern, health aspects, water requirement etc. A note of influence of Navagam dam on fish yield including impact on downstream fisheries
was also submitted.

The techno-economic appraisal of the project was undertaken by the Central Water Commission which examined water availability, command
area development, construction etc. The project was considered in the 22nd meeting of the Technical Advisory Committee on Irrigation, Flood Control and Multi-purpose projects held on 6.1.1983 and found it acceptable subject to environmental clearance.

At this point of time, the matter was handled by the Department of Science and Technology which also had a Department dealing with Environment. Environmental Appraisal Committee of the Department of Environment, then headed by a Joint Secretary, had in its meeting held on
12.4.1983 approved the project, in principle, and required that further data be collected. This Environmental Appraisal Committee dealt with the
project on two other occasions, namely, on 29.3.1985 when it deferred meeting to await report of Dewan Committee on soil conservation and thereafter on 6.12.1985 when it deferred the meeting to await comments from the Forest Department. As stated hereafter, subsequently the Secretary of newly constituted Ministry of Environment and Forests took up further consideration of this project along with other higher officials.
After the project was approved, in principle, studies and collections of data were continuing. In May, 1983 the Narmada Planning Group,
Government of Gujarat after completion of preliminary surveys submitted work plans for various activities such as cropping pattern, health aspects, water requirements, distribution system, lay out and operation, development plan of the command, drainage and ground water development.

In July, 1983, a study report on Ecology and Environmental Impact of Sardar Sarovar Dam and its Environs prepared by MS University was
also submitted by Government of Gujarat, covering the issues as mentioned below:
*Climate
*Geology
*Soil
*Land use
*Forest and Wildlife, Aquatic Vegetation
*Water Regime (Salinity, Tidal movements etc.)
*Fisheries
*Health
*Seismicity

A review meeting was convened by the Secretary, Ministry of Water Resources in January, 1984 which was attended by a representative of the Department of Environment. During this meeting, it was emphasized that the issues regarding catchment area treatment, impact on wildlife, health,
water logging etc. should be studied in depth for assessment. The issue of charging of cost of catchment area treatment to the project was also discussed. To sort out this matter, a meeting was subsequently convened by the Member, Planning Commission on 23rd May, 1984 in which the
Ministry of Environment & Forests took a stand that there was a need for an integrated approach to basin development covering the catchment and
command area. A project report, therefore, should be prepared to cover these aspects. Since the catchment area for Narmada Sagar and Sardar Sarovar was very vast, it was decided that an Inter-Departmental Committee should be set up by the Ministry of Agriculture under the
Chairmanship of Dr. M.L. Dewan. This group could submit its report only in August, 1985 covering areas of catchment of Narmada and Sardar Sarovar
and recommended that at least 25-30% of the area might require treatment for these projects.

The consideration of the project in the Ministry, therefore, got deferred for this report on catchment area treatment. During this time, Government of Madhya Pradesh entrusted the studies on flora for Narmada Valley Project to Botanical Survey of India and other related surveys were being carried out. Even though there was a request on 10th June, 1985
from the Chief Minister of Gujarat to the Minister of State for Environment and Forests for delinking of catchment area treatment works on clearance
of the project, but this request was not agreed.

By this time the approval of SSP was being considered by the Secretary, Ministry of Environment and Forests who invited other high officials in a review meeting which was held on 31st December, 1985 under

his chairmanship. In this meeting, detailed presentations were made by the State officials of Gujarat, Madhya Pradesh and Maharasthra as well as the experts who were involved in preparation of plans. The Secretary, Ministry of Environment and Forests assessed and reviewed readiness on various environmental aspects like Catchment Area Treatment, Compensatory Afforesation, Rehabilitation, Command area Development, Labour force and health issues, aquatic species, seismicity etc. and discussed the available reports in detail in the presence of the officers of the Central/State Governments, Botanical Survey of India, senior officers of Forest Department, Planning Commission, Agriculture Department, Additional.
Inspector of Forests, Government of India, Deputy Inspector General, Assistant Inspector General of Forest, Government of India, senior officers of the Ministry of Environment and Forests, Secretary, Irrigation.

As a follow up, the Government of Maharashtra submitted environmental data regarding affected areas in Maharashtra. This included:

*Impact assessment on wild life
*Impact assessment on genetics, specifically identifying the plant types which are likely to be lost as a result of submergence.

*Socio anthropological studies on tribals

*The suitability of alternative land suggested for compensatory afforestation for growing.

*Data regarding alternate land in large blocks.

*Arrangements made for exploitation of mineral resources going under submergence.

*Alternative fuels to the labourers.

*Micro-climatic changes.

*Arrangements made for treatment of catchment area including swoil conservation afforestation.

*Steps taken for preserving archaeological and historical monuments.

*Proper land use

*Actions taken by Government of Maharashtra in pursuance of Dewan Committee Report.

*Arrangements for monitoring for environmental impact for the project.

*Data related to rehabilitation of project affected persons.

The Government of Gujarat also forwarded to the Government of India work plans on the following:

Forests and Wildlife Fish and Fisheries Health aspects
The work plan on forests and wildlife incorporated actions to be taken on the recommendations of the Inter-Departmental Committee headed by Dr.
Dewan on soil conservation and afforestation works in the catchment area.

In March, 1986, a meeting was convened by the Ministry of Water Resources in order to discuss the issues of fisheries, flora/fauna, health, archaeology with the officers of the Botanical Survey of India, Zoological

Survey of India, Archaeological Survey of India and the officers of the various departments of the State and Centre to gear up the preparation of the environmental work plans. The next meeting was held on 11th April, 1986. The Secretary, Ministry of Environmental and Forests, who chaired
the meeting of senior officials, representatives of States and other agencies, sought additional information to be made available by 30th April, 1986
before assessment and management decision.

In October, 1986, the Ministry of Water Resources prepared and forwarded to the Ministry of Environment and Forests, a note on environmental aspects of the two projects and noted the urgency of the decision. It also considered the importance of the project, should the project be taken at all, environmental aspects of the project and ultimately rehabilitation, compensatory afforestation, fauna and flora, catchment area treatment, public health aspect, prevention of water logging. It then considered what remained to be done and enumerated the same with time schedule as follows:
Madhya Pradesh to complete the detailed survey of population likely to be affected in all phases of N.S.P.

.Three years

Maharashtra to prepare a detailed rehabilitation plan for 33 villages under phase 1 of SSP

.Three years

Madhya Pradesh to identify degraded forest lands twice the forest area to be submerged for compensatory afforestation.

Six months

Survey of flora in Narmada valley assigned to Botanical Survey of India.

Two years

Survey of Wildlife by Zoological Survey of India.

.Two years

Aerial photographs and satellite imagery to be analysed by All India Soil and Land Use Survey Organisation and National Remote Sensing Agency and critically degraded areas in catchment.

Field Surveys Three years.

Pilot studies to determine measures for CAT
In 25000 ha. Three years after Aerial survey.

In this note two options were considered – one to postpone the clearance and the other was to clear it with certain conditions with appropriate monitoring authorities to ensure that the action is taken within the time bound programme. It was concluded that in the light of the position set out, it was necessary that the project should be cleared from the environmental angle, subject to conditions and stipulations outlined.

The Department of Environment and Forests made its own assessment through a note of the Secretary, Ministry of Environment and
Forests. It took the view that following surveys/studies as set out therein might take at least 2-3 years. It noted in this regard that:

The estimate of Ministry of Water Resources on analysis of aerial photographs and satellite imageries as 2-3 years.

Catchment area treatment programme can be formulated by three years thereafter;

Wildlife census by Zoological Survey of India would take at least three years;

Survey by Botanical Survey of India would take three years.

It further took the view that it was essential that there should be a strong management authority. It finally concluded that if the Government should decide to go ahead with the project it should be done with provision of environmental management authority with adequate powers and teeth to
ensure that environment management plan is implemented pari passu with engineering and other works. It concluded that effective implementation of the engineering and environmental measures simultaneously will go a long way and that such a project could be implemented by harmonizing environmental conservation needs with the developmental effort.

The Ministry of Environment and Forests had not given environmental clearance of Narmada Sagar and Sardar Sarovar Dam
despite all discussions which had taken place. The documents filed along with the affidavit of Shri P.K. Roy, Under Secretary, Prime Ministers Office dated 27th April, 2000 indicate that there was difference of opinion with regard to the grant of environmental clearance between the Ministry of
Water Resources and the Ministry of Environment & Forests. This led to
the matter being referred to the Prime Ministers Secretariat for clearance at the highest level. A note dated 20th November, 1986 prepared by the Ministry of Water Resources was forwarded to the Prime Minister
Secretariat as well as to the Ministry of Environment and Forests after dealing with the environmental aspects relating to rehabilitation, catchment area treatment, command area development, compensatory afforestation,
flora and fauna. This note indicated that there were two options with regard to the clearance of the said project. One was to await for two to three years for the completion of the operational plans and other detailed studies and
the second option was that the project should be given the necessary clearance subject to the stipulation with regard to the action to be taken in connection with various environmental aspects and appropriate monitoring arrangements to ensure that the actions were taken in a time bound
manner. The Ministry of Water Resources recommended that it should be possible to give environmental clearance of the project and ensure that the conditions are properly met through a process of clear assignment of responsibility and frequent monitoring. The modus operandi for instituting a monitoring system could be discussed at the meeting.

On 26th November, 1986, a meeting took place which was attended, inter alia, by the Secretary, Ministry of Water Resources, Secretary, Ministry of Environment & Forests, Additional Secretary, Prime Minister Secretariat and representatives of the Governments of Madhya Pradesh and Gujarat
regarding the environmental aspects of the Narmada Sagar and Sardar Sarovar Project. The minutes of the meeting, inter alia, disclosed it was
decided that the Government of Gujarat would identify lands for allocation to the project affected persons of Madhya Pradesh within a specified period of time. The meeting also envisaged the arrangement of a Monitoring and Enforcement Authority to monitor the project and to ensure that the actions on the environmental aspects proceed according to the schedule and pari passu with the rest of the project. This Authority was not to be mainly a advisory one but was to be given executive powers of enforcement
including the power to order stoppage of construction activity in the event of its being of the opinion that there was lack of progress in action on the environmental front.
On 19th December, 1986, the Secretary, Ministry of Environment and
Forests sent to the Secretary to the Prime Minister a combined note on the environmental aspects of both the projects, namely, Narmada Sagar and
Sardar Sarovar Project. In this note, it was, inter alia, stated that there was absence and inadequacy on some important environmental aspects even
though the Sardar Sarovar Project was in a fairly advance stage of preparedness. The note also recommended the establishment of the Narmada Management Authority with adequate powers and teeth to ensure that the Environmental Management Plan did not remain only on paper but was implemented; and implemented pari passu with engineering and other works. In the end, in the note, it was stated as follows:

If, despite the meagre availability of data and the state of readiness on NSP, the Government should decide to go ahead
with the project it is submitted that it should do so only on the basis of providing a Management Authority as outlined above
with the hope that the public opposition, not just by vested interests but by credible professional environmentalists, can be overcome. Effective implementation of the engineering and environmental measurers simultaneously would go a long way to prove that even such a project can be implemented by harmonising environmental conservation needs with the development effort.

The choice is difficult but a choice has to be made.

Along with this note was the statement showing the cost and the benefits of the Narmada Sagar and the Sardar Sarovar dam. The same reads as
follows:
COSTS NARMADASAGAR SARDAR SAROVAR
Dam construction Rs. 1400 crores Rs. 4240 crores (1981 price level ) (1982 price level)

Loss of forest Rs. 320 crores

Environmental cost of loss
of forests Rs. 30923 crores + – Rs. 8190 crore
s

Catchment Area development Rs. 300 crores Not available

Command area development Rs. 243.7 crores Rs. 604.0 crores Rs. 300.0 crores
(conjunctive use)

Loss of Mineral Reserves —- —-

Diversion of 42 km Railway line —– —-

Population affected 129396 (1981 census) 86572 (Excluding population
with land submerged for short period every year)

Land submerged 91348 ha 39134 ha

Benefits

Area irrigated 123000 ha 1792000 ha Net culturable land 140960 ha 212000
0 ha

Power Generations 223.5 MW(firm power) 300 MW

1000 MV (Installed capacity) 1450 (Installed
118.3 MW in 2023 A.D.

After a series of meetings held between the Secretary to Prime Ministers office as well as the Ministry of Water Resources, a detailed note dated 15th January, 1987 was prepared by Mrs. Otima Bordia, Additional Secretary to the Prime Minister. The notes opened by saying that Narmada Sagar and Sardar Sarovar multipurpose projects have been pending
approval of the Government of India for a considerable amount of time. The States of Madhya Pradesh and Gujarat have been particularly concerned
and have been pressing for their clearance. The main issues of environmental concern related to the rehabilitation of the affected population, compensatory afforestation, treatment of the catchment area, command area development, pertaining particularly to drainage, water logging and salinity. The said note mentioned that the Department of Environment and Forests had sent a note with the approval of the Minister for Environment and Forests and had recommended conditional approval
to the Narmada Sagar and Sardar Sarovar Projects subject to three conditions:

Review of design parameters to examine the feasibility of modifying the height of the dam;
Preparation in due time, detailed and satisfactory plans for rehabilitation, catchment area treatment, compensatory afforestation and command area development;
Setting up of Narmada Management Authority with adequate powers and teeth to ensure that environmental management plans are implemented pari passu with engineering and other works.

It is further stated in the note that the Ministry of Water Resources and the State Governments had no difficulty in accepting conditions (ii) and (iii). With regard to review of design parameters and dam height, the Ministry of Water Resources had examined the same after taking into consideration the comments of the Central Water Commission and
concluded that the reduction of the FRL of the Narmada Sagar project
would not be worthwhile. The Secretary to the Prime Minister had discussed the matter with the Secretary, Ministry of Water Resources and Secretary, Ministry of Environment and Forests and it was agreed that the recommendation of the Minister of Environment and Forests of giving
clearance on the condition that items (ii) and (iii) referred to hereinabove be accepted. The note also stated that in view of the technical report, reduction in the dam height did not appear to be feasible. This note of Mrs. Otima Bordia recommended that the Prime Ministers approval was
sought on giving conditional clearance. On this note, Mrs. Serla Grewal, Secretary to the Prime Minister noted as follows:

Proposal at para 17 may kindly be approved. This project has been pending clearance for the last 7 years and both
the C.Ms. of Gujarat and Madhya Pradesh are keenly awaiting the clearance of the same. The agency, which is
proposed to be set up to monitor the implementation of this project, will fully take care of the environmental degradation about which P.M. was concerned. The Ministry of
Environment and Forests have recommended clearance of
this project subject to conditions which will take care of P.Ms apprehensions. I shall request Secretary, Water Resources, who will be Chairman of the Monitoring
Agency, to see that no violation of any sort takes place and P.Ms office will be kept informed of the progress of this project every quarter. The matter is urgent as last week
C.M. Gujarat had requested for green signal to be given to him before 20th January.

P.M. may kindly approve.

The Prime Minister Shri Rajiv Gandhi, instead of giving the approval, made the following note:
Perhaps this is a good time to try for a River Valley Authority. Discuss

It appears that the Ministry of Environment and Forests gave its clearance to the setting up of Inter-Ministerial Committee and on 8th April, 1987, following note was prepared and forwarded to the Prime Minister.

This case has got unduly delayed. P.M. was anxious that speedy action should be taken. As such, since the Ministry of Environment have given its clearance subject to setting up of an Inter-Ministerial Committee as indicated at A above, we may give the necessary clearance. The three Chief Ministers may be requested to come over early next week to give their clearance in principle for the setting up of a River Valley Authority so that simultaneous action can be initiated for giving practical shape to this concept. The clearance of the project, however, should be communicated within two weeks as I have been informed by Shri
Shiv Shanker and Shri Bhajan Lal that interested parties are likely to start an agitation and it is better if clearance is communicated before mischief is done by the interested parties.

Along with another affidavit of Shri P.K Roy, Under Secretary, Prime Ministers Office dated 2nd May, 2000, some correspondence exchanged
between Legislature and the Prime Minister has also been placed on record relating to the granting of the environmental clearance by the Prime Minister. On 31st March, 1987, Shri Shanker Sing Vaghela, the then Member of Parliament, Rajya Sabha had written a letter to the Prime
Minister in which it was, inter alia, stated that the foundation stone for the Narmada Project had been laid 25 years ago by the late Pandit Jawahar Lal Nehru and that after the Tribunals Award, Mrs. Indira Gandhi had cleared
the project in 1978, but still the environmental clearance had not so far been given. It was also stated in his letter that the project was now being delayed on account of so-called environmental problems. It was further stated in his letter that the Sardar Sarovar Project, when completed, will solve more of
the pressing problems of environment than creating them. To this letter of Shri Vaghela, the Prime Minister sent a reply dated 8th April, 1987 stating as follows:

I have seen your letter of 31st March regarding the Narmada Project. All aspects have to be carefully considered before decisions are taken on a project of this size. This is being done.

The environment and ecological factors cannot be dis- regarded. We cannot also dismiss the needs of our tribal people. Safeguards are required to ensure that rehabilitation plans are effective.

All these aspects are being examined and a decision will be taken soon.

On 30th April, 1987, a press note was released by the Government of India,
in which it was stated that in a meeting presided over by the Prime Minister, it was agreed by the Chief Ministers of Madhya Pradesh and Gujarat and representatives of the Maharashtra Government that a high level River
Valley Authority would be set up for the control and development of the river basin. This press note also stated that the Narmada Sagar and the Sardar Sarovar Project on the river Narmada had been cleared. Soon, thereafter Shri Ahmad Patel, Member of Parliament from Gujarat wrote a letter dated
14th April, 1987 to Shri Rajiv Gandhi expressing his gratitude for according clearance to the Narmada multi-purpose project. This letter was replied to on 22nd April, 1987 by Shri Rajiv Gandhi who thanked Shri Patel for writing his letter dated 14th April, 1987 regarding the Narmada project. On 20th April, 1987, Shri Shanker Singh Vaghela wrote another letter to the Prime Minister. While thanking him for clearing the project, it was stated that there was apprehension about the environment and ecological factors and also
about the needs of the tribal people. The Prime Minister was requested to clarify to the people of Gujarat whether or not these aspects have finally been cleared or not and all the doubts on this front have been finally set at rest or not. On 4th May, 1987 the Prime Minister replied to this letter in which it was stated as follows:

There should be no grounds for any misunderstanding in this regard. The Narmada Project has been cleared while at the same time ensuring that environmental safeguards will be enforced and effective measures taken for the rehabilitation of the tribals. You could ask the Ministry of Water Resources or the State
Government for details.

Lastly, we need make reference to a letter dated 10th June, 1987 written by Smt. Chandraben Sureshbhai Shrimali, an M.L.A. of Gujarat and the reply
of the Prime Minister thereto. In the said letter dated 10th June, 1987, Smt. Shrimali thanked the Prime Minister for clearing the Narmada project and it was stated that the dry land of Gujarat and Saurashtra would be fertilised through Narmada Yojna. To this, reply dated 30th June, 1987 of the Prime Minister was as follows:

Thank you for your letter of 10th June. The visit to Surendranagar was useful and educative. We are all looking forward to the early implementation of the Sardar Sarovar project. The question of environmental protection also needs serious attention. I wish you and the people of Surendranagar a good monsoon.

From the documents and the letters referred to hereinabove, it is more than evident that the Government of India was deeply concerned with the environmental aspects of the Narmada Sagar and Sardar Sarovar Project. Inasmuch as there was some difference of opinion between the Ministries of Water Resources and Environment & Forests with regard to
the grant of environmental clearance, the matter was referred to the Prime Minister. Thereafter, series of discussions took place in the Prime Ministers Secretariat and the concern of the Prime Minister with regard to the environment and desire to safeguard the interest of the tribals resulted in some time being taken. The Prime Minister gave environmental
clearance on 13th April, 1987 and formal letter was issued thereafter on 24th June, 1987.

It is not possible, in view of the aforesaid state of affairs, for this Court to accept the contention of the petitioner that the environmental clearance of the project was given without application of mind. It is evident, and in fact this was the grievance made by Shri Vaghela, that the
environmental clearance of the project was unduly delayed. The Government was aware of the fact that number of studies and data had to be collected relating to environment. Keeping this in mind, a conscious
decision was taken to grant environmental clearance and in order to ensure that environmental management plans are implemented pari passu with engineering and other works, the Narmada Management Authority was
directed to be constituted. This is also reflected from the letter dated 24th June, 1987 of Shri Mudgal giving formal clearance to the project.

Re: OTHER ISSUES RELATING TO ENVIRONMENT

Prior to the grant of the environmental clearance on 24th June, 1987, sufficient studies were made with regard to different aspects of environment on the basis of which conditional clearance was granted on 24th June, 1987, one of the condition of clearance being that the balance studies should be completed within a stipulated time frame. According to the Government of Gujarat, the conditions imposed in the environmental clearance granted on June 24, 1987 were:

The NCA would ensure that the environmental safeguard measures are planned and implemented pari passu with the progress of work on the project.

The detailed survey/studies assured will be carried out as per the schedule proposed and details made available to the
department for assessment.

The catchment area treatment programe and rehabilitation plans be so drawn so as to be completed ahead of reservoir filling.

The department should be informed of progress on various works periodically.

It was further submitted by the Government of Gujarat that none of these conditions were linked to any concrete time frame.

The first condition casts a responsibility on the NCA to ensure that the environmental aspects are always kept in view. The
best way to attain the first and the fourth condition was to create an environmental sub-group headed by the Secretary in the Ministry of Environment and Forest.

The second condition the conducting of surveys by its very nature could not be made time bound. The surveys related to various activities to undo any damage or threat to the environment not only by the execution of the project but in the long term. Therefore, any delay in the conduct of surveys was not critical. Besides, a perusal of the latest status report on environment shows that a large number of surveys were carried out right from 1983 and also after 1987.

The third condition has already stood fully complied with as observed by Environment Sub-Group.

The fourth condition again involved keeping the department informed.

It was submitted that the concept of lapsing is alien to such conditions. In other words, formal environmental and forest clearances granted by the Ministry of Environment and Forests, Government of India
are not lapsed and are very much alive and subsisting.

With regard to the lapsing of the clearance granted in 1987, it was contended by Mr. Harish Salve that a letter dated 25th May, 1992 was written by the Secretary, Ministry of Environment and Forests, Government
of India to the Secretary, Ministry of Water Resources stating, inter alia, that the conditions of clearance of the project were not yet met and, therefore, a formal request for extension of environmental clearance, as directed by
Review Committee of Narmada Control Authority, may be made and failing which, a formal notification may be issued revoking the earlier clearance.
It is, however, an admitted position that no formal notification has ever been issued revoking and/or cancelling the aforesaid two clearances at any point
of time by the Ministry of Environment and Forests, Government of India. The Secretary, Ministry of Environment and Forests has continued to hold and chair the meetings of Environment Sub-Group, Narmada Control Authority closely monitoring the execution of SSP for ensuring that

environmental safeguard measures are implemented pari passu with the progress of work. On 11th August, 1992, a letter was written by Narmada Control Authority to the Secretary, Ministry of Environment and Forests sending action plan and status in respect of environmental safeguard measures taken and also stating amongst other details, the following:

A number of letters were exchanged between the MOWR and MOEF and a great deal of discussion took place both in the Environment Sub-Group and NCA as to whether an application
for extension of time as above is at all necessary. After a detailed discussion in the last NCA meeting on 25th July, 1992, it has been decided that NCA should clearly indicate the additional time required for the completion of the remaining studies like flora and fauna and some aspects of fisheries and a revised action plan based thereon be also sent expeditiously.

XXXXX XXXXX
Keeping in view the fact and circumstances mentioned above,
I request you to kindly agree to the schedule of the studies and the follow up actions as presented here. A brief account of the action plan together with bar charts are enclosed, presenting a pictorial view.

On 15th December, 1992, a letter was written to the Secretary, Ministry of Environment and Forests, more particularly stating as under, amongst other things:

The Narmada Control Authority has already prepared an action plan and status on the environmental measures of Sardar
Sarovar Project and submitted to the Ministry of Environment and Forests vide their letter No. NCA/EM/683 dated 11.8.1992 for concurrence. As may be seen from their report on action, so far there is no safeguard measures.

During field season of every year this will be closely reviewed to attain pari passu objectives so that the submergence during monsoon is taken care of.
The above actions are scheduled to be completed by June,
1993. No doubt, action in Maharashtra is lagging. The matter was taken up with the Chief Secretary of Maharashtra. A copy of his reply dated 7.11.1992 is enclosed. You will observe that the reasons for the lag are largely due to the un-cooperative and agitational approach adopted by some people.

Taking all these into account, you will appreciate that the action plans are adequate.

The Minister for Water Resources, Government of India wrote a letter on 27th January, 1993 to the Minister of State for Environment and Forests stating that there had been no violation of environmental safeguard measurers. On 7th July, 1993, the Secretary, Ministry of Water Resources,
Government of India wrote a letter to the Secretary, Ministry of Environment and Forests, Government of India, more particularly stating as under:

Progress of all the environmental works is summarised in the
sheet enclosed herewith. I share your concern for initial delay in some of the studies but now it seems that the work has started in full swing. However, there is a need to keep a close watch and I am advising the NCA for the same. By letter dated 17lth September, 1993, the Minister of State for Environment and Forests, Government of India wrote to the Minister for Water
Resources, Government of India appreciating the efforts made by the concerned State Governments in making the environmental plans. The exchange of the aforesaid correspondence and the conduct of various meetings of the Environment Sub-group from time to time under the Chairmanship of the Secretary, Ministry of Environment and Forests, disspells the doubt of the environment clearance having been lapsed. In other words, there could not have been any question of the environmental clearance granted to SSP being lapsed more particularly when the Environment Sub-group had been consistently monitoring the progress of various environmental works and had been observing in its minutes of various meetings held from time to time, about its analysis of the works
done by the respective States in the matter of the status of studies, surveys and environmental action plans in relation with:

phased catchment area treatment;
compensatory afforestation;
command area development;
survey of flora, fauna etc.
archeological and anthropological survey;
seismicity and rim stability of reservoir
health aspects and
fisheries development of SSP and NSP reservoirs.

Sh. Shanti Bhushan in the course of his submissions referred to the report of the Morse Committee in support of his contentions that the project was flawed in more ways than one.

The Morse Committee was constituted, as already noted, by the World Bank. Its recommendations were forwarded to the World Bank.
Apart from the Criticism of this report from other quarters, the World Bank itself, did not accept this report as is evident from its press release dated 22nd June, 1992 where it was, inter alia, stated as follows:

The Morse Commission provided a draft of its report to the Bank for management comments several weeks prior to the final release of the document. About two weeks before this release, the commission provided a draft of its findings and recommendations. The final version of the report is the sole
responsibility of its authors; the report was not cleared by the World Bank.

On resettlement and rehabilitation (R&R), Bank management agrees with the description of the R&R situation in each of the three states and with the reports conclusions about the shortcomings in the preparation and appraisal of the projects R&R aspects. We also agree that work should have been done
earlier on the issue of people affected by the canal in Gujarat. However, we do not share the view that resettlement would be virtually impossible even if Maharashtra and Madhya Pradesh adopted the liberal resettlement package provided for displaced people by the State of Gujarat. Given the experience so far, and the fact that most of the impact of submergence on people will not occur until 1997, there is still time to develop meaningful R&R packages and programs in consultation with the affected peoples. Efforts are being intensified to achieve this.

On environment, bank management agrees with the independent review on the need for a more effective central management in the Narmada Basin on environment impact studies and mitigation programms. Management also agrees on the need to accelerate work on estuary studies and health maters in Gujarat. However, management does not share the reviews conclusions about the environmental severity of the study delays. Command area issues are being addressed, including issues of water logging and salinity. On water availability (hydrology), Bank
Management disagrees with the finding that there is insufficient impoundment of water upstream of the Sardar Sarovar Dam site
to make the irrigation system work as designed.

The Government of India vide its letter dated 7th August, 1992 from the Secretary, Ministry of Environment and Forests did not accept the report and commented adversely on it.

In view of the above, we do not propose, while considering the petitioners contentions, to place any reliance on the report of Morse Committee.

It was submitted on behalf of the petitioners that the command area development was an important aspect as the benefits of the project
depended on this and if proper studies and plans were not done and not implemented, the very areas that were supposed to benefit will end up being rendered unfit for cultivation and the water logging and salinisation could refer vast areas of the command unproductive. It was also submitted that still there was no integrated command area environmental impact
assessment. After referring to the status reports and studies regarding the command area development, it was submitted that there was need for some independent agency to examine the various studies, action plans and the experience and to see whether there was ground to believe that the
proposed measures will work or not. It was contended that master plan for drainage and command area development was still not in place and even
the full studies had not been done.

While refuting the aforesaid contentions it was argued on behalf of learned counsel for the respondents that the SSP will provide irrigation water for a cultivable command area of 1.9 million hectares in Gujarat and 75,000 hectares in Rajasthan. The introduction of fresh water to the drought-prone areas of Gujarat will create obvious benefits for the farming communities. In order to safeguard these benefits, control and monitoring was suggested by the Secretary, Ministry of Environment and Forests and Chairman of the Environment Sub-group in the following areas from time to time:
drainage, water logging and soil salinity;
water quality;
forest loss;
potential impact on flora and fauna;
effects on public health;
socio-economic impacts.

Pursuant thereto fifty in-depth studies had been carried out by the State Governments of Gujarat and Rajasthan and some of the studies were still in progress. One of the main objectives of carrying out these studies was to prevent excessive use of ground water and water-logging.

There is no reason whatsoever as to why independent experts should be required to examine the quality, accuracy, recommendations and implementation of the studies carried out. The Narmada Control Authority and the Environmental Sub-group in particular have the advantage of having with them the studies which had been carried out and there is no
reason to believe that they would not be able to handle any problem, if and when, it arises or to doubt the correctness of the studies made.

It was submitted by Sh. Shanti Bhushan that the catchment area treatment programme was not to be done pari passu but was required to be completed before the impoundment. This contention was based on the
terms of the letter dated 24th June, 1987 wherein conditional environmental clearance was granted, inter alia, on the condition that the catchment area treatment programme and rehabilitation plans be drawn so as to be
completed ahead of reservoir filling. Admittedly, the impounding began in 1994 and the submission of Sh. Shanti Bhushan was that catchment area treatment programme had not been completed by them and, therefore, this very important condition had been grossly violated. Reference was also made to the Minutes of the Environmental Sub-group meetings to show that there had been slippage in catchment area treatment work.

The clearance of June, 1987 required the work to be done pari passu
with the construction of the dams and the filling of the reservoir. The area wherein the rainfall water is collected and drained into the river or reservoir is called catchment area and the catchment area treatment was essentially
aimed at checking of soil erosion and minimising the silting in the reservoir within the immediate vicinity of the reservoir in the catchment area. The respondents had proceeded on the basis that the requirement in the letter of June, 1987 that catchment area treatment programme and rehabilitation
plans be drawn up and completed ahead of reservoir filling would imply that the work was to be done pari passu, as far as catchment area treatment
programme is concerned, with the filling of reservoir. Even though the filling of the reservoir started in 1994, the impoundment Award was much less
than the catchment area treatment which had been affected. The status of compliance with respect to pari passu conditions indicated that in the year 1999, the reservoir level was 88.0 meter, the impoundment area was 6881 hectares (19%) and the area where catchment treatment had been carried
out was 128230 hectares being 71.56% of the total work required to be done. The Minutes of the Environmental Sub-group as on 28th September, 1999 stated that catchment area treatment works were nearing completion in the states of Gujarat and Maharashtra. Though, there was some slippage in Madhya Pradesh, however, overall works by and large were on schedule. This clearly showed that the monitoring of the catchment treatment plan was being done by the Environmental Sub-group quite effectively.

With regard to compensatory afforestation it was contended by Sh.
Shanti Bhushan that it was being carried out outside the project impact area. Further, it was submitted that the practice of using waste land or lesser quality land for compensatory afforestation means that the forest will be of lesser quality. Both of these together defeated the spirit of the compensatory afforestation. It was contended that the whole compensatory afforestation programme was needed to be looked at by independent
experts.

While granting approval in 1987 to the submergence of forest land and/or diversion thereof for the SSP, the Ministry of Environment and Forests had laid down a condition that for every hectare of forest land submerged or diverted for construction of the project, there should be compensatory afforestation on one hectare of non-forest land plus reforestation on two hectare of degraded forest. According to the State of
Gujarat, it had fully complied with the condition by raising afforestation in 4650 hectares of non-forest areas and 9300 hectares in degraded forest
areas before 1995-96 against the impoundment area of 19%. The pari passu achievement of afforestation in Gujarat was stated to be 99.62%.

If afforestation was taking place on waste land or lesser quality land, it did not necessarily follow, as was contended by the petitioners, that the forests would be of lesser quality or quantity.

It was also contended on behalf of the petitioners that downstream impacts of the project would include not only destruction of downstream fisheries, one of the most important ones in Gujarat on which thousands of people are dependent but will also result in salt water ingress. The project, it was contended, will have grave impacts on the Narmada Estuary and
unless the possible impacts were properly studied and made public and mitigation plans demonstrated with the requisite budget, one could not accept the claim that these matters were being looked into. The need to assess the problem was stated to be urgent as according to the petitioners rich fisheries downstream of the dam, including the famed Hilsa would be almost completely destroyed. The salinity ingress threatened the water supply and irrigation use of over 210 villages and towns and Bharuch city.
All these would not only have serious economic and other impacts but
would also directly destroy the livelihoods of at least 10000 fisher families.

Again all these contentions were based on the Morse Committee Report which the World Bank and the Union of India had already rejected. That apart, according to the respondents, in 1992 Sardar Sarovar Narmada Nigam Limited issued an approach paper on environmental impact assessment for the river reach downstream. This provided technical understanding of the likely hydrological changes and possible impact in relation thereto. It was further submitted by learned counsel for the
respondents that the potential for environmental changes in the lower river and estuary had to be seen in the context of the long term development of the basin. The current stage was clearly beneficial. The three stages could be identified as follows:

Stage 1 covers the period roughly from the completion of Sardar Sarovar Dam to the year 2015. Events occurring during this stage include (a) SSP Canal Command will have reached full development and requires diversion of some water, (b) the upstream demand will reach about 8 MAF and (c) the Narmada Sagar Dam will have been built and placed in operation.

Stage 2 covers the period from 2015 and 2030 during which the demands upstream of SSP continue to grow and will reach about 12 MAF still below the volume of 18 MAF that Madhya Pradesh can take in a 75% year.

Stage 3 covers the period upto and beyond full basin development.

The report given by M/s. H.R. Wallingford in March, 1993 in respect of the down stream impacts of Sardar Sarovar Dam observes, inter alia, as under:

The overall conclusion of the team undertaking the assessment described in this report is that there are no down steam impacts whose magnitude and effect are such as to cause doubts to be cast over the wisdom of proceeding with the Sardar Sarovar Projects provided that appropriate monitoring and mitigation measurers are
applied. Much of this work is already in progress under the auspices of the NPG, SSNNL and NCA. The
recommendations in this report are intended to provide a synthesis of their work and suggestions as to whether it might be modified to enhance its usefulness.

The said M/s. H.R. Wallingford in the findings of 1995 stated as under:

It is thought unlikely that any significant negative environmental impacts will occur over the next 30 years as
a result of the project. Some possible adverse effects have been identified the main one being the effect of flood attenuation on Hilsa migration. These needs to be
monitored and more studies undertaken to better understand the conditions which trigger spawning.
Beneficial impacts in this period include reduced flooding and more reliable dry season flows as well as an overall improvement of the health and well being of the people to the reliable domestic water supply, improved nutrition and enhanced economic activity.

The above report clearly demonstrates that the construction of dam would result into more regulated and perennial flow into the river with an overall beneficial impact. It is also evident that until all the dams are constructed upstream and the entire flow of river is harnessed, which is not likely in the foreseeable future, there is no question of adverse impact including the
fishing activity and the petitioners assertions in this regard are ill-conceived.

The area of submergence was stated to be rich in archaeological remains but it still remained to be studied. It was contended that there was danger of rich historical legacy being lost and even a small increase in the dam height would threaten to submerge many of the sites listed in the report of the Archaeological Survey of India. There were stated to be five monuments which would be affected at the dam height of 90 meter or
above and no work was stated to have commenced to protect any of the five monuments.

According to the State of Gujarat, the Ancient Monuments and Archaeological Sites and Remains Act, 1958 charged the Central and/or State Department of Archaeology with responsibility for the protection of important cultural sites. Under the Act, sites were classified into three categories as follows:

Type 1: Monuments of national importance which are protected by the Central Government;
Type 2 : monuments of religious or cultural importance which are protected by the State Government; and
Type 3 : monuments which are neither Centrally nor State protected, but which are considered to be an important part of cultural heritage.

Under the same law, authorities charged with the protection of the monuments are permitted to take suitable measures to ensure the preservation of any protected site under threat from decay, misuse or economic activity.

In the case of Sardar Sarovar, where several sites may be submerged, the NDWT award stipulated that the entire cost of relocation and protection should be chargeable to Gujarat. Relocation work was to be supervised by the Department of Archaeology under the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
The three State Governments carried out a complete survey of cultural and religious sites within the submergence zone. The principle of
these surveys was to list all Archaeological sites, identify and name any site under state protection and further identify sites of religious or cultural significance which, although not protected under national law, were of sufficient value to merit relocation. So far as the State of Gujarat is concerned the Department of Archaeology surveyed archeological sites in nineteen villages of submergence zone in Gujarat under the title of Archaeological Survey of Nineteen Villages in Gujarat submerged by
Sardar Sarovar Reservoir, 1989.

In addition to baseline studies on archaeological aspects, work had been carried out on the anthropological heritage of Narmada Basin, including examination of evidence of ancient dwellings and cultural artifacts. The principal studies in this behalf are described below:

Anthropological Survey of India: Narmada Salvage Plan: The Narmada Salvage Plan contains detailed background data on palaeoanthropological, human ecological and other aspects of the Narmada Valley. By May, 1992, surface scanning of 17 sample villages coming under the submergence had been
carried out and 424 specimens including ancient tools etc. had been collected.

Anthropological Survey of India. Peoples of India: This project entailed a complete survey of 33 tribes of India including those of Narmada Basin. The study covered all aspects of tribal culture in India and was published in 61 volumes in 1992.

Summary of current situation and progress, Government of Gujarat

Survey of villages in submergence zone Complete for all items in the State
Identification of cultural sites
Complete for all items in the State
Collection of data and documentation of sites Complete
Selection of appropriate sites
Complete Action Plan Complete

It was further submitted on behalf of respondents that no centrally or state protected cultural sites were located in the submergence area of the project. In Gujarat, the Department of Archaeology concluded that the temples of Shoolpaneshwar and Hampheshwar were important monuments and should
be moved to a higher level. Sites were selected for constructing new Shoolpaneshwar and Hampheshwar temples in consultation with temple trustees. Shoolpaneshwar had been relocated and reconstructured near Gora, about 15 Km downstream from the present location. Hampheshwar was also constructed at higher ground in consultation with the temple
trustees and pranpratistha was also planned on 22nd to 24th April, 2000 i.e. before the temple was submerged.

In relation to flora and fauna studies, it was contended by the petitioners that the studies had finished only recently and the action plans were awaited in many cases. In the meanwhile, extensive deforestation of the submergence zone had taken place, as also part of the area had been submerged, even as the studies have been on. It was also contended that the impact on some of these Wild Ass Sanctuary in Kutch would be very severe.

The guidelines of the Ministry of Environment and Forests required
that while seeking environmental clearance for the hydropower projects, surveys should be conducted so that the status of the flora and fauna present could be assessed. A condition of environmental clearance of 1987 as far as it related to flora and fauna was that the Narmada Control Authority would ensure in-depth studies on flora and fauna needed for implementation of environmental safeguard measurers. It is the case of the respondents that number of studies were carried out and reports submitted. It was observed that the submergence area and catchment area on the right bank of the proposed reservoir exhibited a highly degraded ecosystem
which was in contract to the left bank area where there was fairly good forest cover which formed part of Shoolpaneshwar Wildlife Sanctuary. With regard to the study of fauna, the said report indicated that a well-balanced and viable eco-system existed in the Shoolpaneshwar Sanctuary.
Moreover, with the construction of dam, water availability and soil moisture will increase and support varieties of plants and animals.

It was also contended on behalf of petitioners that the whole project will have serious impacts on health, both around the submergence area and in the command. The preventive aspects had not been given attention.

There was no linkage between the studies and work.

On behalf of State of Gujarat, it was contended that large number of studies had been carried out on the health profile of villagers including studies on water related diseases in SSP command area including the area downstream of the dam. The study of M.S. University in 1983 and other studies concluded that the most common diseases in the basin were Malaria, Scabies, Dysentery and Diarrhoea. Of these only a threat to
Malaria needed to be of concern. The study concluded that the incidence of hygiene related diseases other than Malaria could be reduced by better water availability. The Gujarat Work Plan covered villages within 10 KMs
radius of the reservoir including re-settled population and made provision for the monitoring, surveillance and control of Malaria. The principal features of the Gujarat Work Plan included establishment of a hospital at Kevadia near
the dam site, strengthening of laboratory facility including establishment of mobile unit residual insecticidal spraying operations etc. This showed that the area of public health was in no way being neglected.
The petitioner was also critical of the functioning of the
Environmental Sub-group as it was contended that the claims of the studies and progress report were accepted at the face value and without verification. It was also contended that the Ministry of Environment and Forests had grossly abdicated its responsibility. This submission was based on the premise that clearance, which had been granted, had lapsed
and the Ministry of Environment and Forests did not insist on the Ministry of Water Resources for its renewal and further more the Ministry of
Environment and Forests had not taken any cognizance of the criticism about environmental aspects contained in the Morse Committee Report.
Lastly the Five Member Group in its first report was critical in many respects and pointed out studies which had remained incomplete but no cognizance
was taken by the Ministry of Environment and Forests. The repeated abdication, it was submitted, of the responsibility by the Ministry of Environment and Forests indicated that it was not taking the whole issue with the seriousness it deserved.

On behalf of the State of Gujarat, it was contended that various alleged dangers relating to environment as shown by the petitioners were mostly based on the recommendations of the Morse Committee Report and
Five Member Group. While the report of Morse Committee does not require our attention, the same not having been accepted either by the World Bank or the Government of India. Para 4.5.2 of the report of Five Member Group which relates to creation of the Environment Sub-group commends its establishment, its observation about its powers is as follows:

4.5.2. It must be noted that the Environmental Sub-group is not a body which merely observes and reports, but watchdog body which can recommend even the stoppage of work if it
feels dissatisfied with the progress on the environment front.
The recommendations of the Environmental Sub-Group will have to be considered by the NCA, and if there is any
difference of opinion at that level, it will have to be referred to the Review Committee, which has the Minister of Water and Environment and Forests as a member. It seems doubtful
whether any more effective mechanism could have been
devised or made to work within the framework of our existing political and administrative structures, particularly in the context of a federal system. Secretary (Environment & Forests) has, in fact, been given a special position in the NCA inasmuch as he
can insist on matters being referred to the Review Committee and at the Review Committee the Minister of Environment and Forests forcefully plead the environmental cause; he can also make the environmental point of view heard at the highest
level. If in spite of all these arrangements, the environmental point of view fails to be heard adequately, and if project construction tends to take an over-riding precedence, that is a reflection of the relative political importance of these two

points of view in our system. This can be remedied only in the long term through perusation and education, and not
immediately through institutional arrangements which run counter to the system. (Emphasis added)

Apart from the fact that we are not convinced that construction of the dam will result in there being an adverse ecological impact there is no reason to conclude that the Environmental Sub-group is not functioning effectively.
The group which is headed by the Secretary, Ministry of Environment and Forests is a high powered body whose work cannot be belittled merely on the basis of conjectures or surmises.

Sh. Shanti Bhushan, learned Senior Counsel while relying upon A.P.
Pollution Control Board Vs. Professor M.V. Mayadu (1999) 2 SCC 718 submitted that in cases pertaining to environment, the onus of proof is on the person who wants to change the status quo and, therefore, it is for the respondents to satisfy the Court that there will be no environmental degradation.

In A.P. Pollution Control Boards case this Court was dealing with the case where an application was submitted by a company to the Pollution Control Board for permission to set up an industry for production of BSS
Castor Oil Derivatives. Though later on a letter of intent had been received by the said company, the Pollution Control Board did not give its no-
objection certificate to the location of the industry at the site proposed by it. The Pollution Control Board, while rejecting the application for consent, inter alia, stated that the unit was a polluting industry which fell under the red category of polluting industry and it would not be desirable to locate such an industry in the catchment area of Himayat Sagar, a lake in Andhra Pradesh.
The appeal filed by the company against the decision of the Pollution Board was accepted by the appellate authority. A writ petition was filed in the nature of public interest litigation and also by the Gram Panchayat challenging the order of the appellate authority but the same was dismissed by the High Court. On the other hand, the writ petition filed by the company was allowed and the High Court directed the Pollution Board to grant
consent subject to such conditions as may be imposed by it.

It is this decision which was the subject-matter of challenge in this Court. After referring to the different concepts in relation to environmental cases like the precautionary principle and the polluter-pays principle, this Court relied upon the earlier decision of this Court in Vellore Citizens Welfare Forum Vs. Union of India (1996) 5 SCC 647 and observed that
there was a new concept which places the burden of proof on the developer
or industrialist who is proposing to alter the status quo and has become part of our environmental law. It was noticed that inadequacies of science had
led to the precautionary principle and the said precautionary principle in its turn had led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed on those who want to change the status quo. At page
735, this Court, while relying upon a report of the International Law Commission, observed as follows:

The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution is major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.

It appears to us that the precautionary principle and the corresponding burden of proof on the person who wants to change the
status quo will ordinarily apply in a case of pulluting or other project or industry where the extent of damage likely to be inflicted is not known.
When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology or
environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to off set the same. Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance. Sustainable development means
what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.

In the present case we are not concerned with the polluting industry which is being established. What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry. The construction of a dam undoubtedly would result in the change of
environment but it will not be correct to presume that the construction of a large dam like the Sardar Sarovar will result in ecological disaster. India has an experience of over 40 years in the construction of dams. The experience does not show that construction of a large dam is not cost effective or leads to ecological or environmental degradation. On the contrary there has been ecological upgradation with the construction of large dams. What is the impact on environment with the construction of a dam is well-known in India and, therefore, the decision in A.P. Pollution Control Boards case (supra) will have no application in the present case.

Reference was made by Sh. Shanti Bhushan to the decision of the
United States District Court in the case of Sierra Club et. V. Robert F. Froehlke [350bF.Supp.1280(1973)]. In that case work had begun on
Wallisville Project which, inter alia, consisted of a construction of a low dam. It was the case of the plaintiff that the construction of the project would destroy hundreds of thousands of trees and enormous grain, fish and other
wild life will lose their habitat and perish. It was contended that the defendants were proceeding in violation of law by not complying with the requirements of National Environmental Policy Act, 1969, [NEPA]. Plaintiff, inter alia, sought an injunction for restraining the undertaking of the project in violation of the said Act. The District Court held that notwithstanding the substantial amount of work had already been done in connection with the
project but the failure to satisfy full disclosure requirement of NEPA injunction would be issued to halt any further construction until requirements of NEPA had been complied with, that even though there was no Act like
NEPA in India at the time when environmental clearance was granted in 1987, nevertheless by virtue of Stockholm Convention and Article 21 of the Constitution the principles of Sierra Club decision should be applied.

In India notification had been issued under Section 3 of the Environmental Act regarding prior environmental clearance in the case of undertaking of projects and setting up of industries including Inter-State River Project. This notification has been made effective from 1994. There was, at the time when the environmental clearance was granted in 1987, no obligation to obtain any statutory clearance. The environmental clearance which was granted in 1987 was essentially administrative in nature, having regard and concern of the environment in the region. Change in
environment does not per se violate any right under Article 21 of the Constitution of India especially when ameliorative steps are taken not only to preserve but to improve ecology and environment and in case of displacement, prior relief and rehabilitation measures take place pari passu with the construction of the dam.

At the time when the environmental clearance was granted by the Prime Minister whatever studies were available were taken into
consideration. It was known that the construction of the dam would result in submergence and the consequent effect which the reservoir will have on the ecology of the surrounding areas was also known. Various studies relating to environmental impact, some of which have been referred to earlier in this judgment, had been carried out. There are different facets of environment and if in respect of a few of them adequate data was not available it does not mean that the decision taken to grant environmental clearance was in
any way vitiated. The clearance required further studies to be undertaken and we are satisfied that this has been and is being done. Care for environment is an on going process and the system in place would ensure
that ameliorative steps are taken to counter the adverse effect, if any, on the environment with the construction of the dam.

Our attention was also drawn to the case of Tennessee Valley Authority v. Hiram G. Hill [437 US 153, 57 L Ed 2d 117, 98 S Ct 2279] where the Tennessee Valley Authority had begun construction of the Tellico Dam and reservoir project on a stretch of Little Tennessee River. While major portion of the dam had been constructed the Endangered Species Act 1973 was enacted wherein a small fish popularly known as the Snail
darter was declared an endangered species. Environmental groups brought an action in the United States District Court for restraining
impounding of the reservoir on the ground that such an action would violate the Endangered Species Act by causing the snail darter extinction. The District Court refused injunction but the same was granted by the United States Court of Appeal. On further appeal the US Supreme Court held that the Endangered Species Act prohibited the authority for further impounding the river. The said decision has no application in the present case because there is no such act like the Endangered Species Act in India or a declaration similar to the one which was issued by the Secretary of the
Interior under that Act. What is, however, more important is that it has not been shown that any endangered species exists in the area of
impoundment. In Tennessee Valley Authority case it was an accepted position that the continued existence of snail darter which was an endangered species would be completely jeopardised.

Two other decisions were referred to by Sh. Shanti Bhushan Arlington Coalition on Transportation v. John A. Volpe [458 F.2d 1323 (1972)] and Environmental Defense Fund, Inc. v Corps of Engineers of
United States Army [325 F.Supp.749 (1971)]. In both these decisions it was decided that the NEPA would be applicable even in case of a project which had commenced prior to the coming into force of the said Act but which had not been completed. In such cases there was a requirement to comply with the provisions of NEPA as already noticed earlier. The notification under Section 3 of the Environment Protection Act cannot be
regarded as having any retrospective effect. The said notification dated 27th January 1994, inter alia, provides as follows:

Now, therefore, in exercise of the powers
conferred by sub-section (1) and clause (v) of sub- section (2) of Section 3 of the Environment (Protection) Act, 1986 (29 of 1986) read with clause
(d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby directs that on and from the date of
publication of this notification in the Official Gazette expansion or modernization of any activity (if
pollution load is to exceed the existing one) or a
new project listed in Schedule I to this notification, shall not be undertaken in any part of India unless it has been accorded environmental clearance by the Central Government in accordance with the
procedure hereinafter specified in this notification.

This notification is clearly prospective and inter alia prohibits the undertaking of a new project listed in Schedule I without prior environmental
clearance of the Central Government in accordance with the procedure now specified. In the present case clearance was given by the Central Government in 1987 and at that time no procedure was prescribed by any
statute, rule or regulation. The procedure now provided in 1994 for getting prior clearance cannot apply retrospectively to the project whose construction commenced nearly eight years prior thereto.

RELIEF AND REHABILITATION

It is contended by the petitioner that as a result of construction of dam over 41,000 families will be affected in three States spread over 245 villages. The number of families have increased from 7000 families
assessed by the Tribunal. It was further contended that the submergence
area can be broadly divided into two areas, fully tribal area which covers the initial reach of about 100 or so villages which are almost 100 % tribal and hilly. These include all the 33 villages of Maharashtra, all 19 of Gujarat and many of the Madhya Pradesh. The second part of the submergence area is
the mixed population area on the Nimad plains with a very well developed economy that is well connected to the mainstream. While the tribal areas are stated to be having a rich and diverse resource base and the self sufficient economy, the lack of so-called modern amenities like roads, hospitals and schools are far more a reflection of the neglect and disregard by the Government over the last fifty years than on anything else. Of the
193 villages stated to be affected by Sardar Savorar submergence 140 lie in the Nimad plains. The population of these villages are a mixture of caste
and tribal and these villages have all the facilities like schools, post offices, bus service etc.

It was contended that whereas the project authorities talk only about the families affected by submergence, none of the other families affected by the project are considered as PAFs nor has any rehabilitation package been designed for them. These non-recognised categories for whom no rehabilitation package is given are stated to be those persons living in submergence area who are not farmers but are engaged in other
occupation like petty traders, village shop-keepers who are to be affected by submergence; colony affected people whose lands were taken in 1960 to
build the project colony, warehouses etc.; canal affected people who would be losing 25 per cent of their holdings because of the construction of the canals; drainage affected people whose lands will be acquired for drainage; 10,000 fishing families living downstream whose livelihood will be affected; lands of the tribals whose catchment treatment area has been carried out; persons who are going to be affected by the expansion Shoolopaneshwar Sanctuary; persons going to be affected by Narmada Sagar Project and Garudeshwar Weir. It was contended that there was an urgent need to
assess comprehensively the totality of the impact and prepare category specific rehabilitation policies for all of them.

It was also submitted that the total number of affected families in all the three States as per the Master Plan prepared by the Narmada Control Authority is 40727. According to the petitioner, however, this figure is an under-estimate and the estimate of the land required for these PAFs is also
on a much lower side. The basis for making this submission is:

1] In each village there are many persons left out of the Government list of declared PAFs. These are joint holders [non recognised as landed
oustees or PAFs] and the adult sons.
2] Incorrect surveys have been conducted and the affected persons have serious apprehensions about the validity of the surveys since at many places the level markings are suspect, in many cases the people affected at higher levels have been given notices for lower levels, many others at the
same levels have been left out and so on. It is also alleged that there have been short-comings in the policies and if they are corrected many more oustees will be entitled to PAFs status. Further more the cut off date for PAFs in Madhya Pradesh including adult son is linked to the date of
issuance of notification. Since land acquisition process is still incomplete the number of adult sons entitled to land would increase with the issuance of fresh Section 4 Notification.

From the aforesaid it was contended that the total impact in terms of number of oustees as well as land entitlement will be much larger than what is considered in the Master Plan.

It is also submitted that there was major lacunae in the said policy like the three States having dissimilar policy for R&R. This difference in rehabilitation packages of different States, with the package of Gujarat being more favourable, is leading to a situation where the oustees are forced to shift to Gujarat. The other lacunae which are stated to have many serious problems are alleged to be non provision for fuelwood and grazing
land with fodder. No provision for rehabilitation of people involved in non- agricultural occupation. According to the petitioner the number of affected people even by submergence have been underestimated. The policy
regime governing them has many serious lacunae. The increase in the numbers is due to lack of proper surveys and planning and the provision of
just and due entitlements to the PAFs. Since this process of providing just entitlements is still incomplete, and the policies need a thorough review, the numbers and entitlements are likely to go up further. Even the magnitude of the task of R&R cannot be assessed properly till the above are considered
and proper policies introduced.

It is also contended that before embarking on the Sardar Sarovar Project it was necessary that the Master Plan for rehabilitation of the families to be affected is completed. According to the petitioner the Master Plan which was submitted in the Court cannot be regarded as an
acceptable Master Plan inasmuch as it has no mention of people affected by Sardar Sarovar project other than those affected by submergence and it
has no estimate of resource base of the oustees in their original village. Further the plan makes no estimation of the forest land, grazing land and resources being used by the oustees. The Master Plan persists with the discriminatory and differential policies which are less than just to the oustees. There is also no planning for community resettlement even though the Award of the Narmada Tribunal made detailed provision regarding rehabilitation of the oustees which required that there should be village wise community rehabilitation.

In support of this contention reliance is placed on the following stipulation for rehabilitation contained in the Award of the Narmada Tribunal
That Gujarat shall establish rehabilitation villages in Gujarat in the irrigation command of the SSP on the norms hereafter mentioned for rehabilitation of
the families who are willing to migrate to Gujarat. The submission is that no specific rehabilitation village, as envisaged by the Tribunals Award, has been established in Gujarat. The issue of community re-settlement is stated to be not merely an issue of community facility but is a more fundamental issue. The issue is really one of preserving social fabric and community relation of the oustees which, it is alleged, is being destroyed due to dispersal of the community who are being resettled at different sites.

Dealing with the situation of those oustees who have been resettled
in Gujarat it is submitted by the petitioner that there are large number of grievances of the said outstees in 35 re-settlement sites. With the passage of time the number of problems overall would become much more, is the contention. The petitioner finds fault with the quality of land which has been given in Gujarat to the oustees contending that large number of oustees
have been given land outside the command area of irrigation and in some re-settlement sites there is a serious water-logging problem. It also contends that though some amenities have been provided but they are not
adequate. It is also the case of the petitioner that sufficient land for re- settlement of the oustees from Madhya Pradesh is not available in Gujarat despite the claim of the State of Gujarat to the contrary.

With regard to Maharashtra it is contended by the petitioner that the official figure of the total number of PAFs affected in Maharashtra is not correct and the number is likely to be more than 3113 PAFs estimated by the State of Maharashtra. Further-more adequate land of desired quality has not been made available for resettlement till 90 mtr. and even
thereafter. Reference is made to the affidavit of the State of Maharashtra in which it is stated that it proposes to ask for the release of 1500 hectares of forest land for re-settlement and the submission on behalf of the petitioner is that release of such land shall be in violation of Forest Conservation Act, 1980 and is not in public interest for forest cover will be further depleted.

With regard to the State of Madhya Pradesh it is submitted that as
per the award the PAFs have a right to choose whether to go to Gujarat or to stay in the home State. The State of Madhya Pradesh is stated to have planned the whole re-settlement based on the assumption that
overwhelming proportion of oustees entitled to land will go to Gujarat yet even for the limited number of oustees who are likely to stay in Madhya pradesh the submission is that no land is available. The petitioner also disputes the averment of the State of Madhya Pradesh that the oustees have been given a choice as to whether they would like to go to Gujarat or stay in the home State. According to the petitioner the majority of the oustees would prefer to stay in the home State that is Madhya Pradesh but
sufficient land for their resettlement in Madhya Pradesh is not available. According to the petitioner the State of Madhya Pradesh has stated that it does not have land for any PAFs above 830 and even for 830 PAFs the
land is not available. It is also submitted that the Madhya Pradesh Government cannot wriggle out of its responsibility to provide land for the oustees by offering them cash compensation. The petitioner finds fault with the effort of the State of Madhya Pradesh to push the oustees to Gujarat whose rehabilitation scheme is more attractive and beneficial than that of Madhya Pradesh.

The petitioner further contends that one of the fundamental principle laid down is that all the arrangements and resettlement of the oustees should be made one year in advance of submersion. In B.D. Sharma Vs.
Union of Indias case this Court has held that resettlement and rehabilitation has to be done at least six months in advance of submersion, complete in
all respects. It is, therefore, contended that since offers to the Madhya Pradesh oustees affected at 90 mtr. to be settled in Madhya Pradesh has
not been made, there cannot be any question of further construction till one year after the resettlement of these PAFs at 90 mtr.

The petitioner is also critical of the functioning of the R&R Sub-group and it is contended that the said Sub-group has not taken any cognizance of the various issues and problems enumerated by the petitioner. It is
submitted that in assuring that the relief and rehabilitation arrangements are being done the said R&R Sub-group merely accepts the assertions of the Government rather than verifying the claims independently. There is also a complaint regarding the manner in which the R&R Committee takes
decision on the spot when it makes frequent visits. It is contended that the decisions which are taken in an effort to solve the grievances of the oustees is done in the most insensitive way. The R&R Sub-group, it is contended, is an official agency of the Government itself being a Sub-group of the NCA, which is pushing the project ahead and the question raised by the petitioner is as to how can the same body which is building a project and executing
the R&R be also monitoring it.

It is a case of the petitioners that there is a need for independent monitoring agency in the three States who should be asked to monitor the R&R of the oustees and see to the compliance with the NDWT award. No construction should be permitted to be undertaken without clearance from this authority. Lastly it is contended that large number of grievances are persisting even after twenty years and the pace of resettlement has been slow. The petitioner seems to have contended that the relief and rehabilitation can be manageable only if the height of the dam is significantly lessened which will reduce submersion and displacement of

people.

In order to consider the challenge to the execution of the project with
reference to Relief and Rehabilitation it is essential to see as to what is the extent and the nature of submergence.

The Sardar Sarovar Reservoir level at 455 ft. would affect 193 villages in Madhya Pradesh, 33 villages in Maharashtra and 19 villages in Gujarat. The submergence villages are situated on the banks of river Narmada having gentle to steep slopes of the Satpura hills. A village is considered affected even when the water level touches the farm/hut at
lowest level. It may be noted that only 4 villages (3 villages in Gujarat and 1 village in Madhya Pradesh) are getting submerged fully and the rest 241
villages are getting affected partially.

The state-wise land coming under submergence (category-wise) is given below:

STATES

(In(In Hectares) S
S
r N
o
.
Type of land GUJARAT MAHARASHTRA MADHYA PRADESH TOTAL
1
Cultivated land

1877

1519

7883

11279
2
Forest Land 4166
6488

2731

13385
3
Other land including river bed

1069

1592

10208

12869

Total land 7112
9599

20822

37533

The aforesaid table shows that as much as 12869 hectares of the
affected land is other than agricultural and forest and includes the river bed area.

When compared to other similar major projects, the Sardar Sarovar Project has the least ratio of submergence to the area benefited (1.97% only). The ratio of some of the existing schemes is as much as 25% as can be seen from the table below:

S
Sr.

No. Name of Project State
Benefite d Area (in ha) Subme rgence Area
(in ha) Irrigation benefit per ha. Submergence Percentag
e of area submerge d to area irrigated 1
Hirakud Orissa 251150
73892
3.40

29.42
2
Shriram- sagar Andhra
Pradesh 230679
44517
5.24

19.14
3
Gandhisa gar Madhya Pradesh 503200
66186
7.60

13.15
4
Paithan Maharasht ra
278000
35000
7.94

15.29
5
Tungbha dra Karnataka 372000
37814
9.84

10.16
6
.
Pench Maharasht ra

94000

7750
12.13

8.24
7
.
Nagarjun
-sagar Andhra Pradesh 895000
28500
31.40

3.18
8
.
Bhakra Himachal Pradesh 676000
16800
40.24
2.48
9
Sardar Sarovar Gujarat 1903500
37533
50.71 1.97

Countering the assertion that the construction of the dam would
result in large scale relocation and uprooting of tribals, the factual position seems to be that the tribals constitute bulk of PAFs in Gujarat and Maharasthra, namely, 97% and 100% respectively. In the case of Madhya
Pradesh, the tribals PAFs are only 30% while 70% are non-tribals.

The tribals who are affected are in indigent circumstances and who have been deprived of modern fruits of development such as tap water,
education, road, electricity, convenient medical facilities etc. The majority of the project affected families are involved in rain-fed agricultural activities for their own sustenance. There is partial employment in forestry sector.
Since the area is hilly with difficult terrain, they are wholly dependent on vagaries of monsoon and normally only a single crop is raised by them. Out of the PAFs of Madhya Pradesh who have re-settled in Gujarat, more than
70% are tribal families. Majority of the total tribal PAFs are stated to have already been re-settled in Gujarat after having exercised their option. It is the contention of the State of Gujarat that the tribals in large number have responded positively to the re-settlement package offered by that state.

In Madhya Pradesh, the agricultural lands of the tribal villages are affected on an average to the extent of 28% whereas in the upper reaches
i.e. Nimad where the agriculture is advanced, the extent of submergence, on an average, is only 8.5%. The surveys conducted by HMS Gour University (Sagar) the Monitoring and Evaluation Agency, set up by Government of Madhya Pradesh, reveals that the major resistance to
relocation is from the richer, non-tribal families of Nimad who fear shortage of agricultural labour if the landless labourers from the areas accept re- settlement.

The displacement of the people due to major river valley projects has occurred in both developed and developing countries. In the past, there
was no definite policy for rehabilitation of displaced persons associated with the river valley projects in India. There were certain project specific programmes for implementation on temporary basis. For the land acquired, compensation under the provisions of Land Acquisition Act, 1894 used to be given to the project affected families. This payment in cash did not result in
satisfactory resettlement of the displaced families. Realising the difficulties of displaced persons, the requirement of relief and rehabilitation of PAFs in the case of Sardar Sarovr Project was considered by the Narmada Water
Disputes Tribunal and the decision and final order of the Tribunal given in 1979 contains detailed directions in regard to acquisition of land and properties, provision for land, house plots and civic amenities for the re- settlement and rehabilitation of the affected families. The re-settlement policy has thus emerged and developed along with Sardar Sarovar Project.

The Award provides that every displaced family, whose more than 25% of agricultural land holding is acquired, shall be entitled to and be
allotted irrigable land of its choice to the extent of land acquired subject to the prescribed ceiling of the State concerned with a minimum of two
hectares land. Apart from this land based rehabilitation policy, the Award further provides that each project affected persons will be allotted a house plot free of cost and re-settlement and rehabilitation grant. The civic amenities required by the Award to be provided at places of re-settlement include one primary school for every 100 families, one Panchayat Ghar, one dispensary, one seed store, one childrens park, one village pond and one religious place of worship for every 500 families, one drinking water well with trough and one tree platform for very 50 families; approach road linking each colony to main road; electrification; water supply, sanitary
arrangement etc. The State Governments have liberalised the policies with regard to re-settlement and have offered packages more than what was provided for in the Award e.g the Governments of Madhya Pradesh, Maharashtra and Gujarat have extended the R&R benefits through their liberalised policies even to the encroachers, landless/displaced persons,
joint holders, Tapu land (Island) holders and major sons (18 years old) of all categories of affected persons. The Government of Maharasthra has
decided to allot one hectare of agricultural land free of cost even to unmarried major daughters of all categories of PAFs.

In the environmental clearance granted by the Ministry of
Environment and Forests vide its letter dated 24th June, 1987, one of the conditions stipulated therein was for information from the project authorities on various action plans including Rehabilitation Master Plan of 1989.

It is the contention of the petitioners that the failure to prepare a Master Plan constitutes non-compliance with the requirement of the Tribunals Award as well as environmental clearance. The Tribunals Award does not use the expression Master Plan but as per clause XI Sub- clause IV(2)(iii), what is required, is as under:

The three States by mutual consultation shall determine within two years of the decision of the Tribunal, the number and general location of rehabilitation villages required to be established by Gujarat in its own territory.

It is with regard to this clause in the Award that, presumably, the aforesaid letter of 24th June, 1987 granting environmental clearance required the preparation of the new Master Plan.
In 1988 when the project was first cleared by the Planning
Commission from investment angle, it was estimated that 12180 families would be affected in three States. Based on these numbers, the State Governments independently prepared their action plans and announced
their R&R policy based on Tribunals Award. On the basis of the said action plans the Narmada Control Authority submitted Rehabilitation Master Plan
to the Ministry of Environment and Forests along with its letter dated ¾.5.1989. Out of the total population, which is affected by the submergence, large number are tribals and hence attention was paid by the State Governments to liberalise their policies for protecting the socio- economic and cultural milieu and to extend the R&R benefits even to other categories of persons who were not covered by the Tribunals Award. This led to the liberalisation of the R&R packages by the three States which packages have been referred to hereinabove. As a result of the liberalisation of the packages, the number of PAFs as estimated in 1992 by the State Governments were 30144. Based on the material available, the three State Governments prepared individual action plans in 1993 but those
action plans were integrated by the Narmada Control Authority first in 1993 and again in 1995 as an integrated Master Plan to present a holistic picture of the R&R programme. The Master Plan deals with socio-economic and cultural milieu of PAFs, the legal framework, R&R policy and procedures, implementation machinery, organisation for R&R, monitoring and
evaluation, empowerment of women and youth, special care for vulnerable groups, financial plans for R&R etc. As per the 1990 Master Plan the total PAFs have increased to 40227 from 30144 due to addition of 100 more
genuine PAFs in Maharashtra. This Master Plan includes village-wise, category-wise PAFs and their preference in R&R to settle in home State or in Gujarat.

The reason for increase in number of PAFs has been explained in the Master Plan and the reasons given, inter alia, are:
After CWC prepared backwater level data, the number of PAFs in Madhya Pradesh (MP) increased by 12000 PAFs as their houses are affected in a 1 in 100 years flood.
Government of Gujarat (GOG) included major sons of the dyke villages as PAFs.
Cut off date for major sons was extended by GOG and Government of Maharashtra (GOM).
PAFs affected in MP, have increased due to delay in publication of Section 4 notification under the Land Acquisition Act.
Persons socially or physically cut off due to impounding of water in reservoir, are also considered as PAFs by all the three States.
All the three States decided to consider encroachers as PAFs.
Major unmarried daughters in Maharashtra are considered as a separate family by Government of Maharashtra.
Some genuine PAFs were earlier left out (as many stayed in remote areas or used to undertake seasonal migration to
towns and developed areas in search of casual work).

As far as the State of Gujarat is concerned, its contention is that the task of R&R is not impossible as recognised by the FMG-I in its 1994 report and according to the State, it is fully ready and prepared to re-settle in Gujarat all the PAFs upto FRL 455 ft.

On 13th November, 1996, a meeting of the Review Committee of the Narmada Control Authority chaired by the Union Minister of Water
Resources was held. This meeting was attended by the Chief Ministers of all the States including Rajasthan and representatives of Ministry of Environment and Forests, Ministry of Social Justice and Empowerment, Government of India. In the meeting it was unanimously decided that the reviews of the implementation of re-settlement and rehabilitation measures will be undertaken for every five meter height of the dam jointly by the concerned R&R Sub-group and Environmental Sub-group so that work
could progress pari passu with the implementation measurers. In its meeting held on 6th January, 1999, R&R Sub-Group of Narmada Control Authority observed that arrangements made by the States for R&R of the balance families pertaining to the dam height EL 90 meter were adequate
and a meeting of the party States should be convened shortly to finalise the action plan. Pursuant thereto a special Inter-State Meeting was convened under the chairmanship of the Secretary to the Government of India,
Ministry of Social Justice and Empowerment on 21st January, 1999 at New Delhi and action plan for re-settlement and rehabilitation for balanced families of dam height EL 90 meter was finalised for implementation by the
States. It is the case of the State of Gujarat that it had issued notices and made offers in January, 1998 to PAFs affected at RL 90 meter in connection
with the selection of land and their re-settlement in Gujarat. According to it, even in respect of PAFs affected at RL 95 meter, notices were issued in
January, 1999 and to the PAFs included in the subsequent list, notices were issued in September 1999. The process of land selection by PAFs who had opted to resettle in Gujarat at RL 95 meter was already started. According to the Union of India, the Master Plan was under implementation and the progress of R&R at various elevations of dam viz. EL 90 meter, EL 95 meter, EL 110 meter and FRL 138.68 meter has been made.

The measures which have been implemented for sustainable
development with regard to preserving the socio-cultural environment of the displaced persons in the States of Maharashtra, Gujarat and Madhya
Pradesh are stated to be as follows:

? Three choices to the people for the selection of relocation sites.
? Integration of the displaced person with the neighbouring villages by organising medical check-up camps, animal husbandry camps, festivals, eye camps, rural development seminar for village
workers etc.
? Establishment of rehabilitation committees at different levels.
? Respect of traditional beliefs, rituals and rights at the starting of house construction, the day and time of leaving the old house and village and the day and time of occupying the new house etc.
? The sacred places at the native villages are being recreated along with their settlements at new sites.
? Installation of all the religious deities with the due consultation of religious heads.
? Promotion of cultural milieu viz. Social festivals, religious rights, rights of passage, presence of priests, shaman, kinsmen,
clansmen etc.
? Special consideration for the preservation of holistic nature of the culture.
? Proper use of built-in-mechanism of cultural heritage of the displaced persons.
? Launching of culturally appropriate development plan.
? Genuine representation of the traditional leader.

The Tribunal had already made provision of various civic amenities which were further liberalised by the State Governments during implementation. The existing development programmes were strengthened
for ensuring sustainable development at the rehabilitation sites. These were Integrated Rural Development Programme (IRDP) for agriculture, business and village industries; Integrated Child Development Scheme (ICDS) for nutrition, health and education; Jawahar Rojgar Yojna (JRY);
aids for improved seeds, fertilizers, irrigation, animal husbandry; Training Rural Youth for self-employment (TRYSEM); Employment Guarantee
Scheme (EGS), Social Assistance; Industrial Training Institute (ITI); Tribal Development Programme (TDP), financial benefits to the backward classes, economically weaker sections, tribals and other backward classes (OBC),
eye camps, subsidies to farmers (seed, tractorisation, fertilizsers, diesel, etc.) agricultural prices support subsidy etc.

Other benefits which were extended for improving the quality of life of the re-settled PAFs included fodder farm, mobile sale, shop of fodder,
seeds cultivation training, initial help in land preparation for agricultural activities, better seeds and fertilizers, access to finance, special programme for women in the traditional skills enterpreneurship development,
employment skill formation, different plantation programmes, special emphasis for pasture management, environment awareness and education programme, programmes for bio-gas/smokeless chulhas, safe drinking
water supply, electricity, lift irrigation, fertilizers kit distribution, gypsum treatment of soil etc.

The project authorities in these three States of Madhya Pradesh,
Gujarat and Maharashtra represented that comprehensive health care was
available in tribal areas where the displaced families had been re-settled. It was contended that extensive preventive health measures like mass
immunization, anti-malaria programme, family welfare programmes, child development schemes etc. had been undertaken. What is important is that primary health centres were established at relocation sites for all necessary health facilities to the PAFs.

The submission on behalf of Union of India was that there was a
well- established mechanism of Government of India for coordination and monitoring of Re-settlement & Rehabilitation (R&R) programmes in case of Sardar Sarovar Project. The R&R Sub-group and Rehabilitation Committee
of Narmada Control Authority are responsible for applying its independent mind on R&R. The Sub-group convenes its meeting regularly to monitor
and review the progress of R&R while Rehabilitation Committee visits the submergence areas/relocation sites to see whether the rehabilitation is taking place physically and to hear the individual problems of the PAPs. The R&R group, keeping in view the progress of relief and rehabilitation,
has not permitted the height to be raised, until and unless it is satisfied that adequate satisfactory progress has been made with regard to R&R.

Whereas at an earlier point of time in 1994, the construction schedule had required the minimum block level to be raised to 85 meters, the R&R Sub- group had permitted the same to be raised to EL 69 meter only during that period to match the R&R activity. It was in the meeting of R&R Sub-group on 6th January, 1999 after the R&R Sub-group had reviewed the progress
and had satisfied itself that the land for re-settlement in Gujarat, Maharashtra and Madhya Pradesh, which were available, was more than required for the re-settlement of the balanced PAFs that it cleared the construction upto the dam height EL 90 meters. The action plan for the same had been approved and is under implementation by the States concerned.

The petitioners had contended that no proper surveys were carried out to determine the different categories of affected persons as the total number of affected persons had been shown at a much lower side and that many had been denied PAF status. From what is being stated
hereinabove, it is clear that each State has drawn detailed action plan and it is after requisite study had been made that the number of PAFs have been identified. The number has substantially increased from what was estimated in the Tribunals Award. The reason for the same, as already noticed, is the liberalisation of the R&R packages by the State Governments. Except for a bald assertion, there appears to be no material on which this Court can come to the conclusion that no proper surveys had been carried out for determining the number of PAFs who would be
adversely affected by the construction of the dam.

Re-settlement and rehabilitation packages in the three States were different due to different geographical, local and economic conditions and availability of land in the States. The liberal packages available to the Sardar Sarovar Project oustees in Gujarat are not even available to the
project affected people of other projects in Gujarat. It is incorrect to say that the difference in R&R packages, the package of Gujarat being the most
liberal, amounts to restricting the choice of the oustees. Each State has its own package and the oustees have an option to select the one which was
most attractive to them. A project affected family may, for instance, chose to leave its home State of Madhya Pradesh in order to avail the benefits of more generous package of the State of Gujarat while other PAFs similarly situated may opt to remain at home and take advantage of the less liberal package of the State of Madhya Pradesh. There is no requirement that the liberalisation of the packages by three States should be to the same extent and at the same time, the States cannot be faulted if the package which is offered, though not identical with each other, is more liberal than the one envisaged in the Tribunals Award.

Dealing with the contention of the petitioners that there were large number of persons who were living in the submergence area and were not
farmers and would lose their livelihood due to loss of the community and/or loss of the river and were not being properly rehabilitated, Mr. Harish Salve, learned Senior Counsel contended that this averment was not true.
According to him, all the families in the 105 hilly tribal villages were agriculturists, cultivating either their own land or Government land and all of whom would be eligible for alternative agricultural land in Gujarat. Only a small number of non-agriculturists, mainly petty shopkeepers were found in these villages of tribal areas. In Gujarat there were 20 such non-
agriculturists families out of a total of 4600 affected families and all of these had been re-settled as per their choice so that they could restart their business. In Maharashtra out of 3213 affected families, not a single family was stated to fall under this category. Amongst the affected families of
Madhya Pradesh, the figure of such non-agriculturists family was also stated to be not more than couple of 100. In our opinion it is neither possible nor necessary to decide regarding the number of people likely to be so affected because all those who are entitled to be rehabilitated as per the Award will be provided with benefits of the package offered and chosen.

With regard to the colony affected people whose 1380 acres of land was acquired in six villages for the construction of a colony, most of the landholders had continued to stay in their original houses and about 381 persons were stated to have been provided permanent employment in the project works. At the time, the land was acquired in 1962-63, compensation was paid and in addition thereto, the Government of Gujarat devised a special package in August, 1992 providing ex-gratia payment upto Rs.
36000.00 to the land losers for purchase of productive assets or land for those who had not received employment in the project.

Dealing with the contention of the petitioners that there will be 23500 canal affected families and they should be treated at par to that of oustees in the submergence area, the respondents have broadly submitted that
there is a basic difference in the impacts of the projects in the upstream submergence area and its impacts in the beneficiary zone of the command area. While people, who were oustees from the submergence zone,
required re-settlement and rehabilitation, on the other hand, most of the people falling under the command area were in fact beneficiaries of the projects and their remaining land would now get relocated with the construction of the canal leading to greater agricultural output. We agree with this view and that is why, in the Award of the Tribunal, the State of Gujarat was not required to give to the canal affected people the same relief which was required to be given to the oustees of the submergence area.

Dealing with the contention of the petitioners that the oustees were not offered a chance to re-settle in Gujarat as a community and that there was a clear requirement of village-wise communication rehabilitation which had not been complied with, the contention of the respondents was that no provision of Tribunals Award had been shown which caused any such obligation on the Government of Gujarat. What the Award of the Tribunal required is re-settlement of the PAFs in Gujarat at places where civic amenities like dispensary, schools, as already been referred to hereinabove, are available.

Subsequent to the Tribunals Award, on the recommendation of the World Bank, the Government of Gujarat adopted the principle of re-
settlement that the oustees shall be relocated as village units, village sections or families in accordance with the outstees preference. The oustees choice has actively guided the re-settlement process. The requirement in the Tribunals Award was that the Gujarat shall establish rehabilitation villages in Gujarat in the irrigation command of the Sardar
Sarovar Project on the norms mentioned for rehabilitation of the families who were willing to migrate to Gujarat. This provision could not be interpreted to mean that the oustees families should be resettled as a homogeneous group in a village exclusively set up for each such group.
The concept of community wise re-settlement, therefore, cannot derive support from the above quoted stipulation. Besides, the norms referred to in the stipulation relate to provisions for civic amenities. They vary as regards each civic amenity vis-Ã -vis the number of oustees families. Thus, one panchayat ghar, one dispensary, one childrens park, one seed store
and one village pond is the norm for 500 families, one primary school (3 rooms ) for 100 families and a drinking water well with trough and one platform for every 50 families. The number of families to which the civic amenities were to be provided was thus not uniform and it was not possible to derive therefrom a standardised pattern for the establishment of a site which had nexus with the number of oustees families of a particular community or group to be resettled. These were not indicators envisaging re-settlement of the oustees families on the basis of tribes, sub-tribes, groups or sub-groups.

While re-settlement as a group in accordance with the oustees
preference was an important principle/objective, the other objectives were that the oustees should have improved or regained the standard of living that they were enjoying prior to their displacement and they should have
been fully integrated in the community in which they were re-settled. These objectives were easily achievable if they were re-settled in the command area where the land was twice as productive as the affected land and where large chunks of land were readily available. This was what the Tribunals Award stipulated and one objective could not be seen in isolation of the other objectives.

The Master Plan, 1995 of Narmada Control Authority also pointed out
that “the Bhils, who are individualistic people building their houses away from one another, are getting socialised; they are learning to live together”. Looking to the preferences of the affected people to live as a community,
the Government of Gujarat had basically relied on the affected families decision as to where they would like to relocate, instead of forcing them to relocate as per a fixed plan.

The underlined principle in forming the R&R policy was not merely of providing land for PAFs but there was a conscious effort to improve the living conditions of the PAFs and to bring them into the mainstream. If one compares the living conditions of the PAFs in their submerging villages with the rehabilitation packages first provided by the Tribunals Award and then liberalised by the States, it is obvious that the PAFs had gained
substantially after their re-settlement. It is for this reason that in the Action Plan of 1993 of the Government of Madhya Pradesh it was stated before this Court that therefore, the re-settlement and rehabilitation of people whose habitat and environment makes living difficult does not pose any problems and so the rehabilitation and re-settlement does not pose a threat to environment. In the affidavit of Dr. Asha Singh, Additional Director (Socio & CP), NVDA, as produced by the Government of Madhya Pradesh
in respect of visit to R&R sites in Gujarat during 21st to 23rd February, 2000 for ascertaining the status relating to grievances and problems of Madhya Pradesh PAFs resettled in Gujarat, it was, inter alia, mentioned that the
PAFs had informed that the land allotted to them is of good quality and they take the crops of Cotton, Jowar and Tuwar. They also stated that their status has improved from the time they had come to Gujarat but they want
that water should start flowing in the canals as soon as possible and in that case they will be able to take three crops in one year as their land is in the command area. Whereas the conditions in the hamlets, where the tribals
lived, were not good enough the rehabilitation package ensured more basic facilities and civic amenities to the re-settled oustees. Their children would have schools and childrens park, primary health centre would take care of
their health and, of course, they would have electricity which was not a common feature in the tribal villages.

Dealing with the contention of the petitioners that there was no
provision for grazing land and fuel wood for the PAFs, it is rightly contended by the State of Gujarat that grazing land was not mandated or provided for
in the Tribunals Award but nevertheless, the grazing land of six villages was available for use of PAFs. It may be that the grazing land was inadequate but this problem will be faced by the entire State of Gujarat and not making such land available for them does not in any way violate any of the provisions of the Award.

With regard to providing irrigation facilities, most of the re-settlement of the project affected families were provided irrigation facilities in the Sardar Sarovar Project command area or in the command areas of other irrigation projects. In many of the out of command sites, irrigated lands were purchased. In cases where the irrigation facilities were not functioning, the Government of Gujarat had undertaken the work of digging
tubewells in order to avoid any difficulty with regard to irrigation in respect of those oustees who did not have adequate irrigation facilities. It was
contended that because of the delay in the construction of the project, the cut off date of 1stJanuary, 1987 for extending R&R facilities to major sons were not provided. The Tribunals Award had provided for land for major sons as on 16.8.1978. The Government of Gujarat, however, extended this benefit and offered rehabilitation package by fixing the cut off date of 1.1.1987 for granting benefits to major sons. According to the Tribunals
Award, the sons who had become major one year prior to the issuance of the Notification for land acquisition were entitled to be allotted land. The Land Acquisition Notification had been issued in 1981-82 and as per the Award, it was only those sons who had become major one year prior to that date who would have become eligible for allotment of land. But in order to benefit those major sons who had attained majority later, the Government of Gujarat made a relaxation so as to cover all those who became major upto 1.1.1987. The Government of Gujarat was under no obligation to do this
and would have been quite within its right merely to comply with the provisions of the Tribunals Award. This being so, relaxation of cut off date so as to give extra benefit to those sons who attained age of majority at a later date, cannot be faulted or criticised.

Dealing with the contention of the petitioners that there is a need for a review of the project and that an independent agency should monitor the R&R of the oustees and that no construction should be permitted to be
undertaken without the clearance of such an authority, the respondents are right in submitting that there is no warrant for such a contention. The Tribunals Award is final and binding on the States. The machinery of Narmada Control Authority has been envisaged and constituted under the Award itself. It is not possible to accept that Narmada Control Authority is not to be regarded as an independent authority. Of course some of the members are Government officials but apart from the Union of India, the
other States are also represented in this Authority. The project is being undertaken by the Government and it is for the Governmental authorities to execute the same. With the establishment of the R&R Sub-group and constitution of the Grievances Redressal Authorities by the States of Gujarat, Maharashtra and Madhya Pradesh, there is a system in force
which will ensure satisfactory re-settlement and rehabilitation of the oustees. There is no basis for contending that some outside agency or National Human Rights Commission should see to the compliance of the Tribunal Award.

MONITORING OF REHABILITATION PROGRAMME

The Ministry of Water Resources, Government of India is the Nodal Ministry for the Sardar Sarovar Project and other Union Ministries involved are the Ministries of Environment and Forests and Social Justice and Empowerment. As a consequence of the Tribunals Award, Narmada
Control Authority was created to co-ordinate and oversee the overall work of the project and to monitor the R&R activities including environmental safeguard measures. The Review Committee of the Narmada Control
Authority consists of the Union Minister of Water Resources as its Chairman, the Union Ministry of Environment and Forests and the Chief Ministers of Gujarat, Madhya Pradesh, Maharashtra and Rajasthan as Members. This Review Committee may suo moto or on the application of any party State or the Secretary, Ministry of Environment and Forests review any decision of the Narmada Control Authority. In the Narmada Control Authority, Re-settlement & Rehabilitation (R&R) Sub-group has been created for closely monitoring the R&R progress. This Sub-group is
headed by the Secretary, Government of India, Ministry of Social Justice & Empowerment and is represented by Members/Invitees of participating States, academic institutions having expertise in R&R, independent socio- anthropological experts and non-Governmental Organisations. The
functions of this Sub-group are as follows:

To monitor the progress of land acquisition in respect of submergence land of Sardar Sarovar Project and Indira (Narmada) Sagar Project (ISP).
To monitor the progress of implementation of the action plan of rehabilitation of project affected families in the affected villages of SSP and ISP in concerned states.
To review the R&R action plan from time to time in the light of results of the implementation.
To review the reports of the agencies entrusted by each of the State in respect of monitoring and evaluation of the progress in the matter of re-settlement and rehabilitation.
To monitor and review implementation of re-settlement and rehabilitation programmes pari passu with the raising of the dam height, keeping in view the clearance granted to ISP and SSP from environmental angle by the Government of India and the Ministry of Environment and Forests.
To coordinate states/agencies involved in the R&R programmes of SSP and ISP.
To undertake any or all activities in the matter of re-settlement and rehabilitation pertaining to SSP and ISP.

REHABILITATION COMMITTEE

This Court vide order dated 9.8.1991 in B.D.Sharma Vs. Union of India and others 1992 Suppl.(3) SCC 93 directed the formation of a
Committee under the chairmanship of the Secretary, Ministry of Social Justice & Empowerment, Government of India to visit the submergence areas/re-settlement sites and furnish the report of development and
progress made in the matter of rehabilitation. The Rehabilitation Committee headed by the Secretary, Government of India, Ministry of Social Justice
and Empowerment and having representatives of the three State Governments as its members had been constituted. It is the case of the
Union of India that this Committee visited regularly the various R&R sites and submergence villages in the three States and submitted reports to this
Court from time to time. By order dated 24th October, 1994, this Court in the aforesaid case of B.D.Sharma (supra) observed that all the directions
issued by the Court from time to time have been complied with and nothing more be done in the petition and the petition was disposed off. Most of the recommendations/observations as made by this Committee are stated to
have been complied fairly by the States concerned.
In addition to the above, the officials of the Narmada Control
Authority are also stated to be monitoring the progress of R&R regularly by making field visits. The individual complaints of the PAFs are attended and brought to the notice of the respective Governments.

GRIEVANCES REDRESSAL MECHANISM

The appeal mechanism has been established in the policy statements by all the three State Governments for the redressal of
grievances of the PAFs. According to this mechanism, if a displaced
person is aggrieved by the decision of the Rehabilitation Officers in respect of any R&R process, he may appeal to the concerned agency/officers.

Vide Resolution dated February 17, 1999, the Government of Gujarat
set up a high-level authority called Grievance Redressal Authority (GRA) before whom the oustees already re-settled and to be re-settled in Gujarat
could ventilate their grievances for redressal after their re-settlement till the process of re-settlement and re-habilitation is fully completed. The said Grievances Redressal Authority has Mr. Justice P.D. Desai, retired Chief
Justice as its Chairman. This machinery had been established to:

create an Authority before whom oustees who have re-settled
in the State of Gujarat can ventilate their grievances relating to the R&R measures taken by the State of Gujarat;
ensure that the oustees already settled and the oustees settled hereinafter in the R&R sites created for re-settlement and rehabilitation of the oustees from the States of Madhya Pradesh and Maharashtra receive all the benefits and amenities in accordance with the Award and the various Government resolutions made from time to time;

ensure that Gujarat oustees re-settled in Gujarat have received all the benefits and amenities due to them.

The Gujarat Rehabilitation Authority has installed a permanent in- house Grievances Redressal Cell (GRC) within Sardar Sarovar Punarvasavat Agency. The Grievances Redressal Cell deals with the
grievances of the PAFs and the grievances redressal is undertaken by it in the following three ways.

Grievances Redressal Cell deals grievances in the regular course on the basis of applications i.e. by holding enquiries and implementing decisions taken pursuant thereto.
Grievances redressal on the spot though mechanism of Tatkal Fariyad Nivaran Samiti.
Grievances redressal under the mechanism of Single Window Clearance System.

Grievances Redressal Authority has surveyed sites in which PAFs
have been re-settled and has submitted reports to this Court from time to time which disclose substantial compliance with the terms of the Award
and the rehabilitation package.

In its Fourth Report dated 15.11.1999, the Grievances
Redressal Authority observed pursuant to the grievances redressal measures taken by GRC, whose approach is positive and grievance redressal oriented, a considerable number of grievances have been resolved by extensive land improvement work done on agricultural land at different sites within a period of six months i.e. April-September, 1999.

The R&R Sub-group in its 20th field visit of the R&R sites in Gujarat on 12/13.1.2000 has noted as follows:

The Committee after the visit and from interaction with the PAFs, concluded that there is vast improvement in the conditions of PAFs at these R&R sites as compared to the grievances reported for the same sites during previous visits by the Committee/NCA officers. Assessing the perception of PAFs the Committee observed that the majority of PAFs are happy and joining mainstream of countrys development.

The Grievances Redressal Cell has dealt with and decided a total of over 6500 grievances.

At the instance of Grievances Redressal Authority, an
Agricultural Cell is set up in Sardar Sarovar Punarvasavat Agency with
effect from 1st July, 1999. This was done with an objective of enhancing the productivity of agricultural land allotted to PAFs by adopting of suitable farm management practices and in assisting in resolving land related grievances.
Similarly, w.e.f. 1.5.1999, Medical Cells have been set up in Sardar Sarovar Punarvasavat Agency for ensuring effective functioning of medical infrastructure and providing organised system of supervising and monitoring and also for conducting health survey-cum-medical check up activities.
The Grievance Redressal Authority has become an effective monitoring and implementing agency with regard to relief and rehabilitation of the PAFs in Gujarat. Apart from resolving independent grievances of PAFs and
enforcing the compliance of the provisions of the Award through its exhaustive machinery and mechanism, it is also trying to guide in respect of various other issues not covered by the provisions of the Award such as Vocational training of the oustees;
Review of Narmada oustees employment opportunity rules;
Issue relating to Kevadia Colony;
Issue relating to tapu land;
Development of Kevadia as a tourist centre etc.
In Maharashtra, a local committee was constituted comprising of
Additional Collector (SS), Divisional Forest Officer, Re-settlement Officer and two representatives of the oustees nominated by the local Panchayat Samities from among the elected members of the village panchayats in the project affected villages/taluka. This Committee is required to examine the claims of the PAFs and give directions within a time frame and an appeal from its decision lies to the Commissioner. In addition thereto, vide notification dated 17th April, 2000 the Government of Maharasthra has set
up a Grievances Redressal Authority in lines established by the State of Gujarat and Mr. Justice S.P. Kurdukar, retired Judge of this Court, has been appointed as its Chairman. This Authority is expected to be analogous to the Grievances Redressal Authority of Gujarat.

In Madhya Pradesh, the grievances of the PAFs have first to be made
by a claim which will be verified by the patwari and then scrutinised by the Tehsildar. PAFs may file an appeal against the decision of R&R official before the District Collector who is required to dispose off the same within a period of three months. In the case of Madhya Pradesh also by Notification dated 30th March, 2000 the Government of Madhya Pradesh has constituted
a Grievances Redressal Authority similar to the one in Gujarat with Mr. Justice Sohni, retired Chief Justice of Patna High Court as its Chairman.

INDEPENDENT MONITORING & EVALUATION AGENCIES

The Monitoring and Evaluation of the rehabilitation programme is
also being carried out by the independent socio-anthropological agencies appointed by the State Governments of Maharashtra, Madhya Pradesh and Gujarat as well as Narmada Control Authority. These agencies, which are professional and academic institutes, conduct surveys and in-depth studies relating to PAFs in the submergence and rehabilitation villages. The main object of the monitoring is oriented towards enabling the management to assess the progress, identify the difficulties, ascertaining problem areas, provide early warning and thus call for corrections needed immediately.

The Center for Social Studies, Surat is the monitoring agency for the Government of Gujarat. This Institute has prepared 24 six monthly progress reports in relation to the re-settlement of PAFs of submergence villages of Gujarat. Similarly for the project affected families of Madhya Pradesh/Maharashtra who have re-settled in Gujarat, the Government of Gujarat has appointed the Gujarat Institute of Development Research, Ahmedabad as the independent Monitoring and Evaluation Agency for monitoring R&R programmes.

In Madhya Pradesh the monitoring and evaluation had been carried
out by Dr. H.S.Gaur University, Sagar and the same has been dis-engaged now and a new agency is being appointed. The findings of Dr. H.S. Guar University, Sagar indicated that displaced families in Madhya Pradesh are, by and large, happy with the new re-settlement in Gujarat and one of the main reason behind their happiness was that the shifting from hamlets had changed their socio-economic status.

In Maharashtra the monitoring and evaluation was earlier being done
by the Tata Institute of Social Sciences, Mumbai. This agency had reported that overall literacy rate among project affected persons above six years of age is about 97%, while illiteracy in submergence villages was rampant.
Further more the report showed that in the submergence villages, the tribals mostly relied on traditional healers for their ailments. Now the current scenario is that at R&R sites, health centres and sub-centres have been established.

It is thus seen that there is in place an elaborate network of authorities which have to see to the execution and implementation of the project in
terms of the Award. All aspects of the project are supervised and there is a Review Committee which can review any decision of the Narmada Control Authority and each of the three rehabilitating States have set up an independent Grievances Redressal Authority to take care that the relief and rehabilitation measures are properly implemented and the grievances, if any, of the oustees are redressed.

On 9th May, 2000, this Court directed the State Governments of
Gujarat, Madhya Pradesh and Maharashtra to file affidavits disclosing the latest status of re-settlement and rehabilitation work for the existing as well as prospective oustees likely to be affected by raising the height of the dam.
Pursuant to the said direction affidavits on behalf of the three States have been filed and, in response thereto, the petitioners have also filed an affidavit.

On behalf of the State of Gujarat the affidavit of Sh. V.K. Babbar, Commissioner (Rehabilitation) and Chief Executive Officer, Sardar Sarovar Punavasvat Agency [SSPA] has been filed, according to which at FRL 138.68 m. the status with regard to PAFs to be re-settled is stated to be as follows: State Total number of PAFs resettled/allotted agricultural land in Gujarat
Balance PAFs to be resettled in Gujarat Gujarat
4575
25

Maharashtra 710
290

Madhya Pradesh 3280
10450

Total 8565
10765

It is the case of State of Gujarat that 8565 PAFs have been accommodated in 182 R&R sites fully equipped with the requisite civic amenities as provided by the Tribunals award. The agricultural land allotted to these PAFs is 16973 hectares.

Dealing specifically with the status of PAFs at RL 90 mtr., 95 mtr. and 110 mtr. it is averred in the said affidavit that all the PAFs of Gujarat at RL 90 mtr. have been re-settled and the balance PAFs of Madhya Pradesh and Maharashtra affected at RL 90 mtr. have already been offered R&R package in Gujarat. The process of re-settlement is continuing and reliance is placed on the observation of the GRA which has stated in its Fourth Report dated 15th November, 1999 that There is substantial compliance of the Re-settlement and Rehabilitation measures as mandated by the Final Report of NWDT, including provision of civic amenities, and also of all the inter-linked provisions of the Government of Gujarat and that, therefore, PAFs from the States of Madhya Pradesh and Maharashtra affected upto the height of RL 90 mtr. can be accommodated as per their choice at these
selected 35 sites in Gujarat.

With respect to the PAFs affected at RL 95 mtr. the affidavit states that the PAFs of Gujarat have already been settled and while the affected PAFs of Madhya Pradesh and Maharashtra have been offered R&R
package in Gujarat in January 1999, September 1999 and January 2000. The RL 95 mtr. Action Plan for these PAFs has also been prepared by the Government of Gujarat in consultation with the Governments of Madhya Pradesh and Maharashtra and has been sent to the NCA. The case of the
State of Gujarat, therefore, is that all the PAFs wanting to be re-settled in Gujarat have been offered the package but consent of all the PAFs has not
so far been received but the Government of Gujarat has sufficient land readily available which can be allotted to the said PAFs as soon as they come and select the same.

With regard to the status of PAFs at RL 110 mtr. all the PAFs of Gujarat have been re-settled and 2761 PAFs [2642 of Madhya Pradesh and
119 of Maharashtra] remain to be re-settled in Gujarat and R&R package will be offered to them before November 2000. The land which is required
to be allotted to them is stated to be around 6074 hectares and the State of Gujarat has in its possession 8146 hectares. The civic amenities in 40 new R&R sites are scheduled to be completed by December 2000 and these
sites would serve to accommodate not only PAFs between RL 95 mtr. and RL 110 mtr. but would also serve to accommodate PAFs from submergence
villages which would be getting affected at levels above RL 110 mtr. The Action Plan giving the village-wise details is said to have been sent to NCA in June 2000 for its approval.

According to the said affidavit the balance number of PAFs remaining to be re-settled at Gujarat at FRL 138.68 mtr. is 10765. Taking into account that an additional area of 10% towards house plot and common civic
amenities would be required in addition to the allotment of minimum 2 hectares of agricultural land, the total land requirement per PAF would be approximately 2.2 hectares. For planning purposes in respect of 10765 PAFs the land requirement would be about 23700 hectares. As against this requirement the status of land, as per the said affidavit, under different categories with the Government of Gujarat is stated to be as under:

Sr. No.

PARTICULARS
Land [In ha] 1.
Land identified (offers received in respect of private land and Government land)
15716 ha.
2.
Land available (private land for which price is approved by Expert Committee and offer/counter offer conveyed and acceptance of land holder obtained.
480 ha. 3.
Land in possession of SSPA/GOG in
12 districts 8416 ha. Total 24612 ha.

It is averred that between March and 21st June 2000 the land in possession as well as the land identified has increased considerably.

It has also been explained in the said affidavit that the Government of Gujarat has a well-established practice of procuring land for R&R at realistic market prices for willing sellers. Officers hold discussions with prospective sellers, verify the suitability of land and after the prices is settled the same is procured through legal process of Land Acquisition Act and consent awards
are passed so that the PAPs are assured of undisputed legal title free from all encumbrances. This process of negotiated purchase has been
streamlined. At the instance of the GRA, a retired judge of the High Court is now appointed as Chairman of the Expert Committee with retired senior Government Secretaries as its members. This Expert Committee oversees
the exercise of purchase of suitable land at the market price. At the instance of the GRA, PAPs are being issued Sanads for the land allotted to them which will ensure provision of a proper legal document in their favour.

Dealing with the term of the Award to the effect that Gujarat shall acquire and make available a year in advance of the submergence before
each successive stage, land and house sites for rehabilitation of the oustees families from Madhya Pradesh and Maharashtra who are willing to migrate to Gujarat, the affidavit states that the Gujarat Government has already identified sufficient land for accommodating the balance PAFs
remaining to be re-settled in Gujarat at FRL 138.68 mtr. In respect of PAFs upto RL 110 mtr. Gujarat has sufficient land available to meet the R&R requirements but for the PAFs above RL 110 mtr. suitable land has already been identified and the same would be acquired and made available one
year in advance of the submergence before each successive stage. The affidavit gives reason as to why it is not advisable for the State, at this stage, to acquire the total requirement of land for FRL in one go. What is stated in the affidavit is as follows:

Since at present GOG has sufficient land to meet R&R requirement to accommodate PAFs upto RL 110 m, it
would not be necessary to acquire further land immediately, especially when the additional land would be required only after the R&R Sub-group and Environment Sub-group give approval for RL 95 m. to
RL 110 m. after examining the preparedness at different stages. This would ensure that public money is not unnecessarily blocked for a long period.
By acquiring land much before it would be required, problems of illegal trespass are likely to arise.
The excess land would, by and large, remain fallow and no agricultural production would take place.
If the land remains fallow for long the overall productivity of the land would be adversely affected.
All the time of allotment, the State Government would again have to spend a sizeable amount to remove
weeds, bushes, small trees etc.
The State Government would have to incur a sizeable amount to prevent tampering with the boundary marks, prevent neighbouring farmers removing the top soil or
from diverting natural drains passing through their fields towards the land purchased for R&R etc.

The affidavit also gives facts and figures showing that all requisite civic amenities have been developed and made available at the R&R sites. Some of the salient features which are highlighted in this behalf are as under:

? A three-room primary school is provided in all MP/MH sites irrespective of the number of families resettled.
? A dispensary with examination room, medical equipment, medicines is provided in all MP/MH sites irrespective of the number of resettled families.
? 3439 PAFs (86%) out of the total MP/MH PAFs resettled in Gujarat have availed of the Rs.45,000 financial assistance and built pucca core houses.
? Overhead tanks for drinking water are provided in large R&R sites.
? At the instance of GRA, toilets are being provided in the houses of PAFs with the help of NGOs.

The total cost incurred so far by the Government of Gujarat in
providing the land and civic amenities upto May 2000 is stated to be 194 crores. The Grievances Redressal Cell is stated to have redressed large number of grievances of the PAFs whether they were related to land, grant of civic amenities or others. The salient features of working of the Grievance Redressal Cell is stated to be as follows:
? At present 2 senior IAS officers with supporting staff are working exclusively for redressal of grievances.
? A reasoned reply is given to the applicants. The applicant is also informed that if he is aggrieved with the decision he may prefer an appeal to GRA within thirty days.
? The Single Window Clearance Systems main objective is to proactively resolve grievances and to avoid delays in inter-departmental co-ordination.
? Tatkal Fariyad Nivaran Samitis are held in the R&R sites to resolve grievance of the PAFs in an open forum.
? The PAFs are being involved at every stage of grievance redressal. The works have been carried out in most cases by the PAFs.
? The Agriculture Officers of the Agricultural Cell are actively helping, guiding the PAFs in their agricultural operations
and upgrading their skills.

With a view to effectively rehabilitate and assimilate the PAPs
Vasahat Samitis have been constituted in 165 R&R sites, consisting of 5 PAPs, one of whom is a female. This ensures the participation of the PAPs in the process of development and these Samitis are vested with the responsibility to sort out minor problems. With a view to ensure more
effective participation in Panchayat affairs and better integration of PAPs an Order under Section 98 of the Gujarat Panchayats Act, 1993 has been
issued by the Government of Gujarat providing that there shall be upto two invitees from amongst the PAPs depending upon the number of PAPs at the sites in the village Panchayat within whose jurisdiction the R&R are situated. Pursuant to this 196 PAPs have been inducted as invitees to then Village Panchayats. The salient features of the rehabilitation programme of the PAPs are as follows:
? PAFs are given productive assets in kind (7000/PAFs) to purchase bullocks, bullock carts, oil engines etc.
? PAFs are given subsistence allowance (Rs.4500/PAF) in cash to meet contingency needs in the initial period.
? Vocational training is provided to PAFs for improving their income levels, priority being given to those dependents
who are not entitled to be declared as PAFs on their own rights. Tool kits are supplied either free or with 50% subsidy.
? NGOs are actively involved in all the rehabilitation activities such as conducting training classes.
? PAFs are being covered by the ongoing developmental schemes of the Government (DRDA, Tribal Sub Plan etc.)
? An Extension (Agriculture) officers has been appointed for approximately every 150 families to guide them in agriculture operation and assist them in day to day problems (getting ration cards, khedut khatavahis etc.)
? In recent years focus is on empowering the PAFs and making them self dependent.

Medical cell has been set up for providing services and treatment to
PAPs free of cost. The cell is headed by Deputy Director (Medical) and is having a nucleus of medical experts consisting of a physician, a pediatrician, a gynecologist, 21 MBBS doctors, pharmacists etc. The salient features of the medical help programme for the benefit of PAPs is stated to be as follows:
? The Medical Officers and paramedic staff are making house-to-house visits to motivate the PAPs to come forward to avail of the medical services.
? In all dispensaries, a full time multipurpose health worker (female) is available.
? Multi-specialization diagnostic/treatment camps are organised fortnightly, where advance investigations are diagnostic facilities like ECG, X-ray ultrasound are available.
? Patients requiring further services are brought to Government hospitals or any other specialty hospital and necessary treatment given free of cost.
? GOG has placed an order for a mobile medical hospital equipped with diagnostic and treatment equipments.
? A comprehensive health survey and medical check up covering 29423 PAPs has been completed. A special
record system of family health folder and health profile of each PAP is prepared.
? Nutrition supplements are given to children (upto 6 years), expectant and lactating mothers through the Integrated
Child Development Scheme (ICDS).
? Special food supplement in the form of Hyderabad Mix is given to malnourished children and vulnerable target groups.
? School going children are covered under the Mid-Day Meal Scheme.
? Under TB Control, all chest symptomatic persons are screened by special examinations like sputum microscopy, X-ray, blood tests and persons found positive for TB are given domiciliary treatment under direct observation of doctors or paramedics. In 77 cases, treatment is completed and patients are cured.
? Under preventive health care, health education material is distributed and Health and Cleanliness Shibirs are organized.
? A special survey covering physically handicapped and mentally retarded persons has been organized and social welfare benefits given.
? Other National Health Programmes (maternal child health, immunization, school health check up, family welfare etc.) are regularly conducted.

An Agricultural Cell has been set up in the SSPA which assists the Grievances Redressal Machinery in resolving the problem relating to the agricultural land. The salient features of this cell are as follows:

? The Agriculture Cell is involved in purchasing land, supervision of land improvement works and processing land related grievances of the PAFs.
? Agriculture training classes are organized for PAFs in the training institutes of the State Government.
? Assistance is given for availing crop-loan credit from banks and extension education is imparted in matters of
marketing, cropping pattern, use of improved seeds, insecticides and latest equipments.
? Afforestation was carried out in 33 R&R sites during 1999- 2000 by planting 3500 saplings which are protected by
bamboo tree-guards. Plantation is done along the roadside, common plots, school premises etc. In the remaining sites plantation work is undertaken by NGOs.

At the instance of GRA an educational cell has been set up in the
SSPA. The main function of which is to improve the quality of education imparted and to improve the school enrolment. The salient features of this cell are as under:
? School enrolment which was 4110 in 1998-99, increased to 4670 in 1999-2000. Out of the 4670 students enrolled,
2126 were girls (46.3%).
? The number of schools is 170 and the number of teachers in 384. In the last academic year, 66 schools were upgraded by increasing the number of classes.
? SSPA is regularly sending the teachers for in-service training. So far 120 teachers have been imparted training.
? Every year during the period of June to August, a special drive is taken to increase the school enrolment.
? In the current year 150 adult education classes have been started in the R&R sites with the help of NGOs.
? An advisory committee has been created to make recommendations on how to improve the education being imparted. Members include faculty of MS University, officers of Education Department, Principal of Teacher Training Centre.

It is further averred in this affidavit that at the instance of GRA a large number of measures have been taken to improve the organisational
structure of SSPA so as to effectively meet the challenge of R&R and make the R&R staff accountable. The salient features of this are stated to be as follows:
? A strategic policy decision has been taken to create three separate divisions in SSPA for Rehabilitation, Re- settlement and Planning. Each division is in charge of a senior level officer of the rank of Additional/Joint Commissioner.
? Staff strength in SSPA has been considerably augmented especially at the field level.
? To review the structural and functional aspects of SSPA services of a management consultancy agency (M/s TCS)
has been engaged and draft report has been received and is being examined.
? A demographic survey is to be conducted to comprehensively document information regarding the
PAPs with special reference to their family composition, marriage, births, deaths, life expectancy, literacy, customs, culture, social integration etc.
? Staff is being trained to sensitize them especially with regard to rehabilitation and second-generation issues.
Senior level officers have been sent for R&R training at Administrative Staff College of India, Hyderabad.

From the aforesaid affidavit it is more than clear that the GRA, of which Mr. Justice P.D. Desai, is the Chairman, has seen to the
establishment of different cells and have taken innovative steps with a view to making R&R effective and meaningful. The steps which are being taken and the assistance given is much more than what is required under the Tribunals Award. There now seems to be a commitment on the part of the
Government of Gujarat to see that there is no laxity in the R&R of the PAPs. It appears that the State of Gujarat has realised that without effective R&R facilities no further construction of the dam would be permitted by the NCA and under the guidance and directions of the GRA meaningful steps are
being undertaken in this behalf. In this connection we may take note of the fact that along with the said affidavit Sh. V.K. Babbar, again under the directions of the GRA, has given an undertaking to this Court, which reads as follows:-

As per this undertaking, inter alia, in respect of scattered pieces or parcels of lands in possession of the SSPA for R&R which do not add upto a contiguous block of 7 hectares by themselves or in conjunction with other lands steps will be taken to purchase or acquire contiguous lands so that the said small pieces of land become a part of continuous block of 6 hectares or
more. This exercise will be undertaken and completed on or before 31st December, 2000. In case it is not possible to have a contiguous block of minimum of 6 hectares further directions will be sought from GRA or
such piece or parcel of land will be put to use for other public purposes relating to R&R but which may not
have been provided for in the NWDT award.

Henceforth, the land which is acquired or purchased for R&R purposes shall be contiguous to each other so as
to constitute a compact block of 6 hectares.

Henceforth land to be purchased for R&R will be within a radius of 3 kms. from an existing or proposed new
site and if there is a departure from this policy prior approval of the GRA will be obtained.

Demarcation of boundary of 5211 hectares of land whose survey has been undertaken by the GRA and
carving out individual plots of 2 hectares for allotment to PAFs will be undertaken and completed on or before
31st December, 2000.

The other undertakings relate to soil testing and/or ensuring that suitable land is made available to the PAFs after the quality of land is cleared by the
agriculture experts of the Gujarat Agriculture University.
With regard to the lands in possession of the SSPA which are low lying and vulnerable to water logging during monsoon, an undertaking has been given that the land has been deleted from the inventory of lands available for R&R unless such lands are examined by
the Agricultural Cell of SSPA and it is certified that the access to these lands is clear and unimpeded and that
they are suitable for R&R. Compliance report in this regard is to be submitted to the GRA on or before 31st December, 2000.

In addition to the aforesaid undertaking of Sh. V.K. Babbar, undertakings of the Collectors of Khedr, Vadodara, Ahmedabad, Narmada,
Panchmahal and Bharuch Districts have also been filed. Apart from reiterating what is contained in the undertaking of Sh. V.K. Babbar, in these undertakings of the Collectors, it is stated that necessary mutation entries regarding entering the name of SSPA/SSNNL in the village records of right
in respect of the land in possession for R&R or PAFs likely to be re-settled in Gujarat have been made but the certification of these entries will be completed and the matter reported to the GRA before 31st August, 2000. If
this is not done the land is to be deleted from the inventory of land available for R&R. Necessary mutation entries in the village records or rights
regarding removal of encumbrances of original landholders shall also be completed by that date.

From what is noticed hereinabove, this Court is satisfied that more than adequate steps are being taken by the State of Gujarat not only to
implement the Award of the Tribunal to the extent it grants relief to the oustees but the effort is to substantially improve thereon and, therefore, continued monitoring by this Court may not be necessary.

On behalf of the State of Madhya Pradesh, in response to this Courts order dated 9th May, 2000, an affidavit of Sh. H.N. Tiwari, Director (TW), Narmada Valley Development Authority has been filed. It is stated therein that with a view to arrange re-settlement of the PAFs to be affected at different levels detailed instructions to the Field Officers of the submergence area were issued by Sh. Tiwari vide letter dated 20th May,
2000 in respect of all the aspects of resettlement of the PAFs. This is related to identification of land, processing of land acquisition cases and passing of the Award, taking of PAFs to Gujarat for selection of land, allotment of land to the PAFs who decide to remain in Madhya Pradesh and development of sites. There are 92 sites for re-settlement of the PAFs which are required to be established and out of these 18 are stated to be fully developed, development in 23 sites is in progress, 18 sites are such where location has been determined and land identified but development work has not started and 33 sites are such where location of land for the
development is to be decided by the task force constituted for this purpose.

Dealing specifically with the states of PAFs to be affected at different levels this affidavit, inter alia, states that with regard to PAFs to be affected at EL 85 mtr. those of whom who have opted to go to Gujarat land has been
offered to them by the Government of Gujarat, those PAFs who have changed their mind and now want to remain in Madhya Pradesh land is being shown to them in Madhya Pradesh.

It has not been categorically stated whether the PAFs who are so affected have been properly resettled or not. On the contrary, it is stated that no Awards in land acquisition cases have been passed in respect of six villages and it is only after the Awards are passed that house plots will be allotted and compensation paid. The provision for financial assistance for purchase of productive assets will be released when the PAFs shift and
start construction of the houses. The reason for not making the payment in advance rightly is that if the grants are paid to the oustees before they shift they may possibly squander the grant and the State Government may be
required to pay again to establish them on some self employment venture. For the re-settlement of PAFs in Madhya Pradesh out of ten relocation sites mentioned in the affidavit only five have been fully developed. It is also stated that 163 PAFs are resisting from shifting to Gujarat under the influence of anti dam activists, though they have been given notices containing offer of the land and house plots by the Government of Gujarat. In addition thereto 323 PAFs who were earlier resisting have now been persuaded and arrangements for selection of land for them in Gujarat has been initiated.

With regard to the R&R status of PAFs to be affected at EL 95 mtr. it is, inter alia, stated that those losing 25 per cent of their holdings are entitled to be allotted cultivable land and notices were given to them to identify the land which can be allotted. In the said notice it was stated that the development process will be undertaken with regard to the said land
only after it is selected by the PAFs. There is also a mention in the affidavit filed in the name of Narmada Bachao Andolan, the petitioner herein, not
allowing the State Government to conduct survey for demarcation of the submergence area and identification of the PAFs to be affected at EL
132.86 mtrs. [436 ft.]. Six out of twenty five relocation sites required to be developed have been fully developed.

Affidavit on behalf of the State of Madhya Pradesh draws a picture of rehabilitation which is quite different from that of Gujarat. There seems to be no hurry in taking steps to effectively rehabilitate the Madhya Pradesh PAFs in their home State. It is indeed surprising that even awards in
respect of six villages out of 33 villages likely to be affected at 90 mtr. dam height have not been passed. The impression which one gets after reading the affidavit on behalf of the State of Madhya Pradesh clearly is that the main effort of the said State is to try and convince the PAFs that they should go to Gujarat whose rehabilitation package and effort is far superior to that of the State of Madhya Pradesh. It is, therefore, not surprising that vast majority of the PAFs of Madhya Pradesh have opted to be re-settled in
Gujarat but that does not by itself absolve the State of Madhya Pradesh of its responsibility to take prompt steps so as to comply at least with the provisions of the Tribunals Award relating to relief and rehabilitation. The State of Madhya Pradesh has been contending that the height of the dam should be lowered to 436 ft. so that lesser number of people are dislocated
but we find that even with regard to the rehabilitation of the oustees at 436 ft. the R&R programme of the State is no where implemented. The State is under an obligation to effectively resettle those oustees whose choice is not to go to Gujarat. Appropriate directions may, therefore, have to be given to ensure that the speed in implementing the R&R picks up. Even the interim report of Mr. Justice Soni, the GRA for the State of Madhya Pradesh, indicates lack of commitment on the States part in looking to the welfare of its own people who are going to be under the threat of ouster and who have to be rehabilitated. Perhaps the lack of urgency could be because of lack of resources, but then the rehabilitation even in the Madhya Pradesh is to
be at the expense of Gujarat. A more likely reason could be that, apart from electricity, the main benefit of the construction of the dam is to be of Gujarat and to a lesser extent to Maharashtra and Rajasthan. In a federal set up
like India whenever any such Inter-State project is approved and work undertaken the States involved have a responsibility to co-operate with each other. There is a method of settling the differences which may arise
amongst there like, for example, in the case of Inter-State water dispute the reference of the same to a Tribunal. The Award of the Tribunal being
binding the States concerned are duty bound to comply with the terms thereof.

On behalf of the State of Maharashtra affidavit in response to this Courts order dated 9th May, 2000, the position regarding the availability of land for distribution to the PAFs was stated to be as follows:

i] Total land made available by the
Forest Department 4191.86 Hectares

ii] Land which could not be allotted at present to PAF

Gaothan land [used residential purposes} 209.60 hectares
land occupied by river/
nallah/hills 795.62 hectares

Land under encroachment
by third parties 434.13 hectares

Therefore, the net land available At present for allotment was
4191.86 (-) 1439.35 2752.51 hectares

Total area of land allotted
To 1600 PAFs 2434.01 hectares

Remaining cultivable land Available with the State
2752 2434.01 318.50 hectares

It is further stated in this affidavit that out of 795.62 hectares of forest land which was reported to be uncultivable the State has undertaken a survey for ascertaining whether any of these lands can be made available for
cultivation and distribution by resorting to measures like bunding, terracing and levelling. It is estimated that 30 to 40 hectares of land would become available. In addition thereto the affidavit states that the Government of Maharashtra has decided to purchase private land in nearby villages for re- settlement of PAFs and further that GRA has been established and Justice
S.P. Kurdukar, a retired judge of this Court has been appointed as its Chairman. It is categorically stated in this affidavit that the State Government would be in a position to make these land available to all the concerned project affected families.

CONCLUSION

Water is one element without which life cannot sustain. Therefore, it
is to be regarded as one of the primary duties of the Government to ensure availability of water to the people.

There are only three sources of water. They are rainfall, ground
water or from river. A river itself gets water either by the melting of the snow or from the rainfall while the ground water is again dependent on the
rainfall or from the river. In most parts of India, rainfall takes place during a period of about 3 to 4 months known as the Monsoon Season. Even at the
time when the monsoon is regarded as normal, the amount of rainfall varies from region to region. For example, North-Eastern States of India receive much more rainfall than some of other States like Punjab, Haryana or Rajasthan. Dams are constructed not only to provide water whenever
required but they also help in flood control by storing extra water. Excess of rainfall causes floods while deficiency thereof results in drought. Studies show that 75% of the monsoon water drains into the sea after flooding a
large land area due to absence of the storage capacity. According to a study conducted by the Central Water Commission in 1998, surface water resources were estimated at 1869 cu km and rechargeable groundwater resources at 432 cu km. It is believed that only 690 cu km of surface water resources (out of 1869 cu km) can be utilised by storage. At present the
storage capacity of all dams in India is 174 cu km. which is incidentally less than the capacity of Kariba Dam in Zambia/Zimbabwe (180.6 cu km) and
only 12 cu km more than Aswan High Dam of Egypt.

While the reservoir of a dam stores water and is usually situated at
a place where it can receive a lot of rainfall, the canals take water from this reservoir to distant places where water is a scare commodity. It was, of course, contended on behalf of the petitioner that if the practice of water harvesting is resorted to and some check dams are constructed, there
would really be no need for a high dam like Sardar Sarovar. The answer to this given by the respondent is that water harvesting serves a useful purpose but it cannot ensure adequate supply to meet all the requirements of the people. Water harvesting means to collect, preserve and use the rain
water. The problem of the area in question is that there is deficient rainfall and small scale water harvesting projects may not be adequate. During
the non rainy days, one of the essential ingredients of water harvesting is
the storing of water. It will not be wrong to say that the biggest dams to the smallest percolating tanks meant to tap the rain water are nothing but water harvesting structures to function by receiving water from the common
rainfall.

Dam serves a number of purposes. It stores water, generates electricity and releases water throughout the year and at times of scarcity. Its storage capacity is meant to control floods and the canal system which emanates therefrom is meant to convey and provide water for drinking, agriculture and industry. In addition thereto, it can also be a source of generating hydro-power. Dam has, therefore, necessarily to be regarded
as an infrastructural project.

There are three stages with regard to the undertaking of an infrastructural project. One is conception or planning, second is decision to undertake the project and the third is the execution of the project. The conception and the decision to undertake a project is to be regarded as a policy decision. While there is always a need for such projects not being unduly delayed, it is at the same time expected that as thorough a study as
is possible will be undertaken before a decision is taken to start a project. Once such a considered decision is taken, the proper execution of the same should be taken expeditiously. It is for the Government to decide how to do its job. When it has put a system in place for the execution of a project and such a system cannot be said to be arbitrary, then the only role which a
Court may have to play is to see that the system works in the manner it was envisaged.

A project may be executed departmentally or by an outside agency.
The choice has to be of the Government. When it undertakes the execution itself, with or without the help of another organisation, it will be expected to undertake the exercise according to some procedure or principles. The
NCA was constituted to give effect to the Award, various sub-groups have been established under the NCA and to look after the grievances of the resettled oustees and each State has set up a Grievance Redressal Machinery. Over and above the NCA is the Review Committee. There is
no reason now to assume that these authorities will not function properly. In our opinion the Court should have no role to play.

It is now well-settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy making
process and the Courts are ill equipped to adjudicate on a policy decision so undertaken. The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and peoples fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means over run in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of latches if the petitioner had the knowledge of such a decision and could have approached
the Court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Latches is one of them.

Public Interest Litigation [PIL] was an innovation essentially to safeguard and protect the human rights of those people who were unable to
protect themselves. With the passage of time the PIL jurisdiction has been ballooning so as to encompass within its ambit subjects such as probity in public life, granting of largess in the form of licences, protecting environment and the like. But the balloon should not be inflated so much that it bursts.
Public Interest Litigation should not be allowed to degenerate to becoming Publicity Interest Litigation or Private Inquisitiveness Litigation.

While exercising jurisdiction in PIL cases Court has not forsaken its duty and role as a Court of law dispensing justice in accordance with law. It is only where there has been a failure on the part of any authority in acting according to law or in non-action or acting in violation of the law that the Court has stepped in. No directions are issued which are in conflict with
any legal provisions. Directions have, in appropriate cases, been given where the law is silent and inaction would result in violation of the Fundamental Rights or other Legal provisions.

While protecting the rights of the people from being violated in any manner utmost care has to be taken that the Court does not transgress its jurisdiction. There is in our Constitutional frame-work a fairly clear demarcation of powers. The Court has come down heavily whenever the executive has sought to impinge upon the Courts jurisdiction.

At the same time, in exercise of its enormous power the Court should not be called upon or undertake governmental duties or functions. The Courts cannot run the Government nor the administration indulge in abuse
or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the constitution casts on it a great obligation as the sentinel to defend the values of the constitution and rights of Indians. The courts must, therefore,
act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the Court will not interfere. When there is a valid law requiring the Government to act in a particular manner the Court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words the Court itself is not above the law.

In respect of public projects and policies which are initiated by the Government the Courts should not become an approval authority. Normally
such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government. If a considered policy decision has been taken,
which is not in conflict with any law or is not mala fide, it will not be in Public Interest to require the Court to go into and investigate those areas which are
the function of the executive. For any project which is approved after due deliberation the Court should refrain from being asked to review the
decision just because a petitioner in filing a PIL alleges that such a decision should not have been taken because an opposite view against the
undertaking of the project, which view may have been considered by the Government, is possible. When two or more options or views are possible and after considering them the Government takes a policy decision it is then
not the function of the Court to go into the matter afresh and, in a way, sit in appeal over such a policy decision.

What the petitioner wants the Court to do in this case is precisely that. The facts enumerated hereinabove clearly indicate that the Central Government had taken a decision to construct the Dam as that was the only solution available to it for providing water to water scare areas. It was known at that time that people will be displaced and will have to be rehabilitated. There is no material to enable this Court to come to the conclusion that the decision was mala fide. A hard decision need not necessarily be a bad decision.

Furthermore environment concern has not only to be of the area which is going to be submerged and its surrounding area. The impact on environment should be seen in relation to the project as a whole. While an area of land will submerge but the construction of the Dam will result in multifold improvement in the environment of the areas where the canal
waters will reach. Apart from bringing drinking water within easy reach the supply of water to Rajasthan will also help in checking the advancement of the Thar Desert. Human habitation will increase there which, in turn, will help in protecting the so far porous border with Pakistan.

While considering Gujarats demand for water, the Government had reports that with the construction of a high dam on the river Narmada, water could not only be taken to the scarcity areas of Northern Gujarat, Saurashtra and parts of Kutch but some water could also be supplied to Rajasthan.

Conflicting rights had to be considered. If for one set of people namely those of Gujarat, there was only one solution, namely, construction of a dam, the same would have an adverse effect on another set of people whose houses and agricultural land would be submerged in water. It is because of this conflicting interest that considerable time was taken before the project was finally cleared in 1987. Perhaps the need for giving the green signal was that while for the people of Gujarat, there was no other solution but to provide them with water from Narmada, the hardships of oustees from Madhya Pradesh could be mitigated by providing them with alternative lands, sites and compensation. In governance of the State, such decisions have to be taken where there are conflicting interests. When a decision is taken by the Government after due consideration and full application of mind, the Court is not to sit in appeal over such decision.

‘ Since long the people of India have been deriving the benefits of the river valley projects. At the time of independence, food-grain was being imported into India but with the passage of time and the construction of
more dams, the position has been reversed. The large-scale river valley projects per se all over the country have made India more than self- sufficient in food. Famines which used to occur have now become a thing of the past. Considering the benefits which have been reaped by the people all over India with the construction of the dams, the Government cannot be faulted with deciding to construct the high dam on the river Narmada with a view to provide water not only to the scarcity areas of Gujarat but also to the small areas of the State of Rajasthan where the shortage of water has been there since the time immemorial.

In the case of projects of national importance where Union of India and/or more than one State(s) are involved and the project would benefit a large section of the society and there is evidence to show that the said project had been contemplated and considered over a period of time at the highest level of the States and the Union of India and more so when the project is evaluated and approval granted by the Planning Commission,
then there should be no occasion for any Court carrying out any review of the same or directing its review by any outside or independent agency or body. In a democratic set up, it is for the elected Government to decide what project should be undertaken for the benefit of the people. Once such a decision had been taken that unless and until it can be proved or shown
that there is a blatant illegality in the undertaking of the project or in its execution, the Court ought not to interfere with the execution of the project.

Displacement of people living on the proposed project sites and the areas to be submerged is an important issue. Most of the hydrology projects are located in remote and in-accessible areas, where local
population is, like in the present case, either illiterate or having marginal means of employment and the per capita income of the families is low. It is a fact that people are displaced by projects from their ancestral homes.
Displacement of these people would undoubtedly disconnect them from
their past, culture, custom and traditions, but then it becomes necessary to harvest a river for larger good. A natural river is not only meant for the people close by but it should be for the benefit of those who can make use
of it, being away from it or near by. Realising the fact that displacement of these people would disconnect them from their past, culture, custom and traditions, the moment any village is earmarked for take over for dam or any other developmental activity, the project implementing authorities have to implement R&R programmes. The R&R plans are required to be
specially drafted and implemented to mitigate problems whatsoever relating to all, whether rich or poor, land owner or encroacher, farmer or tenant, employee or employer, tribal or non-tribal. A properly drafted R&R plan would improve living standards of displaced persons after displacement.
For example residents of villages around Bhakra Nangal Dam, Nagarjun
Sagar Dam, Tehri, Bhillai Steel Plant, Bokaro and Bala Iron and Steel Plant and numerous other developmental sites are better off than people living in
villages in whose vicinity no development project came in. It is not fair that tribals and the people in un-developed villages should continue in the same condition without ever enjoying the fruits of science and technology for
better health and have a higher quality of life style. Should they not be encouraged to seek greener pastures elsewhere, if they can have access to it, either through their own efforts due to information exchange or due to
outside compulsions. It is with this object in view that the R&R plans which are developed are meant to ensure that those who move must be better off
in the new locations at Government cost. In the present case, the R&R packages of the States, specially of Gujarat, are such that the living conditions of the oustees will be much better than what they had in their tribal hamlets.

Loss of forest because of any activity is undoubtedly harmful.
Without going into the question as to whether the loss of forest due to river valley project because of submergence is negligible, compared to de-
forestation due to other reasons like cutting of trees for fuel, it is true that large dams cause submergence leading to loss of forest areas. But it
cannot be ignored and it is important to note that these large dams also cause conversion of waste land into agricultural land and making the area greener. Large dams can also become instruments in improving the environment, as has been the case in the Western Rajasthan, which transformed into a green area because of Indira Gandhi Canal, which draws water from Bhakhra Nangal Dam. This project not only allows the farmers to grow crops in deserts but also checks the spread of Thar desert in adjoining areas of Punjab and Haryana.

Environmental and ecological consideration must, of course, be given due consideration but with proper channellisation of developmental activities ecology and environment can be enhanced. For example, Periyar Dam Reservoir has become an elephant sanctuary with thick green forests all round while at the same time wiped out famines that used to haunt the district of Madurai in Tamil Nadu before its construction. Similarly Krishnarajasagar Dam which has turned the Mandya district which was
once covered with shrub forests with wild beasts into a prosperous one with green paddy and sugarcane fields all round.

So far a number of such river valley projects have been undertaken
in all parts of India. The petitioner has not been able to point out a single instance where the construction of a Dam has, on the whole, had an
adverse environmental impact. On the contrary the environment has improved. That being so there is no reason to suspect, with all the experience gained so far, that the position here will be any different and there will not be overall improvement and prosperity. It should not be forgotten that poverty is regarded as one of the causes of degradation of environment. With improved irrigation system the people will prosper. The construction of Bhakra Dam is a shining example for all to see how the backward area of erstwhile undivided Punjab has now become the granary
of India with improved environment than what was there before the completion of the Bhakra Nangal project.
The Award of the Tribunal is binding on the States concerned. The said Award also envisages the relief and rehabilitation measures which are to be undertaken. If for any reason, any of the State Governments involved lag behind in providing adequate relief and rehabilitation then the proper course, for a Court to take, would be to direct the Awards implementation
and not to stop the execution of the project. This Court, as a Federal Court of the country specially in a case of inter-State river dispute where an Award had been made, has to ensure that the binding Award is implemented. In
this regard, the Court would have the jurisdiction to issue necessary directions to the State which, though bound, chooses not to carry out its obligations under the Award. Just as an ordinary litigant is bound by the decree, similarly a State is bound by the Award. Just as the execution of a decree can be ordered, similarly, the implementation of the Award can be directed. If there is a short fall in carrying out the R&R measures, a time bound direction can and should be given in order to ensure the
implementation of the Award. Putting the project on hold is no solution. It only encourages recalcitrant State to flout and not implement the award with impunity. This certainly cannot be permitted. Nor is it desirable in the national interest that where fundamental right to life of the people who continue to suffer due to shortage of water to such an extent that even the drinking water becomes scarce, non-cooperation of a State results in the stagnation of the project.
The clamour for the early completion of the project and for the water to flow in the canal is not by Gujarat but is also raised by Rajasthan. As per Clause 3 of the final decision of the Tribunal published in the

Gazette notification of India dated 12th December, 1979, the State of Rajasthan has been allocated 0.5 MAF of Narmada water in national interest from Sardar Sarovar Dam. This was allocated to the State of
Rajasthan to utilise the same for irrigation and drinking purposes in the arid and drought-prone areas of Jalore and Barmer districts of Rajasthan
situated on the international border with Pakistan, which have no other available source of water.
Water is the basic need for the survival of human beings and is part
of right of life and human rights as enshrined in Article 21 of the Constitution of India and can be served only by providing source of water where there is none. The Resolution of the U.N.O. in 1977 to which India is a signatory, during the United Nations Water Conference resolved unanimously inter alia
as under:
All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs.

Water is being made available by the State of Rajasthan through
tankers to the civilians of these areas once in four days during summer
season in quantity, which is just sufficient for their survival. The districts of Barmer and Jalore are part of Thar Desert and on account of scarcity of
water the desert area is increasing every year. It is a matter of great concern that even after half a century of freedom, water is not available to all citizens even for their basic drinking necessity violating the human right resolution of U.N.O. and Article 21 of the Constitution of India. Water in the rivers of India has great potentiality to change the miserable condition of the arid, drought-prone and border areas of India.

The availability of drinking water will benefit about 1.91 lac of people residing in 124 villages in arid and drought-prone border areas of Jalore and Barmer districts of Rajasthan who have no other source of water and are suffering grave hardship.

As already seen, the State of Madhya Pradesh is keen for the
reduction of the dams height to 436 ft. Apart from Gujarat and Rajasthan
the State of Maharashtra also is not agreeable to this. The only benefit from the project which Rajasthan get is its share of hydel power from the project. The lowering of the height from 455 ft. to 436 ft. will take away this benefit even though 9399 hectares of its land will be submerged. With the
reduction of height to 436 ft. not only will there be loss of power generation but it would also render the generation of power seasonal and not
throughout the year.

One of the indicators of the living standard of people is the per capita consumption of electricity. There is, however, perennial shortage of power in India and, therefore, it is necessary that the generation increases. The world over, countries having rich water and river systems have effectively exploited these for hydel power generation. In India, the share of hydel power in the total power generated was as high as 50% in the year 1962-63 but the share of hydel power started declining rapidly after 1980. There is more reliance now on thermal power projects. But these thermal power
projects use fossil fuels, which are not only depleting fast but also contribute towards environmental pollution. Global warming due to the greenhouse
effect has become a major cause of concern. One of the various factors responsible for this is the burning of fossil fuel in thermal power plants. There is, therefore, international concern for reduction of greenhouse gases which is shared by the World Bank resulting in the restriction of sanction of funds for thermal power projects. On the other hand, the hydel powers contribution in the greenhouse effect is negligible and it can be termed
ecology friendly. Not only this but the cost of generation of electricity in hydel projects is significantly less. The Award of the Tribunal has taken all these factors into consideration while determining the height of the dam at
455 ft. Giving the option of generating eco-friendly electricity and substituting it by thermal power may not, therefore, be the best option. Perhaps the setting up of a thermal plant may not displace as many families

as a hydel project may but at the same time the pollution caused by the thermal plant and the adverse affect on the neighbourhood could be far greater than the inconvenience caused in shifting and rehabilitating the oustees of a reservoir.
There is and has been in the recent past protests and agitations not only against hydel projects but also against the setting up of nuclear or thermal power plants. In each case reasons are put forth against the execution of the proposed project either as being dangerous (in case of nuclear) or causing pollution and ecological degradation (in the case of thermal) or rendering people homeless and posses adverse environment
impacts as has been argued in the present case. But then electricity has to be generated and one or more of these options exercised. What option to exercise, in our Constitutional framework, is for the Government to decide keeping various factors in mind. In the present case, a considered decision has been taken and an Award made whereby a high dam having an FRL of
455 ft. with capability of developing hydel power to be constructed. In the facts and circumstances enumerated hereinabove, even if this Court could
go into the question, the decision so taken cannot be faulted. DIRECTIONS
While issuing directions and disposing of this case, two conditions
have to be kept in mind, (i) the completion of project at the earliest and (ii) ensuring compliance with conditions on which clearance of the project was
given including completion of relief and rehabilitation work and taking of ameliorative and compensatory measures for environmental protection in compliance with the scheme framed by the Government thereby protecting
the rights under Article 21 of the Constitution. Keeping these principles in view, we issue the following directions.

Construction of the dam will continue as per the Award of the Tribunal.

As the Relief and Rehabilitation Sub-group has cleared the construction up to 90 meters, the same can be undertaken
immediately. Further raising of the height will be only pari passu with the implementation of the relief and rehabilitation and on the
clearance by the Relief and Rehabilitation Sub-group. The Relief and Rehabilitation Sub-Group will give clearance of further construction after consulting the three Grievances Redressal Authorities.

The Environment Sub-group under the Secretary, Ministry of Environment & Forests, Government of India will consider and give, at each stage of the construction of the dam, environment clearance before further construction beyond 90 meters can be undertaken.

The permission to raise the dam height beyond 90 meters will be given by the Narmada Control Authority, from time to time, after it obtains the above-mentioned clearances from the Relief and Rehabilitation Sub-group and the Environment Sub-group.

The reports of the Grievances Redressal Authorities, and of Madhya Pradesh in particular, shows that there is a considerable slackness
in the work of identification of land, acquisition of suitable land and the consequent steps necessary to be taken to rehabilitate the
project oustees. We direct the States of Madhya Pradesh, Maharashtra and Gujarat to implement the Award and give relief and rehabilitation to the oustees in terms of the packages offered by them and these States shall comply with any direction in this regard which is given either by the NCA or the Review Committee or the Grievances Redressal Authorities.

Even though there has been substantial compliance with the conditions imposed under the environment clearance the NCA and the Environment Sub-group will continue to monitor and ensure that all steps are taken not only to protect but to restore and improve the environment.
The NCA will within four weeks from today draw up an Action Plan in relation to further construction and the relief and rehabilitation work to be undertaken. Such an Action Plan will fix a time frame so as to
ensure relief and rehabilitation pari passu with the increase in the height of the dam. Each State shall abide by the terms of the action plan so prepared by the NCA and in the event of any dispute or difficulty arising, representation may be made to the Review
Committee. However, each State shall be bound to comply with the directions of the NCA with regard to the acquisition of land for the purpose of relief and rehabilitation to the extent and within the period specified by the NCA.

The Review Committee shall meet whenever required to do so in the event of there being any un-resolved dispute on an issue which is before the NCA. In any event the Review Committee shall meet at least once in three months so as to oversee the progress of construction of the dam and implementation of the R&R
programmes.

If for any reason serious differences in implementation of the Award arise and the same cannot be resolved in the Review Committee, the Committee may refer the same to the Prime Minister
whose decision, in respect thereof, shall be final and binding on all concerned.

The Grievances Redressal Authorities will be at liberty, in case the need arises, to issue appropriate directions to the respective States for due implementation of the R&R programmes and in case of non- implementation of its directions, the GRAs will be at liberty to approach the Review Committee for appropriate orders.

Every endeavour shall be made to see that the project is completed as expeditiously as possible.

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IN THE SUPREME COURT OF INDIA
THE CHAIRMAN, RAILWAY BOARD & ORS. …PETITIONER
Vs.
MRS. CHANDRIMA DAS & ORS. …RESPONDENT
DATE OF JUDGMENT: 28/01/2000
BENCH: R.P.Sethi, S.Saghir Ahmad

J U D G M E N T

Leave granted.

Mrs. Chandrima Das, a practising advocate of the Calcutta High Court, filed a petition under Article 226 of the Constitution against the Chairman, Railway Board;

General Manager, Eastern Railway; Divisional Railway Manager, Howrah Division; Chief Commercial Manager, Eastern Railway; State of West Bengal through the Chief Secretary;

Home Secretary, Government of West Bengal; Superintendent of Police (Railways), Howrah; Superintendent of Police, Howrah; Director General of Police, West Bengal and many other Officers including the Deputy High Commissioner, Republic of Bangladesh; claiming compensation for the victim, Smt. Hanuffa Khatoon, a Bangladeshi national who was gang-raped by many including employees of the Railways in a room at Yatri Niwas at Howrah Station of the Eastern Railway regarding which G.R.P.S. Case No. 19/98 was registered on 27th February, 1998. Mrs. Chandrima Das also claimed several other reliefs including a direction to the respondents to eradicate anti-social and criminal activities at Howrah Railway Station.

The facts as noticed by the High Court in the impugned judgment are as follows:- “Respondents Railways and the Union of India have admitted that amongst the main accused you are employees of the railways and if the prosecution version is proved in accordance with law, they are perpetrators of the heinous crime of gang rape repeatedly committed upon the hapless victim Hanufa Khatun. It is not in dispute that Hanufa came from Bangladesh. She at the relevant time was the elected representative. She at the relevant time was the elected representative of the Union Board. She arrived at Howrah Railway Station on 26th February, 1998 at about 14.00 hours to avail Jodhpur Express at 23.00 Hours for paying a visit to Ajmer Sharif. With that intent in mind, she arrived at Calcutta on 24th February, 1998 and stayed at a hotel at 10, Sudder Street, Police Station Taltola and came to Howrah Station on the date and time aforementioned. She had, however, a wait listed ticket and so she approached a Train Ticket Examiner at the Station for confirmation of berth against her ticket. The Train Ticket Examiner asked her to wait in the Ladies Waiting room. She accordingly came to the ladies waiting room and rested there.

At about 17.00 hours on 26th February, 1998 two unknown persons (later identified as one Ashoke Singh, a tout who posed himself as a very influential person of the Railway and Siya Ram Singh a railway ticket broker having good acquaintance with some of the Railway Staff of Howrah Station) approached her, took her ticket and returned the same after confirming reservation in Coach No.S-3 (Berth No.17) of Jodhpur Express. At about 20.00 hours Siya Ram Singh came again to her with a boy named Kashi and told her to accompany the boy to a restaurant if she wanted to have food for the night. Accordingly at about 21.00 hours she went to a nearby eating house with Kashi and had her meal there. Soon after she had taken her meal, she vomitted and came back to the Ladies Waiting room. At about 21.00 hours Ashoke Singh along with Rafi Ahmed a Parcel Supervisor at Howrah Station came to the Ladies Niwas before boarding the train. She appeared to have some doubt initially but on being certified by the lady attendants engaged on duty at the Ladies Waiting Room about their credentials she accompanied them to Yatri Niwas. Sitaram Singh, a khalasi of electric Department of Howrah Station joined them on way to Yatri Niwas. She was taken to room No.102 on the first floor of Yatri Niwas. The room was booked in the name of Ashoke Singh against Railway Card pass No. 3638 since 25th February, 1998. In room No.102 two other persons viz. one Lalan Singh, Parcel Clerk of Howrah Railway Station and Awdesh Singh, Parcel Clearing Agent were waiting. Hanufa Khatun suspected someting amiss when Ashoke Singh forced her into the room. Awdesh Singh bolted the room from outside and stood on guard outside the room. The remaining four persons viz. Ashoke, Lalan, Rafi and Sitaram took liquor inside the room and also forcibly compelled her to consume liquor. All the four persons who were present inside the room brutally violated, Hanufa Khatun, it is said, was in a state of shock and daze. When she could recover she managed to escape from the room of Yatri Niwas and came back to the platform where again she met Siya Ram Singh and found him talking to Ashoke Singh. Seeing her plight Siya Ram Singh pretended to be her saviour and also abused and slapped Ashoke Singh. Since it was well past midnight and Jodhpur Express had already departed, Siya Ram requested Hanufa Khatoon to accompany him to his residence to rest for the night with his wife and children. He assured her to help entrain Poorva Express on the following morning. Thereafter Siyaram accompanied by Ram Samiram Sharma, a friend of Siyaram took her to the rented flat of Ram Samiram Sharma at 66, Pathuriaghata Street, Police Station Jorabagan, Calcutta. There Siyaram raped Hanufa and when she protested and resisted violently Siyaram and Ram Samiran Sharma gagged her mouth and nostrils intending to kill her as a result Hanufa bled profusely. On being informed by the landlord of the building following the hue and cry raised by Hanufa Khatun, she was rescued by Jorabagan Police.” It was on the basis of the above facts that the High Court had awarded a sum of Rs.10 lacs as compensation for Smt. Hanuffa Khatoon as the High Court was of the opinion that the rape was committed at the building (Rail Yatri Niwas) belonging to the Railways and was perpetrated by the Railway employees.

In the present appeal, we are not concerned with many directions issued by the High Court. The only question argued before us was that the Railways would not be liable to pay compensation to Smt. Hanuffa Khatoon who was a foreigner and was not an Indian national. It is also contended that commission of the offence by the person concerned would not make the Railway or the Union of India liable to pay compensation to the victim of the offence. It is contended that since it was the individual act of those persons, they alone would be prosecuted and on being found guilty would be punished and may also be liable to pay fine or compensation, but having regard to the facts of this case, the Railways, or, for that matter, the Union of India would not even be vicariously liable. It is also contended that for claiming damages for the offence perpetrated on Smt. Hanuffa Khatoon, the remedy lay in the domain of Private Law and not under Public Law and, therefore, no compensation could have been legally awarded by the High Court in a proceeding under Article 226 of the Constitution and, that too, at the instance of a practising advocate who, in no way, was concerned or connected with the victim.

We may first dispose of the contention raised on behalf of the appellants that proceedings under Article 226 of the Constitution could not have been legally initiated for claiming damages from the Railways for the offence of rape committed on Smt. Hanuffa Khatoon and that Smt.

Hanuffa Khatoon herself should have approached the Court in the realm of Private Law so that all the questions of fact could have been considered on the basis of the evidence adduced by the parties to record a finding whether all the ingredients of the commission of “tort” against the person of Smt. Hanuffa Khatoon were made out, so as to be entitled to the relief of damages. We may also consider the question of locus standi as it is contended on behalf of the appellants that Mrs. Chandrima Das, who is a practicing Advocate of the High Court of Calcutta, could not have legally instituted these proceedings.

The distinction between “Public Law” and “Private Law” was considered by a Three-Judge Bench of this Court in Common Cause, A Regd. Society vs. Union of India & Ors.

(1999) 6 SCC 667 = AIR 1999 SC 2979 = [1994] INSC 406; (1999) 5 JT 237, in which it was, inter alia, observed as under :

“Under Article 226 of the Constitution, the High Court has been given the power and jurisdiction to issue appropriate Writs in the nature of Mandamus, Certiorari, Prohibition, Quo-Warranto and Habeas Corpus for the enforcement of Fundamental Rights or for any other purpose.

Thus, the High Court has jurisdiction not only to grant relief for the enforcement of Fundamental Rights but also for “any other purpose” which would include the enforcement of public duties by public bodies. So also, the Supreme Court under Article 32 has the jurisdiction to issue prerogative Writs for the enforcement of Fundamental Rights guaranteed to a citizen under the Constitution.

Essentially, under public law, it is the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which is resolved. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The exercise of constitutional powers by the High Court and the Supreme Court under Article 226 or 32 has been categorised as power of “judicial review”. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Article 14 read with other Articles dealing with Fundamental Rights, every executive action of the Govt. or other public bodies, including Instrumentalities of the Govt., or those which can be legally treated as “Authority” within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of this Court under Article 32 or the High Courts under Article 226 and can be validly scrutinised on the touchstone of the Constitutional mandates.” The earlier decision, namely, Life Insurance Corporation of India vs. Escorts Limited & Ors. 1985 Supp.

(3) SCR 909 = [1985] INSC 252; (1986) 1 SCC 264 = [1985] INSC 252; AIR 1986 SC 1370, in which it was observed as under:

“Broadly speaking, the Court will examine actions of State if they pertain to the pubic law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances.” was relied upon.

Various aspects of the Public Law field were considered. It was found that though initially a petition under Article 226 of the Constitution relating to contractual matters was held not to lie, the law underwent a change by subsequent decisions and it was noticed that even though the petition may relate essentially to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226. The Public Law remedies have also been extended to the realm of tort. This Court, in its various decisions, has entertained petitions under Article 32 of the Constitution on a number of occasions and has awarded compensation to the petitioners who had suffered personal injuries at the hands of the officers of the Govt. The causing of injuries, which amounted to tortious act, was compensated by this Court in many of its decisions beginning from Rudul Sah vs. State of Bihar 1983(3) SCR 508 = [1983] INSC 87; (1983) 4 SCC 141 = [1983] INSC 87; AIR 1983 SC 1086.

[See also : Bhim Singh vs. State of Jammu & Kashmir (1985) 4 SCC 577 = AIR 1986 SC 494; People’s Union for Democratic Rights vs. State of Bihar[1986] INSC 276; , 1987 (1) SCR 631 = (1987) 1 SCC 265 = [1986] INSC 276; AIR 1987 SC 355; People’s Union for Democratic Rights Thru. Its Secy. vs. Police Commissioner, Delhi Police Headquarters, (1989) 4 SCC 730 = [1992] INSC 74; 1989 (1) SCALE 599;

SAHELI, A Woman’s Resources Centre vs. Commissioner of Police, Delhi [1989] INSC 384; (1990) 1 SCC 422 = 1989 (Supp.) SCR 488 = [1989] INSC 384; AIR 1990 SC 513; Arvinder Singh Bagga vs. State of U.P.

(1994) 6 SCC 565 = AIR 1995 SC 117; P. Rathinam vs. Union of India (1989) Supp. 2 SCC 716; In Re: Death of Sawinder Singh Grower (1995) Supp. (4) SCC 450 = JT (1992) 6 SC 271 = [1996] INSC 428; 1992 (3) SCALE 34; Inder Singh vs. State of Punjab (1995) 3 SCC 702 = AIR 1995 SC 1949; D.K. Basu vs. State of West Bengal (1997) 1 SCC 416 = AIR 1997 SC 610].

In cases relating to custodial deaths and those relating to medical negligence, this Court awarded compensation under Public Law domain in Nilabati Behera vs.

State of Orissa [1993] INSC 154; (1993) 2 SCC 746 = [1993] INSC 154; 1993 (2) SCR 581 = [1993] INSC 154; AIR 1993 SC 1960; State of M.P. vs. Shyam Sunder Trivedi (1995) 4 SCC 262 = [1996] INSC 493; 1995 (3) SCALE 343; People’s Union for Civil Liberties vs. Union of India (1997) 3 SCC 433 = AIR 1997 SC 1203 and Kaushalya vs. State of Punjab (1996) 7 SCALE (SP) 13; Supreme Court Legal Aid Committee vs. State of Bihar (1991) 3 SCC 482; Dr. Jacob George vs. State of Kerala [1994] INSC 240; (1994) 3 SCC 430 = [1996] INSC 334; 1994 (2) SCALE 563; Paschim Bangal Khet Mazdoor Samity vs. State of West Bengal & Ors.

[1996] INSC 659; (1996) 4 SCC 37 = [1996] INSC 659; AIR 1996 SC 2426; and Mrs. Manju Bhatia vs. N.D.M.C. (1997) 6 SCC 370 = AIR 1998 SC 223 = (1997) 4 SCALE 350.

Having regard to what has been stated above, the contention that Smt. Hanuffa Khatoon should have approached the civil court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the Public Law notwithstanding that a suit could be filed for damages under Private Law.

In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of Fundamental Rights which is involved. Smt. Hanuffa Khatoon was a victim of rape. This Court in Bodhisatwa vs.

Ms. Subdhra Chakroborty [1995] INSC 856; (1996) 1 SCC 490 has held “rape” as an offence which is violative of the Fundamental Right of a person guaranteed under Article 21 of the Constitution. The Court observed as under :

“Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is therefore the most hated crime. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21.” Rejecting, therefore, the contention of the learned counsel for the appellants that the petition under Public Law was not maintainable, we now proceed to his next contention relating to the locus standi of respondent, Mrs.

Chandrima Das, in filing the petition.

The main contention of the learned counsel for the appellants is that Mrs. Chandrima Das was only a practising advocate of the Calcutta High Court and was, in no way, connected or related to the victim, Smt. Hanuffa Khatoon and, therefore, she could not have filed a petition under Article 226 for damages or compensation being awarded to Smt. Hanuffa Khatoon on account of the rape committed on her. This contention is based on a misconception. Learned counsel for the appellants is under the impression that the petition filed before the Calcutta High Court was only a petition for damages or compensation for Smt. Hanuffa Khatoon. As a matter of fact, the reliefs which were claimed in the petition included the relief for compensation. But many other reliefs as, for example, relief for eradicating anti-social and criminal activities of various kinds at Howrah Railway Station were also claimed. The true nature of the petition, therefore, was that of a petition filed in public interest.

The existence of a legal right, no doubt, is the foundation for a petition under Article 226 and a bare interest, may be of a minimum nature, may give locus standi to a person to file a Writ Petition, but the concept of “Locus Standi” has undergone a sea change, as we shall presently notice. In Dr. Satyanarayana Sinha vs. S. Lal & Co. Pvt. Ltd., [1973] INSC 163; AIR 1973 SC 2720 = [1973] INSC 163; (1973) 2 SCC 696, it was held that the foundation for exercising jurisdiction under Article 32 or Article 226 is ordinarily the personal or individual right of the petitioner himself. In writs like Habeas Corpus and Quo Warranto, the rule has been relaxed and modified.

In S.P. Gupta & Ors. vs. Union of India & Ors., AIR 1982 SC 149 = (1981) Supp. SCC 87, the law relating to locus standi was explained so as to give a wider meaning to the phrase. This Court laid down that “practising lawyers have undoubtedly a vital interest in the independence of the judiciary; they would certainly be interested in challenging the validity or constitutionality of an action taken by the State or any public authority which has the effect of impairing the independence of the judiciary.” It was further observed that “lawyer’s profession was an essential and integral part of the judicial system; they could figuratively be described as priests in the temple of justice. They have, therefore, a special interest in preserving the integrity and independence of the judicial system; they are equal partners with the Judges in the administration of justice. The lawyers, either in their individual capacity or as representing some Lawyers’ Associations have the locus standi to challenge the circular letter addressed by the Union Law Minister to the Governors and Chief Ministers directing that one third of the Judges of the High Court should, as far as possible, be from outside the State.” In the context of Public Interest Litigation, however, the Court in its various Judgments has given widest amplitude and meaning to the concept of locus standi. In People’s Union for Democratic Rights and Ors. vs. Union of India & Ors., AIR 1982 SC 1473 = (1982) 3 SCC 235, it was laid down that Public Interest Litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to Court. (See also: Bandhua Mukti Morcha vs.

Union of India & Ors., [1983] INSC 206; AIR 1984 SC 802 = [1983] INSC 206; 1984 (2) SCR 67 = [1983] INSC 206; (1984) 3 SCC 161 and State of Himachal Pradesh vs.

Student’s Parent Medical College, Shimla & Ors., [1985] INSC 86; AIR 1985 SC 910 = [1985] INSC 86; (1985) 3 SCC 169 on the right to approach the Court in the realm of Public Interest Litigation). In Bangalore Medical Trust vs. B.S. Muddappa and Ors., [1991] INSC 216; AIR 1991 SC 1902 = [1991] INSC 216; 1991 (3) SCR 102 = [1991] INSC 216; (1991) 4 SCC 54, the Court held that the restricted meaning of aggrieved person and narrow outlook of specific injury has yielded in favour of a broad and wide construction in the wake of Public Interest Litigation. The Court further observed that public-spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of public nature. They cannot be ignored or overlooked on technical or conservative yardstick of the rule of locus standi or absence of personal loss or injury. There has, thus, been a spectacular expansion of the concept of locus standi. The concept is much wider and it takes in its stride anyone who is not a mere “busy-body”.

Having regard to the nature of the petition filed by respondent Mrs. Chandrima Das and the relief claimed therein it cannot be doubted that this petition was filed in public interest which could legally be filed by the respondent and the argument that she could not file that petition as there was nothing personal to her involved in that petition must be rejected.

It was next contended by the learned counsel appearing on behalf of the appellants, that Smt. Hanuffa Khatoon was a foreign national and, therefore, no relief under Public Law could be granted to her as there was no violation of the Fundamental Rights available under the Constitution. It was contended that the Fundamental Rights in Part III of the Constitution are available only to citizens of this country and since Smt. Hanuffa Khatoon was a Bangladeshi national, she cannot complain of the violation of Fundamental Rights and on that basis she cannot be granted any relief. This argument must also fail for two reasons; first, on the ground of Domestic Jurisprudence based on Constitutional provisions and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948, which has the international recognition as the “Moral Code of Conduct” having been adopted by the General Assembly of the United Nations. We will come to the question of Domestic Jurisprudence a little later as we intend to first consider the principles and objects behind Universal Declaration of Human Rights, 1948, as adopted and proclaimed by the United Nations General Assembly Resolution of 10th December, 1948. The preamble, inter alia, sets out as under:

“Whereas recognition of the INHERENT DIGNITY and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.

Whereas it is essential to promote the development of friendly relations between nations.

Whereas the people of the United Nations have in the Charter affirmed their faith in fundamental human rights, IN THE DIGNITY AND WORTH OF THE HUMAN PERSON AND IN THE EQUAL RIGHTS OF MEN AND WOMEN and have determined to promote social progress and better standards of life in larger freedom. Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge.” Thereafter, the Declaration sets out, inter alia, in various Articles, the following:

“Article 1 — All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2 — Every one is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, NATIONAL OR SOCIAL ORIGIN, PROPERTY, BIRTH OR OTHER STATUS.

Furthermore, NO DISTINCTION SHALL BE MADE ON THE BASIS OF THE POLITICAL, JURISDICTIONAL OR INTERNATIONAL STATUS OF THE COUNTRY OR TERRITORY to which a person belongs, whether it be independent, trust, non-self governing or under any other limitation of sovereignty.

Article 3 — Everyone has the right to life, liberty and security of person.

Article 5 — No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 7 — All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 9 — No one shall be subjected to arbitrary arrest, detention or exile.” Apart from the above, the General Assembly, also while adopting the Declaration on the Elimination of Violence against Women, by its Resolution dated 20th December, 1993, observed in Article 1 that, “violence against women” means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” In Article 2, it was specified that, “violence against women shall be understood to encompass, but not be limited to:

(a) Physical, sexual and psychological violence occurring in the family including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;

(b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;

(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.” In Article 3, it was specified that “women are entitlted to the equal enjoyment and protection of all human rights, which would include, inter alia,:

(a) the right to life, (b) the right to equality, and (c) the right to liberty and security of person.

The International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to the above words in those Declarations and Covenants have to be such as would help in effective implementation of those Rights. The applicability of the Universal Declaration of Human Rights and principles thereof may have to be read, if need be, into the domestic jurisprudence. Lord Diplock in Salomon v.

Commissioners of Customs and Excise [1996] 3 All ER 871 said that there is a, prima facie, presumption that Parliament does not intend to act in breach of international law, including specfic treaty obligations. So also, Lord Bridge in Brind v. Secretary of State for the Home Department [1991] UKHL 4; [1991] 1 All ER 720, observed that it was well settled that, in construing any provision in domestic legislation which was ambiguous in the sense that it was capable of a meaning which either conforms to or conflicts with the International Convention, the courts would presume that Parliament intended to legislate in conformity with the Convention and not in conflict with it.

The domestic application of international human rights and norms was considered by the Judicial Colloquia (Judges and Lawyers) at Bangalore in 1988. It was later affirmed by the Colloquia that it was the vital duty of an independent judiciary to interpret and apply national constitutions in the light of those principles. Further Colloquia were convened in 1994 at Zimbabwe, in 1996 at Hong Kong and in 1997 at Guyana and in all those Colloquia, the quetion of domestic application of international and regional human rights specially in relation to women, was considered. The Zimbabwe Declaration 1994, inter alia, stated :

“Judges and lawyers have duty to familiarise themselves with the growing international jurisprudence of human rights and particularly with the expanding material on the protection and promotion of the human rights of women.” But this situation may not really arise in our country.

Our Constitution guarantees all the basic and fundamental human rights set out in the Universal Declaration of Human Rights, 1948, to its citizens and other persons. The chapter dealing with the Fundamental Rights is contained in Part III of the Constitution. The purpose of this Part is to safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond the reach of the political parties who, by virtue of their majority, may come to form the Govt. at the Centre or in the State.

The Fundamental Rights are available to all the “citizens” af the country but a few of them are also available to “persons”. While Article 14, which guarantees equality before law or the equal protection of laws within the territory of India, is applicable to “person” which would also include the “citizen” of the country and “non- citizen” both, Article 15 speaks only of “citizen” and it is specifically provided therein that there shall be no discrimination against any “citizen” on the ground only of religion, race, caste, sex, place of birth or any of them nor shall any citizen be subjected to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment, or the use of wells, tanks, bathing ghats, roads and places of public resort on the aforesaid grounds.

Fundamental Right guaranteed under Article 15 is, therefore, restricted to “citizens”. So also, Article 16 which guarantees equality of opportunity in matters of public employment is applicable only to “citizens”. The Fundamental Rights contained in Article 19, which contains the right to “Basic Freedoms”, namely, freedom of speech and expression; freedom to assemble peaceably and without arms;

freedom to form associations or unions; freedom to move freely throughout the territory of India; freedom to reside and settle in any part of the territory of India and freedom to practise any profession, or to carry on any occupation, trade or business, are available only to “citizens” of the country. The word “citizen” in Article 19 has not been used in a sense different from that in which it has been used in Part II of the Constitution dealing with “citizenship”.

[See: State Trading Corporation of India Ltd. vs. The Commercial Tax Officer and Others, [1963] INSC 157; AIR 1963 SC 1811 = 1964 (4) SCR 99]. It has also been held in this case that the words “all citizens” have been deliberately used to keep out all “non-citizens” which would include “aliens”. It was laid down in Hans Muller of Nurenburg vs. Superintendent Presidency Jail Calcutta[1955] INSC 7; , AIR 1955 SC 367 (374) = [1955] INSC 7; 1955 (1) SCR 1284, that this Article applies only to “citizens”. In another decision in Anwar vs. State of J & K, AIR 1971 SC 337 = 1971 (1) SCR 637 = (1971) 3 SCC 104, it was held that non-citizen could not claim Fundamental Rights under Article

19. In Naziranbai vs. State, AIR 1957 M.B. 1 and Lakshmi Prasad & Anr. vs. Shiv Pal & Others, AIR 1974 Allahabad 313, it was held that Article 19 does not apply to a “foreigner”. The Calcutta High Court in Sk. Md. Soleman vs. State of West Bengal and Another, AIR 1965 Calcutta 312, held that Article 19 does not apply to a Commonwealth citizen.

In Anwar vs. State of J & K, AIR 1971 SC 337 = 1971 (1) SCR 637 = (1971) 3 SCC 104 (already referred to above), it was held that the rights under Articles 20, 21 and 22 are available not only to “citizens” but also to “persons” which would include “non-citizens”.

Article 20 guarantees right to protection in respect of conviction for offences. Article 21 guarantees right to life and personal liberty while Article 22 guarantees right to protection against arbitrary arrest and detention. These are wholly in consonance with Article 3, Article 7 and Article 9 of the Universal Declaration of Human Rights, 1948.

The word “LIFE” has also been used prominently in the Universal Declaration of Human Rights, 1948. [See: Article 3 quoted above]. The Fundamental Rights under the Constitution are almost in consonance with the Rights contained in the Universal Declaration of Human Rights as also the Declaration and the Covenants of Civil and Political Rights and the Covenants of Economic, Social and Cultural Rights, to which India is a party having ratified them, as set out by this Court in Kubic Darusz vs. Union of India & Ors. [1990] INSC 15; (1990) 1 SCC 568 = [1990] INSC 15; AIR 1990 SC 605. That being so, since “LIFE” is also recognised as a basic human right in the Universal Declaration of Human Rights, 1948, it has to have the same meaning and interpretation as has been placed on that word by this Court in its various decisions relating to Article 21 of the Constitution. The meaning of the word “life” cannot be narrowed down. According to the tenor of the language used in Article 21, it will be available not only to every citizen of this country, but also to a “person” who may not be a citizen of the country.

Let us now consider the meaning of the word “LIFE” interpreted by this Court from time to time. In Kharak Singh vs. State of U.P.[1962] INSC 377; , AIR 1963 SC 1295 = 1964 (1) SCR 332, it was held that the term “life” indicates something more than mere animal existence. [See also : State of Maharashtra vs. Chandrabhan Tale[1983] INSC 76; , AIR 1983 SC 803 = 1983 (3) SCR 337 = [1983] INSC 76; (1983) 3 SCC 387]. The inhibitions contained in Article 21 against its deprivation extends even to those faculties by which life is enjoyed. In Bandhua Mukti Morcha vs. U.O.I.[1983] INSC 206; , AIR 1984 SC 802 = [1983] INSC 206; 1984 (2) SCR 67 = [1983] INSC 206; (1984) 3 SCC 161, it was held that the right to life under Article 21 means the right to live with dignity, free from exploitation. [See also: Maneka Gandhi vs. U.O.I., AIR 1978 SC 597 = 1978 (2) SCR 621 = (1978) 1 SCC 248 and Board of Trustees of the Port of Bombay vs. Dilip Kumar Raghavendranath Nadkarni[1982] INSC 82; , AIR 1983 SC 109 = [1982] INSC 82; 1983 (1) SCR 828 = [1982] INSC 82; (1983) 1 SCC 124].

On this principle, even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the Constitutional provisions.

They also have a right to “Life” in this country. Thus, they also have the right to live, so long as they are here, with human dignity. Just as the State is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens.

The Rights guaranteed under Part III of the Constitution are not absolute in terms. They are subject to reasonable restrictions and, therefore, in case of non- citizen also, those Rights will be available subject to such restrictions as may be imposed in the interest of the security of the State or other important considerations.

Interest of the Nation and security of the State is supreme.

Since 1948 when the Universal Declaration was adopted till this day, there have been many changes – political, social and economic while terrorism has disturbed the global scenario. Primacy of the interest of Nation and the security of State will have to be read into the Universal Declaration as also in every Article dealing with Fundamental Rights, including Article 21 of the Indian Constitution.

It has already been pointed out above that this Court in Bodhisatwa’s case (supra) has already held that “rape” amounts to violation of the Fundamental Right guaranteed to a woman under Article 21 of the Constitution.

Now, Smt. Hanuffa Khatoon, who was not the citizen of this country but came here as a citizen of Bangladesh was, nevertheless, entitled to all the constitutional rights available to a citizen so far as “Right to Life” was concerned. She was entitled to be treated with dignity and was also entitled to the protection of her person as guaranteed under Article 21 of the Constitution. As a national of another country, she could not be subjected to a treatment which was below dignity nor could she be subjected to physical violence at the hands of Govt. employees who outraged her modesty. The Right available to her under Article 21 was thus violated. Consequently, the State was under the Constitutional liability to pay compensation to her. The judgment passed by the Calcutta High Court, therefore, allowing compensation to her for having been gang-raped, cannot be said to suffer from any infirmity.

Learned counsel for the appellants then contended that the Central Govt. cannot be held vicariously liable for the offence of rape committed by the employees of the Railways.

It was contended that the liability under the Law of Torts would arise only when the act complained of was performed in the course of official duty and since rape cannot be said to be an official act, the Central Govt. would not be liable even under the Law of Torts. The argument is wholly bad and is contrary to the law settled by this Court on the question of vicarious liability in its various decisions.

In State of Rajasthan vs. Mst. Vidhyawati [1962] INSC 36; AIR 1962 SC 933, it was held that the Govt. will be vicariously liable for the tortious act of its employees. This was a case where a claim for damages was made by the heirs of a person who died in an accident caused by the negligence of the driver of a Govt. vehicle. Reference may also be made to the decisions of this Court in State of Gujarat vs.

Memon Mahomed Haji Hasan [1967] INSC 150; AIR 1967 SC 1885 and Smt. Basava Kom Dyamogouda Patil vs. State of Mysore AIR 1977 SC 1749.

These principles were reiterated in N. Nagendra Rao & Co.

vs. State of A.P. [1994] INSC 454; AIR 1994 SC 2663 = [1994] INSC 454; (1994) 6 SCC 205 and again in State of Maharashtra vs. Kanchanmala Vijaysing Shirke, 1995 ACJ 1021 (SC) = (1995) 5 SCC 659 = JT 1995 (6) SC 155. Reliance placed by the counsel for the appellants on the decision of this Court in Kasturi Lal Ralia Ram Jain vs. State of U.P. [1964] INSC 207; AIR 1965 SC 1039 = [1964] INSC 207; 1965 (1) SCR 375 cannot help him as this decision has not been followed by this Court in the subsequent decisions, including the decisions in State of Gujarat vs. Memon Mahomed Haji Hasan and Smt. Basava Kom Dyamogouda Patil vs. State of Mysore (supra). The decision in Kasturi Lal’s case was also severely criticised by Mr. Seervai in his prestigious book – Constitutional Law of India. A Three- Judge Bench of this Court in Common Cause, A Regd. Society vs. Union of India (1999) 6 SCC 667 also did not follow the decision in Kasturi Lal’s case (supra) and observed that the efficacy of this decision as a binding precedent has been eroded.

The theory of Sovereign power which was propounded in Kasturi Lal’s case has yielded to new theories and is no longer available in a welfare State. It may be pointed out that functions of the Govt. in a welfare State are manifold, all of which cannot be said to be the activities relating to exercise of Sovereign powers. The functions of the State not only relate to the defence of the country or the administration of justice, but they extend to many other spheres as, for example, education, commercial, social, economic, political and even marital. These activities cannot be said to be related to Sovereign power.

Running of Railways is a commercial activity.

Establishing Yatri Niwas at various Railway Stations to provide lodging and boarding facilities to passengers on payment of charges is a part of the commercial activity of the Union of India and this activity cannot be equated with the exercise of Sovereign power. The employees of the Union of India who are deputed to run the Railways and to manage the establishment, including the Railway Stations and Yatri Niwas, are essential components of the Govt. machinery which carries on the commercial activity. If any of such employees commits an act of tort, the Union Govt., of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees. Kasturi Lal’s decision, therefore, cannot be pressed in aid.

Moreover, we are dealing with this case under Public Law domain and not in a suit instituted under Private Law domain against persons who, utilising their official position, got a room in the Yatri Niwas booked in their own name where the act complained of was committed.

No other point was raised before us. The appeal having no merit is dismissed with the observation that the amount of compensation shall be made over to the High Commissioner for Bangladesh in India for payment to the victim, Smt. Hanuffa Khatoon. The payment to the High Commissioner shall be made within three months. There will be no order as to costs.

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IN THE SUPREME COURT OF INDIA

STATE OF WEST BENGAL …PETITIONER
Vs.
MIR MOHAMMAD OMAR & ORS. …RESPONDENT

DATE OF JUDGMENT: 29/08/2000

BENCH: R.P.Sethi, K.T.Thomas

J U D G M E N T

THOMAS, J.

A young businessman ofCalcutta was abducted and killed. The kingpin of the abductors and some of his henchmen were later nabbed and were tried for the offences. The trial court convicted them under Section 364 read with Section 34 of the Indian Penal Code, but not for murder, and sentenced them each to rigorous imprisonment for 10 years. A Division Bench of the Calcutta High Court rejected the State appeal against the acquittal for murder and reduced the sentence to a short term imprisonment restricting it to the period which the convicted persons had already undergone. The State of West Bengal as well as the convicted persons filed these appeals against the said decision of the Calcutta High Court, the former mainly challenging the acquittal for murder charge and the latter challenging the very conviction entered against them.

Narration of material facts of this case, in a brief manner, is necessary before considering the contentions raised. The victim of the offence was one Mahesh Kumar Aggarwal (‘Mahesh’ for short). He was doing some small business at Bow Bazar area (Calcutta). He was a bachelor aged 29 and he was residing with his sister Anushila Devi (PW-9) in an apartment situated on the Westen Street which was re-christened as Banbuk Gali. First accused Mir Mohammad @ Omar and 7th accused Sajid Ali were friends and associates in many activities indulged in at Bow Bazar area and the other accused were all the henchmen of Omar.

Sajid Ali (7th accused) wanted Mahesh to part with a sum of Rs. 50,000/-, almost as a ransom, for allowing him to deal with his business unobstructed. But the deceased did not capitulate to the demand and such refusal led to a dig between the two. It seems Mahesh scored an upper hand in the dig. The above episode happened about 10-12 days before the death of Mahesh.

The night of 4.11.1984 became horrendously eventful for Mahesh. The events started with the gate-crashing made by some assailants led by A-7 Sajid Ali, into the apartment of Anushila Devi (PW-9) in search of her brother Mahesh.

Having failed to see him there the assailants left the apartment after hurling threatening words at the housewife.

About an hour later, Mahesh reached the apartment and was told by his sister of what happened. Mahesh got frightened and left the house lest the assailants might come back to that place.

By about 11.00 P.M. Mahesh reached the residence of his friend Abdul Aziz (PW-4) and took asylum therein. But hardly an hour passed he heard the sound of knocking at the door and when it was opened they saw one fruit-seller (by name Moin) standing at the doorstep for conveying a message that A-1 Omar was waiting outside to see Mahesh. When he stepped outside he saw A-1 Omar who then asked him to accompany him. But Mahesh refused to do so. Then A-1 Omar forcibly took him to a rickshaw to be taken away from that site, but Mahesh managed to escape therefrom and ran away towards Giri Babu Lane.

Mahesh reached the place where PW-5 (Mohd. Sayeed) was residing on Giri Babu Lane and sought asylum therein.

He narrated to PW-5 all what had happened till then. He was allowed to sleep in that room, and concealed himself beneath the Chowki of that room.

The time was about 2.30 A.M. when there was knocking at the door of PW-5’s room. He opened the door and found A-1 and other accused standing just outside. Four of the accused sneaked into the room and made a prowl for Mahesh and traced him out in that snoop. The victim was dragged out of the room. A-1 yelled at the victim: “You escaped earlier. Now let me see how you would escape again.” Hearing the commotion some of the neighbours woke up from sleep. PW-6 (Mohd. Idris) went out to see what happened and then saw some of the assailants (including the 7th accused in this case) forcibly dragging Mahesh towards the Central Avenue. In the course of such towing A-1 was showering lathi blows on Mahesh saying “I will beat you and kill you like a pig”. A-7 was heard saying, “As you did not give the money which we asked for we would finish you today.” They took Mahesh away from the sight and ken of the residents of that area. Thereafter, Mahesh was not seen alive by his kith and kin or his friends.

On the same night Mohd. Sayeed (PW5) went to Bow Bazar Police Station and lodged a complaint regarding the abduction of Mahesh. An FIR was registered on the strength of the said complaint. On the next morning PW-9 Anushila Devi (sister of Mahesh) told her nephew Pawan Kumar(PW-29) about the abduction of Mahesh. Sometime later, Pawan Kumar learned that his uncle Mahesh was admitted in Islamia Hospital. So he rushed to that hospital and made inquiries and came across the mangled body of his uncle lying in the hospital with his head tonsured.

PW-3 (Dr. Debabrata Chaudhary) a Reader in Forensic Medicine conducted post-mortem examination on the dead body of Mahesh and expressed his opinion that Mahesh was murdered. Subsequently, all the accused were arrested at different times. Some articles were recovered on the strength of the statements elicited from the accused. After conclusion of the investigation final report was laid against the seven accused. The case as against the 7th accused Sajid Ali was split up due to some reasons and hence the trial proceeded as against the remaining accused.

There is abundant evidence for showing that Mahesh was abducted by the accused on the night in question. It is unnecessary to dwell upon that aspect in this appeal, particularly since the trial court and the High Court have held that issue in unison and since no serious attempt was made before us for disrupting that finding. Sri P.S.

Misra, learned Senior Counsel contended that there would only be a case of abduction simplicitor, even assuming that the above position stands unassailable, but such abduction by itself is not punishable by any provision of the Penal Code. We are not inclined to consider the said contention in an academic perspective now, for, prosecution in this case has put forward a case of abduction for the purpose of committing murder. It was that case which was found against the accused by the trial court which finding remained undisrupted by the High Court.

Abduction takes place when a person is compelled by force (or such person is induced by any deceitful means) to go from any place. In this case Mahesh was dragged away by the accused from two places, first at Chittaranjan Avenue and when he escaped from the grip of the abductors and perched himself in a hide out selected by him at Giri Babu Lane, from there also he was hauled out.

Section 364 IPC says, whoever abducts any person “in order that such person may be murdered or disposed of as to be put in danger of being murdered” he commits the offence punishable under the Section. So the important task of the prosecution was to demonstrate that abduction of Mahesh was for murdering him. Even if the murder did not take place, the offence would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim, Section 364 IPC would not be attracted, though in such a case the court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed.

If the words attributed to the abductors can be believed we have no doubt that the abduction was done for the purpose of finishing him off. Knowing this position well, Sri P.S. Misra, learned Senior Counsel made a frontal criticism on the aforesaid evidence and contended that it is easy for interested witnesses to put such words in the mouth of the accused in order to aggravate the dimension of the offence. No doubt, witnesses can do so. But the question here is whether the aforesaid version of those witnesses was a concoction to embroil the abductors into the cobweb of a serious offence like Section 364 IPC. The reliability of that part of the evidence can be tested from different angles.

First is, even in the FIR PW-5 had quoted those words as spoken to by A-1. It must be noted that when FIR was given PW-5 had no reason to believe that Mahesh was not alive. If Mahesh had come back alive it is doubtful whether police would have seriously followed up the FIR. Next is, the temper which the assailants exhibited in the house of the deceased’s sister (when she was the sole inmate present therein), is broadly indicative of the truculence of the intruders that they went there with some definite purpose.

Mahesh was once caught by them on that night itself by PW-4 and then he was badly handled by them. If their intention was only to inflict some blows on the victim they would have stopped with what they did to him at that stage. But when Mahesh struggled and extricated himself from their clutches and escaped to another place at Giri Babu Lane these accused did not stop and they persisted in prowling for their prey and succeeded in tracing him out from that different area and hauled him out violently. Such repeated chase for Mahesh could, in all probabilities, be for his blood. Thus, all the broad features of this case eloquently support the version of the witnesses to conclude that the words attributed to the accused were really uttered by them.

For the aforesaid reasons, we have no difficulty to conclude that all the accused abducted Mahesh in order to murder him.

Now we have to consider the more serious aspect whether Mahesh was murdered by the abductors. On this aspect Sri P.S. Misra led his most vocal contention that the identity of the corpus delicti has not been established in this case. In other words, the contention is that the prosecution failed to establish that the dead body on which PW-30 (Dr. Debabrata Choudhury) conducted the autopsy could not have been that of Mahesh.

Learned counsel highlighted two seeming inconsistencies in the evidence to bolster up his contention on the above score. First is that PW-8 (Dr. Adhikari) who saw the dead body first estimated the age as 40, whereas Mahesh was only 29 according to his own kith and kin.

Second is that Dr. Adhikari had noted that the penis of the dead body had undergone “religious circumcision”.

The argument advanced by Sri P.S. Misra, learned senior counsel on the above material appeared, at the first blush, formidable. But on a closer scrutiny the said contention turned out to be very feeble. It must be pointed out that the doctor who conducted post-mortem examination (PW-30 Dr. Debabrata Choudhury) did not find any evidence of such circumcision on the dead body. That doctor is a specialist in Forensic Medicine and was a senior person. On the other hand, PW-28 (Dr. Adhikari) was only a stripling in the profession who had just completed his internship after his graduation. He said in his evidence that when he examined the patient he found “the glands penis exposed;

foreskin was rolled back; thus it appeared to be a case of early circumcision”. We do not think that such a slipshod observation regarding such a vitally important identification mark can be taken as a seriously observed feature, particularly when PW-30, a senior doctor, did not notice any such thing. Similarly, the age estimated by this novice medical practitioner without conducting any medical tests in that regard is hardly sufficient to conclude that the dead body was that of a person aged 40. Even otherwise the approximation of the age made by looking at the dead body is not enough to offset the age spoken to by the kith and kin of the deceased.

On the other side, there is overwhelming evidence to show that the autopsy conducted on the dead body by PW-30 was that of Mahesh. We find little scope even to doubt the possibility of some other dead body being mistakenly treated as that of the deceased while conducting the post- mortem examination. PW-9 (Anushila Devi) sister of Mahesh, said that she saw the dead body of Mahesh before it was cremated and she had absolutely no doubt that it was her brother’s.

PW-29 (Pawan Kumar Agarwal) a nephew of Mahesh went to Islamia Hospital and it was he who first identified the dead body of his uncle. PW-4 (Abdul Aziz), PW-5 (Mohd. Sayeed), PW.6 (Mohd. Idris) and PW-11 (Mohd. Afjal) saw the same dead body and they had no doubt at all that it was that of Mahesh.

The post-mortem report made by PW-30 (Dr. Debabrata Choudhury) shows that the victim was murdered. He noticed as many as 45 injuries on the dead body which included fracture of 5 ribs (2 to 6 ) on he left side towards sternal end, fracture of some of he fingers and extravasaion of blood on he night side of occipital region and also on he situs of the rib fractures. The remaining injuries included a few lacerated wounds, contustions and aberrations. There was just one minor incised wound on he left pinna. The right lung was congested. The doctor opined that death of that deceased had resulted from multiple injuries and injuries of vital organs and I was homicidal in naure.

The trial court made a fallacious conclusion regarding the death of the deceased on the premise that the public prosecutor did not elicit from the doctor as to whether the injuries were sufficient in the ordinary course of nature to cause death. The Sessions Judge concluded thus on the said issue: “There being no evidence on record to show that the injuries were sufficient in the ordinary course of nature to cause death, it cannot be said that the injuries noticed by the autopsy surgeon (PW-30) were responsible for causing the death of the deceased Mahesh.” No doubt it would have been of advantage to the court if the public prosecutor had put the said question to the doctor when he was examined. But mere omission to put that question is not enough for the court to reach a wrong conclusion. Though not an expert as PW-30, the Sessions Judge himself would have been an experienced judicial officer. Looking at the injuries he himself could have deduced whether those injuries were sufficient in the ordinary course of nature to cause death. No sensible man with some idea regarding the features of homicidal cases would come to a different conclusion from the injuries indicated above, the details of which have been stated by the doctor (PW-30) in his evidence.

We have no doubt that homicidal death of Mahesh had happened on the same night of his abduction. Now we have to deal with another crucial issue. Having found that Mahesh was abducted by the accused in order to murder him and he was in fact really murdered very soon thereafter can the accused escape from the penal consequences of such murder.

The trial court has stated on the said crucial issue thus:

“From the discussions made by me in the earlier part of the judgement it would appear that the accused persons had forcibly taken away the deceased Mahesh from the premises at 29/2/2A, Giri Babu Lane, Calcutta. There is no iota of evidence to show that the deceased Mahesh was in the custody of the accused persons along from 2.30 A.M. to 5.45 A.M.

of 5.11.86…………………There is no evidence worth the name to show that the accused persons had carried the dead body of Mahesh to Islamia Hospital and then abandoned it at the Emergency Department.” The High Court unfortunately did not deal with this aspect at all. Learned judges made scathing criticism on the flaws incurred in the investigation and without any reference to the evidence confirmed the conviction passed by the trial court.

Before we consider the said crucial aspect we have to point out another important circumstance. Sri K.T.S.

Tulsi, learned counsel who argued for the State highlighted the said circumstance that when A-1 Omar was interrogated by the Investigating Officer(PW-34) on 12.11.1986 he told the officer that “I have kept it (a full sleeve bush shirt) underneath the mattress on the ground in my club room”.

Pursuant to the said statement the shirt was recovered therefrom. It is marked as Ext.XV in this case. It is now in a torn condition. The statement attributed to A.1 Omar, and extracted above would fall within the purview of Section 27 of the Evidence Act. If it is believable, it would show that the said shirt was concealed by the said accused. We do not find any reason to disbelieve the evidence of the investigating officer regarding recovery of Ext.XV – shirt.

There are two significant features relating to the said shirt. One is that PW-5 said that he supplied a shirt to Mahesh on the same night when he found his wearing apparels shabby and torn. PW-5 said that when Mahesh was abducted from his room he was wearing that shirt and PW-5 identified Ext.XV as the said bush shirt. No explanation whatsoever was offered by A-1 Omar regarding Ext.XV (bush shirt) except a bare denial regarding it. We have no difficulty to believe the evidence of PW-34 on that score.

It goes a long way in focussing at the first accused Omar for the murder of Mahesh.

The other feature has been highlighted by Sri K.T.S. Tulsi that the bush shirt was subjected to serological examination at the Forensic Sciences Laboratory and it was found stained with human blood (vide Ext.40 series). Sri Harsh Kumar Puri, learned counsel for the appellants in one of the appeals filed by the convicted persons, pointed out in his written submissions that the aforesaid circumstance (FSL test result on the shirt) was not put to the accused when they were questioned by the Sessions Judge under Section 313 of the Code of Criminal Procedure. When we scrutinised the records we noticed that no question was put to the accused on that score. Consequently we are disabled from using that feature on the shirt as a circumstance against the accused.

Even barring that, the following circumstances have now been well set against the accused: (1) Mahesh was abducted around 2.30 A.M. by the abductors proclaiming that he would be finished off. (2) The abductors took Mahesh out of the sight of the witnesses. He was then wearing a bush shirt Ext.XV. (3) Within a couple of hours the murdered body of Mahesh was found in Islamia Hospital without a shirt. (4) The bush shirt which Mahesh was wearing at the time of abduction was concealed by A-1 Omar.

The abductors have not given any explanation as to what happened to Mahesh after he was abducted by them. But the learned Sessions Judge after referring to the law on circumstantial evidence concluded thus: “On a careful analysis and appreciation of the evidence I think that there is a missing link in the chain of events after the deceased was last seen together with the accused persons and the discovery of the dead body of the deceased at Islamia Hospital. Therefore, the conclusion seems irresistible that the prosecution has failed to establish the charge of murder against the accused persons beyond any reasonable doubt.” The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty.

In this case, when prosecution succeeded in establishing the afore narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the court what else happened to Mahesh at least until he was in their custody.

During arguments we put a question to learned senior counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned senior counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise.

In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.

Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambu Nath Mehra vs. The State of Ajmer [1956] INSC 17; (1956 SCR 199) the learned Judge has stated the legal principle thus: “This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ‘especially’ stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.” In the present case, the facts which prosecution proved including the proclaimed intention of the accused, when considered in the light of the proximity of time within which the victim sustained fatal injuries and the proximity of the place within which the dead body was found are enough to draw an inference that victim’s death was caused by the same abductors. If any deviation from the aforesaid course would have been factually correct only the abductors would know about it, because such deviation would have been especially within their knowledge. As they refused to state such facts the inference would stand undisturbed.

The Division Bench of the High Court instead of dealing with the circumstances of the case and issues involved made only some general comments and after castigating the investigating officers in severe language reached the final part of its judgment upholding the conviction under Section 364/34 IPC and reduced the sentence to the period which the convict had already undergone. The Division Bench used unkind remarks against the investigating officer saying “investigation of the case was perfunctory and suffered from serious lacuna and irregularity”. Learned Judges of the Division Bench did not make any reference to any particular omission or lacuna in the investigation.

Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case. Before an investigating officer is imputed with castigating remarks the courts should not overlook the fact that usually such an officer is not heard in respect of such remarks made against them. In our view the court need make such deprecatory remarks only when it is absolutely necessary in a particular case, and that too by keeping in mind the broad realities indicated above.

In the present case we have not come across any such serious flaw in the investigation which had affected the case or which would have impaired the core of the prosecution case justifying or warranting the pejorative remarks made by the Division Bench of the High Court against the investigating officers. In the result, we allow the appeal filed by the State and dismiss the appeals filed by the convicted persons. While maintaining the conviction of the offence under Section 364/34 IPC and restoring the sentence passed by the trial court on the accused we also convict the six appellants/accused of the offence under Section 302 read with Section 34 of IPC and impose a sentence of imprisonment for life on each of them. The sentences under all counts will run concurrently. We direct the Sessions Judge, Calcutta City, to take immediate steps for putting the convicted persons back in jail for undergoing the remaining portions of the sentences imposed by this judgement.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 719 1995

N. NARSINGA RAO …PETITIONER
Vs.
STATE OF ANDHRA PRADESH …RESPONDENT

DATE OF JUDGMENT: 12/12/2000
BENCH: U.C.Banerjee, R.P.Sethi

J U D G M E N T

THOMAS, J.

Can a legal presumption be based on a factual presumption? The latter is discretionary whereas the former is compulsory. Such a question arose in this appeal and in view of the importance of the issue a two-Judge Bench has referred this case to be heard by a larger bench. The legal presumption envisaged in Section 20 of the Prevention of Corruption Act 1988 (for short the Act) is that on proof of certain fact the court shall presume certain other fact. When there is no direct evidence for establishing the primary fact the court has to depend upon the process of inference drawn from other facts to reach the said primary fact. The crux of the question involved, therefore, is whether an inference thus made could be used as a premise for the compulsory presumption envisaged in Section 20 of the Act.

The aforesaid question arose from the following assortment of facts. Appellant was manager of a Milk@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Chilling Centre attached to Andhra Pradesh Dairy Development Co-operative Federation. He is alleged to have received bribe money of Rs.500/- from a milk-transporting contractor (PW1-Satya Prasad). He was caught red handed on 20.4.1989 in a trap arranged by the officials of the Anti Corruption Bureau (ACB). They charge-sheeted him before a Special Court for offences under Sections 7 and 13(2) read with Section 13(1)(d) of the Act. After trial the Special Judge convicted him and sentenced him to rigorous imprisonment for two years and a fine of Rs.2000/- under each of the above counts. The High Court of Andhra Pradesh confirmed the conviction but reduced the sentence of imprisonment to a period of one year. This appeal is in challenge of the said conviction and sentence.

A summary of the allegations made against the appellant are thess: PW1-Satya Prasad was to get some amount from Andhra Pradesh Dairy Development Corporation for transporting milk to or from the Milk Chilling Centre at Luxettipet (Adilabad district). He approached the appellant for taking prompt steps so as to enable him to get the money disbursed. But appellant demanded Rs.500/- for sending the recommendation in favour of payment of the amount due to PW1. As the appellant persisted with his demand PW1 yielded to the same, but before handing over the money to the appellant PW1 lodged a complaint (Ex.P2) with the DSP of Anti Corruption Bureau. On the basis of the said complaint PW7 (DSP) registered Ex.P18 FIR and then made all arrangements for a trap to catch the corrupt public servant red handed.

On 24.4.1984 PW1 brought the currency notes to the office of the ACB for making up the demanded bribe amount.

The said currency notes were treated with phenolphthalein powder by or at the direction of PW7 as preparation for the trap. PW1 and the already arranged witness PW2 together went to the house of the appellant by about noon. When appellant asked whether the amount was brought PW1 handed over the phenolphthalein smeared currency notes to the appellant. He accepted the amount and put the currency notes in his pocket. Thereupon, a pre-scheduled signal was transmitted to the members of the ACB team who were waiting outside. They suddenly rushed to the place where the appellant was then standing, caught the appellant red-handed and the tainted currency notes were recovered from his pocket. All the usual follow up steps were thereafter adopted by the ACB team and on completion of the investigation the case was charge- sheeted against the appellant.

It took four years thereafter for the Special Judge to commence evidence taking for the prosecution. The said long interval, perhaps, helped the appellant as is reflected from the fact that PW1 and PW2 made a volte-face in the trial court and they denied having paid any bribery to the appellant and also denied that appellant demanded the bribe amount. PW1 said, for the first time, that he acted at the behest of one Dr. Krishna Rao and went to the office of the appellant and did everything as directed by the said Krishna Rao. Both the witnesses were declared hostile by the Public Prosecutor and both were cross-examined in detail. After examining the remaining witnesses for prosecution the appellant was called upon to answer questions put to him under Section 313 of the Code of Criminal Procedure (for short the Code). He then submitted a written statement in which he said that Dr. Krishna Rao bore grudge against him and that person orchestrated this false trap against him by employing PW1 and PW2. According to the appellant, the tainted currency notes were forcibly stuffed into his pocket. He examined two witnesses on the defence side and both of them said that on the dates when the alleged demand was made by the appellant he was on tour at a different place.

Both the trial court and the High Court disbelieved the defence evidence in toto and found that PW1 and PW2 were won over by the appellant and that is why they turned against their own version recorded by the investigating officer and subsequently by a magistrate under Section 164 of the Code. The Special Judge ordered those two witnesses to be prosecuted for perjury and the said course suggested by the trial judge found approval from the High Court also.

In the appeal the High Court dealt with the contention that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demanded bribery and that the same was paid to him. Learned single judge of the High Court observed thus on that aspect: It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so when the defence theory put forth is not accepted.

Mr. L. Nageswara Rao, learned counsel for the appellant, adopted a twin contention. First is that the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ presumption under Section 20 of the Act could be drawn only when the prosecution succeeded in establishing with direct evidence that the delinquent public servant accepted or obtained gratification. That premise cannot depend on an inference for affording foundation for the legal presumption envisaged in Section 20 of the Act, according to the learned counsel. The second limb of his contention is that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification.

Prosecution has a further duty to prove that what was paid amounted to gratification, contended the counsel.

In support of the first contention, learned counsel relied on the decision of a two judge bench of this court in Sita Ram vs. State of Rajasthan {1975 (2) SCC 227}. It was held by the bench that on mere recovery of certain money from the person of an accused without the proof of its payment by or on behalf of some person to whom official favour was to be shown the presumption cannot arise.

The said observation was made in the background of a finding made by the High Court in that case that the evidence of the witnesses was not reliable and particularly because so many jerks and jolts seem to have been given to the prosecution case by contradictory and hostile statements of the witnesses that a good part of it had to be rejected by the High Court. That decision and the observation could thus confine to the facts of that case, and no legal principle for future application could be discerned therefrom.

Learned counsel then relied on another decision of a two judge bench of this court in Suraj Mal vs. State (Delhi Administration) {1979 (2) SCC 725} wherein the bench observed that in our opinion, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In that case also the said finding depended upon the veracity of the testimony of the witnesses. But the contention raised by the learned counsel in this case on the point convassed by him cannot find any support from the said decision either.

While adverting to the first contention of the learned counsel we may reproduce Section 20(1) of the Act. [That sub- section is virtually the same as Section 4(1) of the predecessor Act of 1947]. 20(1) Presumption where public servant accepts gratification other than legal remuneration.

-(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. Before proceeding further, we may point out that the expressions may presume and shall presume are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as factual presumptions or discretionary presumptions and those falling under the latter as legal presumptions or compulsory presumptions.

When the expression shall be presumed is employed in Section 20(1) of the Act it must have the same import of compulsion.

When the sub-section deals with legal presumption it is to be understood as in terrorum i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied.

The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. The word proof need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word proved in the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists.

Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins vs. Powells Tillery Steam Coal Company, Ltd. [1911 (1) K.B. 988] observed like this: Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion”.

The said observation has stood the test of time and@@ IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in Law of Evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled. For the purpose of reaching one conclusion the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani vs. State of Maharashtra [1998 (7) SCC 337]. A presumption can be drawn only from facts – and not from other presumptions by a process of probable and logical reasoning. Illustration (a) to Section 114 of the Evidence Act says that the court may presume that a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. That illustration can profitably be used in the present context as well when prosecution brought reliable materials that appellants pocket contained phenolphthalein smeared currency notes for Rs.500/- when he was searched by PW-7 DSP of the Anti Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else because there is a possibility of somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the court to draw a factual presumption that appellant had willingly received the currency notes.

PW-7 DSP said that PW-1 approached him on the previous day and lodged Ext.P-2 complaint stating that appellant was persistently demanding Rs.500/- from him. The currency notes were actually prepared by PW-7 by smearing them with phenolphthalein powder. When appellant was caught red handed with those currency notes he never demurred to PW-7 that those notes were not received by him. In fact, the story that such currency notes were stuffed into his pocket was concocted by the appellant only after lapse of a period of 4 years and that too when appellant faced the trial in the court. From those proved facts the court can legitimately draw a presumption that appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that appellant received the said a mount. In Raghubir Singh vs. State of Haryana [1974] INSC 76; [1974 (4) SCC 560] V.R. Krishna Iyer, J, speaking for a three Judge Bench, observed that the very fact of an Assistant Station Master being in possession of the marked currency notes against an allegation that he demanded and received that amount is res ipsa loquitur.

In this context the decision of a two Judge Bench of this Court (R.S. Sarkaria and O. Chinnappa Reddy, JJ) in Hazari Lal vs. Delhi (Delhi Administration) [1980] INSC 28; [1980 (2) SCC 390] can usefully be referred to. A police constable was convicted under Section 5(2) of the Prevention of Corruption Act, 1947, on the allegation that he demanded and received Rs.60/- from one Sriram who was examined as PW-3 in that case. In the trial court PW-3 resiled from his previous statement and was declared hostile by the prosecution. The official witnesses including PW-8 have spoken to the prosecution version. The court found that phenolphthalein smeared currency notes were recovered from the pocket of the police constable. A contention was raised in the said case that in the absence of direct evidence to show that the police constable demanded or accepted bribery no presumption under Section 4 of the Act of 1947 could be drawn merely on the strength of recovery of the marked currency notes from the said police constable. Dealing with the said contention Chinnappa Reddy, J. (who spoke for the two Judge Bench) observed as follows: It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from PW3. Under Section 114 of the Evidence Act the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case.

One of the illustrations to Section 114 of the Evidence Act is that the court may presume that a person who is in possession of the stolen goods soon after the theft, is either the chief or has received the goods knowing them to be stolen, unless he can account for his possession. So too, in the f acts and circumstances of the present case the court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW3, who a few minutes earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the money from PW3, the presumption under Section 4(1) of the Prevention of Corruption Act is immediately attracted. The presumption is of course rebuttable but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the courts below. The aforesaid observation is in consonance with the line of approach which we have adopted now. We may say with great respect to the learned Judges of the two Judge Bench that the legal principle on this aspect has been correctly propounded therein.

Regarding the second limb of the contention advanced by Shri Nageshwar Rao, learned counsel for the appellant (that it was not gratification which the appellant has received) we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. [Vide Madhukar Bhaskarrao Joshi vs. State of Maharashtra, JT 2000 (supple.2) SC 458]. The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel: The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted as motive or reward for doing or forbearing to do any official act. So the word gratification need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like gratification or any valuable thing. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for the official act, the word gratification must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.

We, therefore, agree with the finding of the trial court as well as the High Court that prosecution has proved that appellant has received gratification from PW1. In such a situation the court is under a legal compulsion to draw the legal presumption that such gratification was accepted as a reward for doing the public duty. Of course, the appellant made a serious endeavour to rebut the said presumption through two modes. One is to make PW1 and PW2 speak to the version of the appellant and the other is by examining two witnesses on the defence side. True PW1 and PW2 obliged the appellant. The two defence witnesses gave evidence to the effect that the appellant was not present at the station on the date when the alleged demand was made by PW1. But the trial court and the High Court have held their evidence unreliable and such a finding is supported by sound and formidable reasoning. The concurrent finding made by the two courts does not require any interference by this Court.

In the result we dismiss this appeal.

The post N. Narsinga Rao Vs. State of Andhra Pradesh appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA

PALANIVELAYUTHAM PILLAI & ORS. …PETITIONER
Vs.
RAMACHANDRAN & ORS. …RESPONDENT

DATE OF JUDGMENT: 09/05/2000
BENCH: U.C.Banerjee, S.B.Majumdar
JUDGMENT

S.B.Majmudar, J

This appeal, on grant of special leave, is moved by Defendant nos. 1-4 in Original Suit no.341 of 1968 in the Court of the Subordinate Judge of Madurai in the State of Tamilnadu. The said suit was filed by Respondent nos. 2 & 3 herein as plaintiffs against number of other defendants with which we are not concerned in this appeal. The said suit was filed for partition and separate possession of the plaintiffs undivided share in the suit properties scheduled A, B & C. It was contended that the plaintiffs and the 7th defendant were the sons of one Sivasankaran Pillai through his second wife, while the Defendant nos. 1,5 & 6 were the sons of the said Sivasankaran Pillai through his first wife. The 8th defendant was the second wife of Sivasankaran Pillai. Sivasankaran Pillai died on 27th January, 1956. According to the plaintiffs, the suit properties were the ancestral properties of the said Sivasankaran Pillai who inherited the same. That the said properties remained as joint family properties and the plaintiff and Defendant nos. 1,5 & 6 were continuing as undivided members of the joint family even after the death of Sivasankaran Pillai.

The contesting Defendant nos. 1, 5 & 6 resisted the suit on various grounds. In the present proceedings, the dispute centers around schedule C properties only. Hence we may not dilate on other properties and the nature of dispute between the contesting defendants qua them. So far as schedule C properties were concerned, the contention of the contesting defendants was that they were gifted by the original owner one Palanivelayutham Pillai by a Gift Deed dated 18th February, 1907 in favour of Madurai Devasthanam Tirupparankundram Andavar Subramaniaswamy and consequently, they were not liable to be partitioned amongst the descendants of said settlor. It was further contended that under the said Gift Deed the right of management of the aforesaid endowed properties was entrusted, on the death of the settlor, to his second wife who had to continue charitable performances for the deity along with her heirs and had to act as a trustee qua these properties. That the said designated trustee, the second wife of the settlor Pitchammal alias Avudai Ammal, after the death of the settlor, had continued to manage the said properties as a trustee. That she had executed a General Power of Attorney on 3rd August, 1922 in favour of R. Sivasankaran Pillai whose properties were sought to be got partitioned in the present suit. That, amongst others, the said Sivasankaran Pillai was entrusted with the task to manage and maintain schedule C properties and to perform the charitable activities as per the document executed by the deceased husband of Pitchammal. That by a Will dated 27th January, 1924, the said Pitchammal also appointed the very same Sivasankaran Pillai and his wife Subbammal who pre-deceased Sivasankaran Pillai, as successor trustees after her death.

He alone, therefore, remained the repository of the right of management of schedule C properties. That the said Pitchammal died on 24th June, 1950 and thereafter Sivasankaran Pillai continued to manage the schedule C properties pursuant to the Will dated 27th January, 1924.

That the said Sivasankaran Pillai, by his Will (Ex.B-487) dated 1st July, 1955, bequeath the rights of management and trusteeship to Defendant no.9 – K.Sethuramalingam Pillai, his son-in-law, so far as schedule C properties were concerned. While on the same day he executed another Will qua his other properties in favour of Defendant nos. 1, 5 &

6. The plaintiffs contention was that the aforesaid two Wills of Sivasankaran Pillai were unauthorised, illegal and inoperative at law. Earlier, the present appellants resisted the said suit and contended that the Wills were legal and valid but subsequently by an amended written statement Defendant nos. 1,5 & 6 parted company of Defendant no.9 and submitted that Sivasankaran Pillais Will (Ex.B-487) dated 1st July, 1955 in favour of Defendant no.9 entrusting the management of schedule C properties to him after testators death was not legally proved and, in any case, was inoperative at law as Sivasankaran Pillai could not Will away the right of management of schedule C properties to a stranger like Defendant no.9, who was his son-in-law, bypassing his own sons who were his heirs.

The learned Trial Judge, after recording evidence offered by the contesting parties, came to the conclusion that so far as schedule C properties were concerned, they could not be partitioned being kattalai properties i.e.

consisting of special grant for religious services in a temple. The learned Trial Judge, however, held that the Will of 1st July, 1955 (Ex. B-487) entrusting the management of the aforesaid schedule C properties to his son-in-law, Defendant no.9, bypassing his own sons was duly proved and was perfectly legal and valid. The aforesaid decision was rendered by the learned Trial Judge on 30th November, 1976.

Being aggrieved by the said decision of the learned Trial Judge, the present appellants along with Defendant no.5 filed first Appeal no. 1058 of 1977 in the High Court of Judicature at Madras. The appeal was confined to schedule C properties and two contentions were canvassed for consideration of the High Court. They are : 1) Whether the Will (Ex. B-487) dated 1st July, 1955 said to have been executed by Sivasankaran Pillai favouring Defendant no. 9 was legal and valid and was duly proved. 2) Whether under the aforesaid Will Sivasankaran Pillai was authorised to entrust trusteeship and management of schedule C properties, i.e. kattalai properties, to a stranger like Defendant no.9, who was his son-in-law, bypassing his own sons. The Division Bench of the High Court, by its impugned judgment dated 12th July, 1984, negated both these contentions and upheld the decision of the Trial Court on these issues. That is how the appellants-original Defendant nos. 1-4 have landed in this Court in the present proceedings by obtaining special leave to appeal under Article 136 of the Constitution of India.

RIVAL CONTENTIONS: Learned counsel for the appellants Shri Sampath in support of the appeal vehemently contended that Sivasankaran Pillai, the father of Appellant no.1 was not having any sound disposing state of mind on the date on which he is said to have executed the Will (Ex. B-487) i.e.

on 1st July, 1955. That he was almost invalid and was not having enough mental poise and that the Will was clouded by many suspicious circumstances. He further submitted that, in any case, the Will was not legally proved as attesting witnesses to the said Will were not examined in proof thereof. He alternatively contended that, in any case, the Will could not be treated as a valid legal document under which the right of management of schedule C kattalai properties could be entrusted to a stranger to the family like Defendant no.9, who was his son-in-law, bypassing the appellants, who were his straight lineal descendants. In support of this alternative contention, it was submitted that the original endowment of schedule C properties, pursuant to the Gift Deed of Palanivelayutham Pillai dated 18th February, 1907, created a life interest or widows estate in favour of his second wife Pitchammal who had to carry on religious and charitable performances along with her heirs after the death of the donor; and as Pitchammal had no issues or her legal heirs, on the death of Pitchammal, the right of management would revert to the reversioners being the lineal descendants of original settlor – Palanivelayutham Pillai. That Pitchammal died on 24th June, 1950. Thereafter, Sivasankaran Pillai, as a reversioner, could continue in management of the Kattalai properties but he, in his turn, could not have willed away the said right of management in favour of Defendant no.9, who was a stranger to the family. That right of management would legally enure in favour of Sivasankaran Pillais lineal descendants – like appellants and Defendant no.5 and consequently the Will (Ex.B-487) of Sivasankaran Pillai was legally inoperative even on this ground. It was also contended by Shri Sampath that pending the suit, even Defendant no.9 has died, and his heir – Defendant no.10 – his widowed wife, who is the sister of Appellant no.1, was bequeathed with the right of management of schedule C properties by Defendant no.9 by his own Will in her favour and that the said Will would fall through if it is held that the Will (Ex.B-487) dated 1st July, 1955 of Sivasankaran Pillai in favour of Defendant no.9 itself was inoperative in law.

It was also contended that by an Order dated 13th September, 1945 of the Board of Commissioner for Hindu Religious Endowments, Madras, a scheme of administration was settled under Section 57 of the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927) for administration of the kattalai known as Palani Velayudham Pillais specific endowments for Uchikalam kamalapatram service and feeding on Karthigai Monday for Sri Subramaniaswamy Temple, Tirupparankundram, Madurai. That the said order was passed at the time when Sivasankaran Pillai was managing the properties under the General Power of Attorney dated 3rd August, 1922 executed by Pitchammal in his favour. Therefore, the kattalai trustee had to be governed by the said scheme of administration and that Defendant no.9 who was managing the schedule C properties, had not complied with the requirements of the said scheme.

Learned senior counsel for the contesting respondents – Defendant no.9 and Defendant no.10, being the heir of Defendant no.9 (since deceased), on the other hand, contended that the decision rendered by the High Court on the aforesaid points is quite justified and calls for no interference. That the testamentary capacity of deceased Sivasankaran Pillai has been found to be well sustained on record. That there were no suspicious circumstances surrounding the Will; that the Will was legally proved as the scribe was also an attesting witness and was examined as such. Consequently, the Will was legally proved; that mere presence of Defendant no.9 at the time of execution of the Will could not be treated to be a suspicious circumstance when, on the same day, the testator executed two Wills and got them registered. One Will (Ex. B-487) was in favour of Defendant no.9 and another Will (Ex. B-488) was executed in favour of contesting defendants themselves, the appellants herein, and Defendant nos. 5 & 6 so far as his personal properties were concerned. On the legality of the Will, it was submitted that by the Gift Deed (Ex. B- 506) the settlor appointed his second wife Pitchammal as manager and trustee qua schedule C properties, entrusting her with the duties of carrying on charitable performances indicated in the Gift Deed and though she had to carry on these performances along with her heirs, in the absence of her legal heirs, she became entrusted with absolute right of management and trusteeship and could not be treated as having widows estate or limited interest. Hence, there was no question of the said right of management and trusteeship devolving on the reversioners on her death. That she had every right to appoint her successor manager which she did by appointing Appellant no.1’s father – Sivasankaran Pillai by her Will dated 27th January, 1924 (Ex. B-26) which started operating on 24th June, 1950, when Pitchammal died.

That thereafter Sivasankaran Pillai performing the duties of management pursuant to his appointment by Pitchammal also had equal right to appoint another manager on his demise as per the impugned Will (Ex.B-487) dated 1st July, 1955 favouring Defendant no.9. That the settlor had not reserved the right of management to be confined to his own lineal descendants but had completely parted with the same in favour of his second wife Pitchammal pursuant to the Gift Deed (Ex. B-506) and consequently whatever Pitchammal did was binding not only on Sivasankaran Pillai but also to his successor manager as per his Will (Ex.B-487) dated 1st July, 1955. That there was no restriction on the right of Sivasankaran Pillai to appoint the manager of his choice on his demise so far as schedule C properties were concerned and that is exactly what he had done by the impugned Will (Ex. B-487) dated 1st July, 1955 and, therefore, the High Court was right in upholding the said Will in favour of Defendant no.9. Once that conclusion is reached, Defendant no.9, as a manager of these properties, was equally competent to entrust the said management on his demise to Defendant no.10 as his successor manager. So far as the Order dated 13th September, 1945 of the Board of Commissioner for Hindu Religious Endowments, Madras is concerned, it was submitted that no reliance was placed on the same during the trial and, therefore, the appellants cannot raise any contention in that behalf. However, Respondent no.8, Executive Officer appearing for the Devasthanam – originally joined as Defendant no.11 in the suit, submitted that the scheme settled by the Order dated 13th September, 1945 could not be enforced earlier because of the pendency of this litigation and the said scheme will be given effect in the light of the decision of this Court, whereunder the appropriate kattalai trustee will be ascertained and the said trustee will have to act under the supervision of the Executive Officer for the time being in force. In the light of the aforesaid rival contentions, the following points arise for our consideration : 1. Whether the Will (Ex. B-487) dated 1st July, 1955 said to have been executed by Sivasankaran Pillai in favour of Defendant no.9 was legally proved. 2. Whether the said Will was surrounded by suspicious circumstances and was required to be rejected. 3. Whether the aforesaid Will can be treated to be legal and valid in so far as it tried to entrust the management of kattalai properties in favour of a stranger to the family, Defendant no.9, bypassing the sons of Sivasankaran Pillai. 4. Even if the aforesaid points are decided against the appellants and in favour of Defendant nos. 9 & 10, whether the scheme of administration settled as per the Order dated 13th September, 1945 of the Board of Commissioner for Hindu Religious Endowments, Madras is required to be enforced against the kattalai trustee, now Defendant no.10, who is the legatee of the management rights as per the Will executed by Defendant no.9 in her favour.

We shall deal with these points seriatim. POINT NO.1: So far as the proof of Will (Ex. B-487) dated 1st July, 1955 is concerned, a mere look at the said Will shows that apart from two attesting witnesses S. Ramachandran and R.

Balakrishnan, T.K.Sankara Narayanan, who is the scribe of the Will, has also witnessed the same. The description of Sankara Narayanan mentions that it is written and witnessed by him and when he was examined in proof of the said Will before the Trial Court, it cannot be said that the attesting witnesses were not examined in proof of the said Will. The submission of learned counsel Shri Sampath appearing for the appellants to the effect that Sankara Narayanan is shown to be a witness in the other Will (Ex. B-488) dated 1st July, 1955 is now not shown to be a witness simpliciter so far as the disputed Will is concerned and, therefore, he should not be treated as an attesting witness to the latter Will, cannot be countenanced. It is difficult to appreciate this contention. If the Will (Ex. B-487) had shown Sankara Narayanan only as a scribe, Shri Sampath would have been right. But the Will shows that Sankara Narayanan ascribed his signature apart from describing himself as a scribe. It must, therefore, be held that the disputed Will was attested by three attesting witnesses out of which one Sankara Narayanan was examined in the Trial Court for proving the said Will. The Trial Court as well as the High Court were justified in taking the view that the Will (Ex. B-487) was duly executed. It has also to be kept in view that on the very same day the testator executed and got the Will registered along with the other Will (Ex. B-488) in favour of Defendant nos. 1,5 & 6. Point no.1 is, therefore, answered in the affirmative in favour of the contesting respondents and against the appellants.

POINT NO.2: So far as this point is concerned, it has to be kept in view that both the Trial Court as well as the High Court have concurrently held on facts that the deceased testator was in a sound disposing state of mind and was capable of executing the Will and that there were no suspicious circumstances surrounding the Will. Merely because Defendant no.9 was present at the time of execution of both the wills, it could not be said that it was a suspicious circumstance. It has also to be kept in view that on the very same day i.e on 1st July, 1955 the testator Sivasankaran Pillai executed two Wills, one – the disputed Will (Ex. B-487) in favour of Defendant no.9 so far as schedule C kattalai properties and their management were concerned. But simultaneously at the same sitting on the same day, he executed another Will (Ex. B-488) in favour of the appellants & Defendant nos. 5 & 6, his own sons so far as his personal properties were concerned. Both the Wills were got registered simultaneously. It is easy to visualise that if the Will in favour of appellants and Defendant nos.

5 & 6 executed by the testator on the very same day can be found to be legal and valid though held by the Trial Court to have not been acted upon, it cannot be held by any stretch of imagination that the same testator, who was in sound disposing state of mind, while executing a valid Will (Ex. B-488) in favour of Appellants and Defendant nos. 5 & 6 would loose his testamentary capacity while executing on the same day at the same time another disputed Will (Ex. B- 487) in favour of Defendant no.9. The appellants cannot be permitted to blow hot and cold at the same time. Of course, Shri Sampath, learned counsel for the appellants, submitted that he does not rely upon the Will (Ex. B-488) as it is not acted upon but that is neither here nor there. Even if the Will in favour of the appellants might not have been acted upon for reasons best known to them after the demise of the testator, that would not affect due execution of the said Will by the testator nor would it affect his testamentary capacity qua the disputed Will executed on the same day and got registered by the testator simultaneously with the Will (Ex. B-488) in favour of the appellants and Defendant nos. 5 & 6. Even though an attempt was made to show that the testator was unwell and confined to bed and the plaintiffs went to the extreme and submitted that testator was a lunatic, the evidence on record shows to the contrary. He might be old and suffering from illness but his testamentary capacity is not shown to be affected adversely in any manner when on the same day he executed two Wills and got them registered. The findings reached about testamentary capacity of the testator by the Trial Court and confirmed by the High Court are well sustained on evidence and cannot be said to be suffering from any patent error of law or being perverse which would call for our interference in appeal under Article 136 of the Constitution of India.

Reliance tried to be placed by learned counsel Shri Sampath for the appellants on the three decisions of this Court in Bhagwan Kaur w/o Bachan Singh v. Kartar Kaur w/o Bachan Singh & Ors., [1994] INSC 270; (1994) 5 SCC 135, H. Venkatachala Iyengar v.

B.N.Thimmajamma & Ors., AIR (46) 1959 SC 443 and Ramchandra Rambux v. Champabai & Ors., AIR (52) 1965 SC 354 also cannot be of any assistance to him as the fact situations which fell for consideration in the aforesaid decisions were entirely different and suspicious circumstances considered in these decisions are found to be totally absent, so far as the facts of the present case is concerned.

Mr. Sampath tried to highlight certain circumstances, which according to him, were highly suspicious. We may briefly refer to them. He submitted that under normal circumstances any reasonable person like the testator, would not disinherit his own children, i.e the appellant no.1 and his brothers nor would he prefer a total stranger as a sole legatee of schedule C properties. This contention is totally devoid of force. The reason is obvious. So far as schedule C properties were concerned, they were not personal properties of Sivashankaran Pillai. They were endowed properties belonging to the temple. Mere right of management was given to him by earlier manager Pitchammal and it is this right of management which was being entrusted by him to Defendant no.9, who was found to be a capable manager. So far as the personal properties are concerned, the testator executed another Will (Ex.B-488) on the same day in favour of his own children, including the appellants.

He had, therefore, not disinherited them qua his own personal properties. The second suspicious circumstance highlighted by Shri Sampath was to the effect that Defendant no.9, being beneficiary of the Will, had actively participated in its execution. That is neither here nor there. Even despite his active participation, Defendant no.9 saw to it that the testator bequeathed his personal properties in favour of his own sons, namely, the appellants and Defendant nos. 5 & 6.

It has also to be kept in view that Defendant no.9 was brother-in-law of Appellant no.1 and a trusted worldly wise person on whom the testator, his father-in-law, had full trust. He was not shown to be inimical to the appellants when the disputed Will was executed. In fact, he was looking after the interest of the entire family. Thus his presence proved to be beneficial not only to him but also to the appellants. The next circumstance pressed in service was that the testator was residing with Defendant no.9 in his house. This, to say the least, is not a suspicious circumstance but a relevant circumstance which would persuade the testator to entrust the management of the kattalai properties to Defendant no.9. The next circumstance tried to be highlighted by Shri Sampath was that the testator was seriously ill and had undergone abdominal operation and was unconscious and had no capacity to understand things. It is difficult to appreciate this contention. Even though the testator might be ill and might have undergone abdominal operation, he could not be said to be unconscious when he himself got the Will registered before the authorities when the registering officer remained present in the house of Defendant no.9 between 8 9 in the morning and ascertained the willingness and capacity of the testator in getting the Will executed and registered by the authority. Shri Sampath tried to submit that the scribe got the Will executed by the testator by exercising undue influence and coercion. This contention, to say the least, is not at all borne out from the evidence when the very same scribe became an attesting witness to the Will (Ex. B-488) in favour of appellants themselves and Defendant nos. 5 &

6. If he was out to pressurise the testator to disinherit the appellants and Defendant nos. 5 & 6, he would never have stood as an attesting witness to the Will (Ex. B-488) in favour of Defendant nos. 1, 5 & 6 on the very same day on which it was executed by the testator along with the disputed Will. Resultantly, point no. 2 is also answered against the appellants and in favour of the contesting respondents.

POINT NO.3: So far as this point is concerned, we have to trace the genesis and the nature of the management entrusted to Sivasankaran Pillai by the deceased Pitchammal.

The first document, in chronology, is the Gift Deed (Ex.B-506) dated 18th February, 1907. It recites that the donor Palani Velayutham Pillai was donating the properties in favour of Madurai Devasthanam Tirupparankumdram Andavar Subramania swamy. These properties were gifted to the temple for the purpose of performing poojas and Archanas to the deity daily at noon, for performing lotus archana in every karthigai month and for Bhojanas to Brahmins and others. The Gift Deed also recited that excluding the payment of government taxes the remaining income derived out from the under-mentioned properties had to be utilised for the aforesaid purpose by the management of the trustee and in case of death of the donor prior to the death of his second wife, she will continue the said charitable performances along with her heirs and after the amount spent for the said purpose, an amount of Rs.2/- per month had to be detained by them and she had to act as a trustee. In the event of any fault on the part of performing the said charitable performances, the Devasthanam was entitled to question the same. He also consented for transferring the patta as a trustee of the properties in the name of the deity. These recitals clearly indicate that the donor wanted the right of mangement of the donated properties to be entrusted to his second wife along with her heirs after the lifetime of the donor. It is obvious that the properties belong to the temple. A mere right of managing the properties, as a trustee, by collecting income therefrom and for utilising the same for performing the religious ceremonies and charitable performances as laid down in the Gift Deed was entrusted to his second wife along with her heirs. It is pertinent to note that this mere right of management as a trustee did not confer any proprietary right in the property donated to the temple. The only proprietary right was to collect an amount of Rs.2/- per month as remuneration for performing the duties of a trustee entrusted to his second wife along with her heirs. It is also necessary to note that this mere right of management as a trustee charged with the duty to perform religious and charitable performances was the kattalai grant to donors second wife along with her heirs. It is pertinent to note that the donor, who is the settlor, had not entrusted the right of management as successor trustees to any of his heirs or lineal descendants. He, on the contrary, chose to select his own second wife and her heirs for discharging this obligation. It is, therefore, not possible to agree with the contention of Shri Sampath, learned counsel for the appellants, that the aforesaid recitals in the Gift Deed conferred any life interest or widows estate to the donors second wife, after his demise. On the contrary, the right of management and to act as trustee for the same without any proprietary interest in the donated properties was only conferred on his second wife along with her heirs.

In this connection, we may usefully refer to the observations of learned author B.K.Mukherjea on The Hindu Law of Religious and Charitable Trusts – Fifth Edition by A.C. Sen, Eastern Law House in connection with Kattalai grants in South India. The learned speaker in one of his lectures reproduced in the aforesaid book at pages 198-200 observed as under:

XIV. KATTALAI GRANTS IN SOUTH INDIA 4.55. Kattalai or special grant.- Before I close this chapter one thing requires to be noticed and that is a special grant for religious services in a temple which is in vogue in Southern India and is known by the name of Kattalai. As Muttusami Aiyyar, J. explained in Vythilinga v. Somasundara, in ordinary parlance, the term Kattalai as applied to temple means endowments and signifies a special endowment for certain specific service or religious charity in the temple.

Ardajama Kattalai or endowment for midnight service is an instance of the former and Annadan Kattalai or an endowment for distributing food to the poor is an example of the latter. In this sense the word Kattalai is used in contradistinction to the endowment designed generally for the upkeep and maintenance of the temple. Persons who endow properties for kattalais are entitled to appoint special trustees to administer them, and the general trustees of the institution have no right to dispossess them. And if under the terms of the grant, the special trustee has to utilise the income for specified services in the temple, the general trustee has the right, as the person in charge generally of the temple, to require the special trustee to hand over the income to him. But the special trustee is, in respect of the management of the kattalai properties, under the same obligations as a trustee, and an alienation by him of those properties would be void, unless it is for necessity or benefit. In the case of some important temples, the sources of the income are classified into distinct endowments according to their importance. Each endowment is placed under a separate trustee and specific items of expenditure are assigned to it as legitimate charges to be paid therefrom. Each of such endowments is called also a Kattalai and the trustee who administers it is called the Kattlaigar or stanik of the particular Kattalai. The import of this expression was discussed in detail by Sesagiri Aiyyar, J. in Ambala Vana v Sree Minakshy.

According to him, this expression is used with reference to three different kinds of endowments. Properties may be endowed- (a) for the performance of pujas in the temple, or (b) for the performance of certain festivals in the temple, or (c) for the performance of Archanas to the deity in the name of the donors. (a) Ordinarily, the puja is not performed in the name of the donor, and consequently, supplementary grants are made by pious persons in order that the service should be more efficiently performed. Instances of this type of grant are to be found in the famous temple at Chidambaram, where almost all the necessary daily services are conducted by means of Kattalais endowed by pious donors. (b) It also happens that where lands for funds in respect of particular service or festival at temples are not sufficient for conducting them on the original scale, new donors come forward to supplement these funds. (c) For Archana, however, no supplementary grant by other donors is possible. It is intended solely for the spiritual benefit of the grantor and it is not the concern of third parties to help in his performance if the funds are for any reason not found sufficient. Whatever the exact nature of Kattalais may be-and that must depend upon the usages of particular temples-one fact ought to be remembered in this connection, and that is that when the grant is to the deity and the income of particular funds is earmarked for special services which are entrusted to special trustees, if there is a surplus which cannot be spent on these services, it would be a case for the application of the cy pres doctrine and the special trustee can, on no account, claim the surplus. This has been held by the Judicial Committee in an appeal from the Madras High Court.

These observations clearly indicate that the grantee of such special endowment derives his or her right of management from the appointment by the settlor and could not be treated to be having independent proprietary right in the subject matter of the grant.

Once this conclusion is reached, it becomes obvious that the right of management as a trustee which inhered in donors second wife – Pitchammal after his death could be independently exercised by her along with her heirs. Now it is not in dispute that she had no issues or lineal descendants. Therefore, the phrase along with her heirs on that score became redundant and she had every right to mange on her own the donated properties as a trustee. Even alternatively, as submitted by learned senior counsel for the contesting respondents, it could be held that her heirs may even include her testamentary heirs. In either way Pitchammal, the second wife of the settlor, had every right to select successor trustee in her place by her Will. That is precisely what she did by executing her Will (Ex.B-26) dated 27th January, 1924 in favour of Sivasankaran Pillai, father of appellant no.1. It is not in dispute that even prior to the said Will, the said Sivasankaran Pillai under the General Power of Attorney dated 3rd August, 1922 from Pitchammal, was managing the trust properties as her agent.

But on the death of Pitchammal on 24th June, 1950 the Will (Ex.B-26) became operative in his favour and he became the successor trustee and manager of these properties charged with the obligation to carry out the religious and charitable performances as directed in the Gift Deed of the settlor. It has also to be kept in view that the said entrustment of trusteeship rights by Pitchammal in favour of Sivasankaran Pillai by her Will (Ex.B-26) dated 27th January, 1924 is not in dispute between the parties.

However, Shri Sampath, learned counsel for the appellants, tried to put a gloss over this will by submitting that even otherwise Sivasankaran Pillai, the legatee under Pitchammals Will, was himself the lineal descendant of settlor Palanivelayutham Pillai and can be said to be the heir of Pitchammal. It is difficult to appreciate this contention. The Gift Deed of 18th February, 1907 nowhere mentioned, as noted earlier, that the donor wanted trusteeship and management of properties to go to his lineal heirs. That Sivasankaran Pillai got the right of management and trusteeship only because of the Will of Pitchammal who had every right to will away the said trusteeship in favour of anyone she liked unfettered by any restrictions found in the original Gift Deed conferring right of management to her for the first time.

In view of the aforesaid finding of ours, it is equally not possible for us to accept the contention of Shri Sampath that when Sivasankaran Pillai wanted to make Will in connection with the right of management of the temple properties, he ought to have and should have preferred only his own sons and not a stranger like Defendant no.9. In fact, that was the main contention of learned counsel for the appellants. He submitted that the Will (Ex.B-487) of Sivasankaran Pillai, favouring Defendant no.9 dated 1st July, 1955 was, in any case, unauthorised and illegal as the testator Sivasankaran Pillai could not have willed away the right of management of temple properties to Defendant no.9 who was not his lineal descendant but was a stranger to the family being, his son-in- law. This submission is totally devoid of any force. Sivasankaran Pillai, by his impugned Will (Ex.B-487) dated 1st July, 1955 in his turn selected an appropriate manager for the trust properties charged with the obligation of trusteeship to carry on the charitable performances. The said Will itself shows that he was acting as per the directions and demands of Pitchammal and because of his bad health he was unable to continue the said charitable performances and, therefore, he was bequeathing the said right in favour of Defendant no.9, his son in law.

It has to be kept in view that it was a mere right of management and not a proprietary right which inhered in the testator Sivasankaran Pillai pursuant to the earlier Will of Pitchammal in his favour. He, as a successor trustee and manager, had to select the best available person of his choice to act after his demise as trustee and manager of the temple properties with a view to continue the charitable performances as originally entrusted by donor in favour of his second wife Pitchammal and under whose directions he was acting during her lifetime and had to act under her Will after her demise. To recapitulate, as the original settlor had not reserved the right of management and trusteeship of these properties donated by him to the temple for his lineal descendants and, on the contrary, had handed over that right to his second wife and had further left the said management to her, along with her heir, such absolute right being conferred on her by the settlor could be well utilised by her in selecting a successor of her choice. That is precisely what was done by her by her Will of 3rd August, 1922 and in exercise of the same right conferred on Sivasankaran Pillai, he in his turn as her representative validly executed the impugned Will in favour of Defendant no.9. It cannot, therefore, be held that the Will (Ex.B-487) of 1st July, 1955 was in any way unauthorised or illegal. It has to be kept in view that Pitchammal herself was not appointed by her husband as a shebait of the properties. She had a mere right to manage the properties on which she had every right to bequeath to any person of her choice unfettered by any other restrictions in this connection. It is the very same unfettered right which got transmitted from her to Sivasankaran Pillai by her Will dated 27th January, 1924 and which further got transmitted by him in favour of Defendant no.9 by the impugned Will (Ex.B-487) dated 1st July, 1955. It is, therefore, not possible to agree with the contention of Shri Sampath, learned counsel for the appellants, that Sivasankaram Pillai was bound to entrust the management and trusteeship qua the temple properties to any of his sons and could not have selected a stranger like Defendant no.9. It has to be kept in view that mere right of management of trusteeship unfettered by any direction of the original settlor could be entrusted by Sivasankaran Pillai in his turn to any competent person of his choice, only for the limited purpose of management not backed up by any proprietary right in connection with the trust properties which, admittedly, belong to the deity.

Reliance placed by Shri Sampath, learned counsel for the appellants, in the case of Kalipada Chakraborti & Anr.

v. Sm. Palani Bala Devi and Ors. AIR (40) 1953 SC 125 cannot be of any assistance to him. In that case, B.K.Mukherjea, J. speaking for the three-Judge Bench observed in this connection about Shebaitship as under:

(b) Hindu Law Religious endowments Shebaitship.

Whatever might be said about the office of a trustee, which carries no beneficial interest with it, a shebaitship, combines in it both the elements of office and property. As the shebaiti interest is heritable and follows the line of inheritance from the founder, obviously, when the heir is a female, she must be deemed to have, what is known, as widows estate in the shebaiti interest. It is quite true that regarding the powers of alienation a female shebait is restricted in the same manner as the male shebait, but that is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself which exist irrespective of the fact whether the shebaitship vests in a male or a female heir.

It must be kept in view that in the light of the recitals in the Gift Deed of 18th February, 1907, as noted by us earlier, it cannot be said that the settlor had given any shebaitship rights to his second wife nor had he laid down any line of inheritance qua such shebaitship in his Gift Deed. It was a mere right of membership entrusted to his second wife with a further right given to her to execute the office of trusteeship along with her heirs and without any reference to the settlor or his heirs. The aforesaid decision, therefore, on the facts of the present case, does not get attracted. On the contrary, in an earlier judgment of this Court in the case of Ram Gopal v. Nand Lal & Ors.

AIR (38) 1951 SC 139, the same learned Judge B.K.Mukherjea, J., speaking for the Court, while dealing with the right of hindu widow in connection with the gift of property, made the following pertinent observations: The mere fact that the gift of property is made for the support and maintenance of a female relation cannot be taken to be a prima facie indication of the intention of the donor, that the donee was to enjoy the property only during her lifetime. The extent of interest, which the donee is to take, depends upon the intention of the donor as expressed by the language used, and if the dispositive words employed in the document are clear and unambiguous and import absolute ownership, the purpose of the grant would not, by itself, restrict or cut down the interest. The desire to provide maintenance or residence for the donee would only show the motive which prompted the donor to make the gift, but it could not be read as a measure of the extent of the gift.

It is, of course, true that the aforesaid observations were in connection with the absolute gift of properties in favour of a hindu widow. But the principle laid down therein can squarely get attracted while interpreting and giving effect to the recitals in the Gift Deed of 18th February, 1907. The settlors intention is very clear that he wanted to entrust right of trusteeship and management to his second wife along with her heirs without any fetter or restriction on her power to appoint successor manager after her demise. For all these reasons above, the third point for determination, therefore, also is answered in the affirmative in favour of the contesting respondents and against the appellants. That takes us to the consideration of the last point.

POINT NO.4: Learned senior counsel for the respondents was right when he contended that the scheme of administration settled by the Board of Commissioner for Hindu Religious Endowments, Madras on 13th September, 1945 was not highlighted or relied upon before the Trial Court or even before the High Court. However, it cannot be forgotten that such an Order of the Commissioner is already on the record of the case and that Order was rendered during the lifetime of Pitchammal when Sivasankaran Pillai was also very much in the management of the endowed properties as a General Power of Attorney holder of Pitchammal. A mere look at the Order shows that for this very endowment of kattalai, a scheme of administration was settled under Section 57 of the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927). It would be binding on Sivasankaran Pillai as General Power of Attorney holder of Pitchammal and after her death also, as the legatee and manager of the kattalai properties, Sivasankaran Pillai would be bound by the said scheme and similarly, whoever is the successor trustee appointed by him under the Will (Ex.B-487) of 1st July, 1955 would also be bound by the said scheme and similarly any further trustee appointed for management of the kattalai properties would also be bound by the said scheme so long as the scheme is not altered by the competent authorities. It cannot be disputed that Defendant no.9 would be bound by the said scheme as legatee of the right of management under Will (Ex.B-487) of Sivasankaran Pillai dated 1st July, 1955.

Similarly any further entrustment of the said right of management by Defendant no.9 in favour of Defendant no.10 by his Will will also be subject to the binding settled scheme of 1945 and she will have to act under the directions of the Executive Officer as per the scheme settled for this very kattalai endowment as per the Order of 13th September, 1945.

Even the Executive Officer of the Devasthanam, who is governed by the said Order, is a party to the proceedings being Defendant no.11. Learned counsel for Defendant no.11 submitted before us that relevant provisions of the scheme were not effectively implemented till now because the authorities were awaiting the decision of this Court as to who will be the kattalai manager. Once that dispute is resolved and proper kattalai trustee is indicated all the provisions of the scheme as per Order dated 13th September, 1945 will be enforced. In this connection, we may usefully refer to what the High Court has to say in the impugned judgment. In para-31 of the judgment, the High Court observed as under:

31. We wish to add one thing. The performance of the charities ordained in Ex.B.506 shall be carried out by the defendants who are obliged to do so, under the supervision of the 11th defendant.

The said direction is well sustained. We only want to make it clear that the aforesaid directions of the High Court to 11th defendant for supervising the working of the charities ordained in Ex. B-506 will also have to be carried out in the light of the Order of the Board of Commissioner for Hindu Religious Endowments, Madras dated 13th September, 1945. Defendant no.10, who is now the legatee of the management rights as per the will executed by Defendant no.9 in her favour, will also be bound by these directions. Point no.4, therefore, is answered in the affirmative in favour of the appellants and against Defendant no.10.

As a result of the aforesaid discussion, the appeal fails and is dismissed subject to the further directions contained in our decision on point no.4. In the facts and circumstances of the case, there will be no order as to costs.

The post Palanivelayutham Pillai & Ors Vs. Ramachandran & Ors appeared first on B&B Associates LLP.

DATE OF JUDGMENT: 09/08/2000
BENCH: A.P. Misra & Y.K. Sabharwal

JUDGMENT:

DERL…I…T…….T…….T…….T…….T…….T…….T..J

Heard learned counsel for the parties.

The short question raised is, whether the High Court was right to entertain Exhibit B-1 in evidence, in view of proviso to Section 68 of the Indian Evidence Act.

The short facts are, the appellants filed the suit for partition of the plaint Schedule property claiming 2/5th share as parties are Roman Catholic Christians of Latin rite and as per custom in the community, both daughters and sons get equal share. The appellant also challenged the execution of the gift deed Exhibit B-1 and the Settlement Deed Exhibit B-2. The trial court dismissed the suit with the finding that the plaintiffs have not proved the existence of any custom, by which the male and female heirs share equally to the property of a deceased dying intestate.

The claim of the property is from Jossa Mariyan Fernandez (deceased). The court held that Jaius Fernandez was not in a position to execute the documents on the alleged date i.e.

the 12th of November, 1973. Aggrieved by the same, the appellants filed an appeal. The appellate court, after permitting to bring on record, two additional documents, remanded the case back for fresh determination. After remand the trial court decreed the suit and held that the custom alleged has been proved and disbelieved the execution of the said two documents. The respondents appeal by the appellate court was allowed and the trial court judgment was set aside. The appellants second appeal was dismissed.

The High Court held the issue of custom has become irrelevant in view of the decision of this Court that succession among Christians in Travancore is governed by Indian Succession Act under which daughter also gets right to succeed. However, considering the execution of the said two documents with reference to the gift deed which we are concerned, in the absence of any of the attesting witness being examined, the High Court held as there was no specific denial of this document by the plaintiff hence, proviso to Section 68 of the Evidence Act will apply.

The High Court records; In fact, in this case there is no specific denial of the execution of the documents and it is really a case for setting aside the documents on the ground of vitiating circumstances and in such a case, it is difficult to infer a specific denial of the execution of the documents within the meaning of that proviso.

The finding of the High Court is challenged by the learned counsel for the appellant. He submits that actually there is specific denial of the execution of this document but the High Court has perfunctorily considered this. The existence of denial is very clear in the pleading itself.

Both the High Court and the appellate court drew this inference based on the testimony of PW-5. The relevant portion of the High Court order is quoted hereunder:

Even PW-5 had to admit that he and his brother DW-3 signed in the document on the particular day after the document was prepared at their office and that Jusa Maryan Fernandez was present there then.

Similarly, relevant portion of the appellate court reads as under:

But in cross examination he admitted that Exhibit B-2 is a settlement deed executed by Joos Marian Fernandez and that the document was also prepared as per the directions of the executant. DW-3 is the document writer who prepared both these documents.

It is this part of the testimony which seems to have favoured the courts to construe that there was no specific denial.

We find the High Court committed error by drawing such inference. In considering this question, whether there is any denial or not it should not be casually considered as such finding has very important bearing on the admissibility of a document which has important bearing on the rights of both the parties. In fact the very finding of the High Court; it is difficult to infer a specific denial of the execution of the document shows uncertainly and vagueness in drawing such inference. In considering applicability of proviso to Section 68 the finding should be clearly specific and not vaguely or negatively drawn. It must also take into consideration the pleadings of the parties which has not been done in this case. Pleading is the first stage where a party takes up its stand in respect of facts which they plead. In the present case, we find that the relevant part of the pleading is recorded in the judgment of the trial court dated 17th August, 1977 which is the judgment prior to the remand. The judgment records the pleadings to the following effect:

The gift deed No. 1763/73 and settlement deed No.

1764/73 were brought into existence fraudulently without the knowledge and consent of Jaius Mariyan Fernandus. On the date of the alleged execution of the above said two documents Jaius Mariya Fernandus was confined to bed due to paralysis. At that time he was not in a position to execute any document. In executing the documents defendants 1 and 2 forged the signature of their father after influencing the sub-registrar.

The aforesaid pleading leaves to no room of doubt about denial of execution of the said documents. The pleading records, that defendant Nos. 1 and 2 forged the signature of the father after influencing the sub-registrar.

The denial cannot be more stronger than what is recorded here. Once when there is denial made by the plaintiff, it cannot be doubted that the proviso will not be attracted.

The main Part of Section 68 of the Indian Evidence Act puts an obligation on the party tendering any document that unless at least one attesting witness has been called for proving such execution the same shall not be used in evidence.

Section 68 of the Indian Evidence Act; 68. Proof of execution of document required by law to be attested:- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence;

Provided that it shall not be necessary to call at attesting witness in proof of the execution of any, document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, XVI of 1908 unless its execution by the person by whom it purports to have been executed is specifically denied.

Under the proviso to Section 68 the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, not being a will which is registered is not specifically denied. Therefore, everything hinges on the recording of this fact of such denial. If there is no specific denial, the proviso comes into play but if there is denial, the proviso will not apply. In the present case as we have held, there is clear denial of the execution of such document by the plaintiff, hence the High Court fell into error in applying the said proviso which on the facts of this case would not apply. In view of this the very execution of the gift deed Exhibit B-1 is not proved. Admittedly in this case none of the two attesting witnesses has been produced. Once the gift deed cannot be tendered in evidence in view of the non-compliance of Section 68 of the Indian Evidence Act, we uphold that the plaintiff has successfully challenged its execution. The gift deed accordingly fails and the findings of the High Court contrary are set aside. In view of this no right under this document accrue to the concerned respondent over Schedule A property which is covered by this gift deed.

The High Court order to this extent stand set aside.

The claim of the appellant to the extent of 2/5th share over Schedule A property succeeds. Accordingly, the present appeal is partly allowed. Costs on the parties.

The post Rosammal Issetheenammal Fernandez & Ors Vs. Joosa Mariyan Fernandez & Ors appeared first on B&B Associates LLP.

DATE OF JUDGMENT: 22-Aug-2000

BENCH: D.P.Mohapatro, Doraswami Raju, Shivaraj V. Patil

JUDGMENT

PATTANAIK,J.

These writ petitions filed under Article 32 of the Constitution by the officers of Delhi Higher Judicial Service, some by the promotees and others by direct recruits, in-fact, raise the question as to whether in determining inter-se seniority between the promotees and the direct recruits, the guidelines and directions given by this Court in the case of O.P.Singla & Anr.etc. vs. Union of India & Ors., reported in 1985(1) SCR 351, have been duly followed or not? It is rather unfortunate that on an erroneous impression that the judgment in Singlas case is under consideration before a Constitution Bench, these writ petitions were directed to be placed before a Constitution Bench, resulting thereby inordinate delay in disposal of the matters, which in turn, must have adversely affected the career of several persons. At the beginning of the hearing of these writ petitions, on being asked, the counsel appearing for all the parties, could not indicate any decision where the correctness of judgment of this Court in Singlas case was under consideration, though in one of these writ petitions filed by a direct recruit, namely Writ Petition No. 1252/90, Mr. Gopal Subramanium, the learned senior counsel for the petitioner, challenged the correctness of decision of this Court in Singlas case to which, we will advert at the appropriate time. Suffice it to say for the present that O.P.Singla, who was also a promotee to the Delhi Higher Judicial Service, filed the writ petition, claiming that since they have been working as Additional District and Session Judges, against temporary posts created by the Delhi Administration in the cadre of Additional District & Sessions Judge, they should be treated as Members of Delhi Higher Judicial Service and the seniority should be decided on the basis of continuous length of service. The three Judge Bench, which heard the case delivered two judgments, Chief Justice Y.V.Chandrachud, as he then was, speaking for himself & on behalf of Justice R.S. Pathak and Justice Sabyasachi Mukharji, giving a separate judgment. Chief Justice Chandrachud in the majority judgment also indicated that the conclusion which the majority has arrived at, is not different from the one, reached by Justice Mukharji, but because of the general importance of the case and because of disagreement on the interpretation of one of the provisions of the Recruitment Rules, it was thought fit that the separate judgment should be written. The disagreement between the two judgments was on the question as to whether the Recruitment Rules, provided for any quota in the Delhi Higher Judicial Service and whether the principle of quota and rota was required to be followed for determining the inter-se seniority. Interpreting the proviso to Rule 7 of the Rules, Jusitce Mukharji came to the conclusion that Rule 7 only provides for ceiling of direct recruits by providing that in case, there were recruitment from the Bar as well as by promotion, in such a case, Bar recruits would not be more than one third of the substantive posts in the service and there is no quota as such. Justice Mukharji was of the view that Rule 8(2) proceeds on the mis-conception that there is quota fixed for direct recruits, which Rule 7 does not and Rule 8(2) cannot on plain literal meaning also be construed or interpreted to mean that it was deemed by the legislature and the rule-making body to engraft any quota. Chief Justice Chandrachud, on the other hand, speaking for himself as well as on behalf of Justice Pathak, on a construction of Rule 7 and Rule 8(2), came to hold that the proviso to Rule 7 has to be read along with Rule 8(2), since the two provisions are inter- related and their combined reading yields but one result, that the proviso prescribes a quota of one third for direct recruits. It was also held that Rule 8(2) cannot be held to be unconstitutional, merely because it reserves one third of the vacancies in the service for direct recruits and provides that the first available vacancy in the service will be filled in by a direct recruit, the next two by promotees and so on. In the majority judgment, Their Lordships also came to the conclusion that though the proviso to Rule 7 prescribes a quota of one third for direct recruits and provides for rotation of vacancies between them and the promotees, who are appointed to the service, that rule must inevitably break down when appointments to promotees are made to the Service under Rules 16 and 17. Having interpreted the provisions of Rules 7 & 8 of the Recruitment Rules, as aforesaid, their Lordships examined the different provisions of the Recruitment Rules and recorded their findings, which would be appropriate for us to enumerate for resolving the controversy in these writ petitions. On going through the detailed charts, which were filed by the promotees in Singlas case, the Court came to the conclusion:

These charts show, indisputably, that promotees who have been functioning as temporary Additional District and Sessions Judges for an unbroken period between 8 to 12 years are regarded as juniors to the direct recruits who have been appointed as Additional District and Sessions Judges much later.

The Court further held:

The process of reading the Rules as parts of a connected whole does not end with Rules 7 and 8. Rules 16 and 17 are also relevant for the present purpose and have, indeed, an important bearing on the question of reservation of vacancies for direct recruits to the extent of one-third of the substantive posts in the Service.

Adverting to Rules 16 and 17 it was held:

The position which emerges from the provisions contained in Rules 16 and 17 is that it is permissible to create temporary posts in the Service and, even substantive vacancies in the Service can be filled by making temporary appointments.

Interpreting Rules 2(b) and 2(d), it was held that according to the scheme of the Rules in this case, Service is a narrower body than the cadre. In interpreting Rules 2(b) and 2(d), Their Lordships held that by the definition contained in Rule 2(d), membership of the Service is limited to persons, who are appointed in a substantive capacity to the Service, but by reading the second part of Rule 2(b) in an extended sense, every temporary post which carries the same designation as that of any of the posts specified in the Schedule is a Cadre Post, whether such post is comprised in the Service or not. Such posts and the posts specified in the Schedule will together constitute the Cadre under Rule 2(b), if an extended meaning is given to the second part of the rule. Having given such meaning to the provisions of Rules 2(b), 2(d), 7, 8, 16 and 17, the Court proceeds to determine the question of seniority between direct recruits and promotees. It was then observed:

Care has, therefore, to be taken to apply the provisions of Rule 8(2) in such a manner as not to lead to the violation of the guarantee of equality and equal opportunity contained in Articles 14 and 16 of the Constitution. For that purpose, it is necessary to ascertain as to which of the promotees can be regarded as belonging to the same class as the direct recruits.

In its pursuit to ascertain as to which of the promotees can be regarded as belonging to the same class as direct recruits, the Court observed: that in the matter of seniority, it is difficult to appreciate, how any distinction can be made between direct recruits who are appointed to substantive vacancies in the Service on the recommendation of the High Court under Rule 5(2) and the promotees, who are appointed in consultation with the High Court to posts in the Service under Rules 16 and 17.

While coming to the aforesaid conclusion, it was also indicated that the persons belonging to the Delhi Judicial Service, who are appointed to temporary posts of Additional District and Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement, constitute a class which is separate and distinct from those who are appointed to posts in the Service in strict conformity with the rules of recruitment. The Court, then noted a representative order of appointment under Rule 16 and held that such appointments were neither ad hoc, nor fortuitous, nor in the nature of a stop-gap arrangement and persons promoted under such orders have been factually officiating continuously without a break as Additional District and Sessions Judges for a long number of years. Their Lordships noticed the difficulties in evolving a rule, which will cause no hardship of any kind to any member of the Service and yet attempted to minimise the same as far as possible, so that inequities and disparities which are inherent in a system which provides for recruitment to the Service from more than one source. It would be appropriate to extract the following observations made by Their Lordships in the majority judgment:

It may bear emphasis that promotees appointed under Rules 16 and 17 to the Higher Judicial Service can rank for seniority along with direct recruits only if they are appointed in consultation with the High Court as required by those Rules and if they satisfy the requirement laid down in Rule 7(a) that they must have completed not less than ten years of service in the Delhi Judicial Service.”

The best solution to the situation that confronted the Court in Singlas case was to adopt the rule enunciated in S.B. Patwa rdhan vs. State of Maharashtra, 1977 (3) SCR 775, to have continuous officiation in a non- fortuitous vacancy ought to receive due recognition in fixing seniority between persons who are recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities. It was also held that since rule of quota and rota ceases to apply when appointments are made under Rules 16 and 17, the seniority of direct recruits and promotees appointed under those Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating continuously either in temporary posts created in the Service or in substantive vacancies to which they were appointed in a temporary capacity. Justice Mukharji in the separate judgment also came to the same conclusion for determining the inter-se seniority between the promotees and direct recruits. It may be noticed that the Court ultimately quashed the seniority list which had been prepared by the High Court and observed that a new seniority list be prepared on the basis of the view taken in the judgment and the said new seniority list would include the direct recruits and promotees appointed under Rules 16 and 17. While quashing the seniority list, the seniority of Shri G.S.Dakha was protected, since he had been appointed as Additional and Sessions Judge in a vacancy reserved for the members of Scheduled Caste.

Subsequent to the judgment of this Court in Singla, the High Court of Delhi redrew up a seniority list on 26th of March, 1985 and in drawing up the said list, the principle that was evolved is the subject matter of challenge in the writ petitions filed by the promotees. It may be stated that a fresh look was also given to the earlier seniority list that had been prepared on 26th of March, 1985 and a Committee of Judges submitted the report on 5th of March, 1986, which was approved by the Full Court in its Meeting on 25th of October, 1986 and the final seniority list thus emanated on 11th of November, 1986. According to the promotee officers, while preparing the final seniority list, the High Court of Delhi has not followed the directions given by this Court in Singlas case and erroneously did not take into consideration the continuous appointment of the officers as Additional District and Sessions Judge, notwithstanding the fact that the appointments had been made after due consultation with the High Court and the appointees fulfilled the requirements of Rule 7(1) of the Recruitment Rules, on an erroneous conclusion that the appointment was ad hoc or fortuitous or stop-gap. A representation appears to have been filed by the promotees in 1987 and then the present writ petition was filed which was registered as Writ Petition No. 490/87.

At the outset, it may be stated that the Delhi Higher Judicial Service Rules 1970 were amended in the year 1987 by Notification dated 17th of March, 1987, subsequent to and pursuant to the observations made by this Court in Singlas case and by virtue of explanation added to Rules 16 and 17, Rules 5 and 7 to 11 became applicable to such appointments also. We are not concerned in this batch of cases with the effect of such amended provisions or the inter-se seniority to be determined subsequent to the year 1987, though we are told that a fresh seniority list has been prepared in March, 1995 and the Full Court of Delhi High Court has taken a decision thereof in the year 1998. For the present, we are only concerned with the question whether in preparing the seniority list of the officers recruited to the Higher Judicial Service from both the sources viz. as direct recruits as well as by promotion, prior to the amendment of 1987, the directions and conclusions of this Court in Singlas case has been duly given effect to.

Mr. Kapil Sibal, the learned senior counsel, appearing for the petitioners in Writ Petition No. 490/87, who are the promotees, contended that even though the recruitment to the Higher Judicial Service of these petitioners have been made either under Rule 16 or under Rule 17 of the Recruitment Rules after due consultation and / or approval of the High Court and the incumbents were duly qualified for being promoted under Rule 7 of the Recruitment Rules and had continuously held the posts of Additional District and Sessions Judge, yet the High Court erroneously was of the opinion that they are ad hoc or fortuitous or stop- gap appointees and, therefore they were made junior to the direct recruits and the continuous length of service was not taken into account for the purpose of determination of the inter-se seniority. According to Mr. Sibal, there was no ambiguity in the judgment of this Court in Singlas case, but since the Court had not indicated as to when an appointment can be said to be ad hoc or fortuitous or stop-gap arrangement, the High Court went on examining the number of posts that were available on 22.4.1980, the date on which Smt. Usha Mehra was directly appointed and then after giving her the 30th position in the seniority list, the promotees seniority were adjusted and all other promotees who even though have been recruited under Rules 16 or 17 after due consultation with the High Court and also satisfied the qualification required under Rule 7 and had continuously held the post of Additional District and Sessions Judge, much prior to Smt. Usha Mehra, yet such appointments of the promotees was held to be ad hoc or fortuitous and by adopting such procedure, the High Court acted contrary to the judgment and directions of this Court in Singlas case. According to Mr. Sibal, it is only when an appointment is made to the Higher Judicial Service of a person, belonging to the Delhi Judicial Service without due consultation or approval of the High Court or when such appointee did not have the prescribed qualification under Rule 7 for being promoted or any short term appointment is made in exigency of any particular situation, requiring immediate recruitment or an appointment is made purely by way of stop-gap arrangement, which can obviously be for a very short period, then only the appointment can be held to be on ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement and in such a contingency, the Services rendered by an appointee cannot be counted for the purpose of seniority in the Higher Judicial Service. But when the appointment is made by the Administrator either under Rule 16 or Rule 17, after due consultation with or getting the approval of the High Court and the appointee satisfies the qualification required under Rule 7 and continuously holds the post of Additional District and Sessions Judge for a fairly long period, as in the case in hand, it is difficult to import the concept of ad hoc or fortuitous or stop-gap, which is well known in the Service Jurisprudence to such appointments. In this view of the matter, the High Court committed serious error in coming to the conclusion that the appointment of the petitioners was ad hoc/fortuitous/stop-gap and consequently, the seniority list thus prepared is contrary to the directions given by this Court in Singlas case. The second Committee, which examined the objections filed to the provisional list, approved by the Full Court of Delhi High Court in its Meeting held on 15th of May, 1985 also committed the same mistake as the earlier Committee and went on examining the question of lien under the fundamental rules, and as to how many of the incumbents of the Delhi Higher Judicial Service were on deputation to different posts for the purpose of finding out as to whether the appointments made in that chain would be ad hoc or fortuitous or stop-gap. According to Mr. Sibal, the second Committee, even went to the extent of holding that if a quota post meant for direct recruit according to the quota, remains unfilled, then the promotee occupying the last post must be taken to be holding the post on ad hoc basis or for fortuitous reasons or by way of stop-gap arrangement and the promotee holding the last post must be made to surrender it, and applying this theory one Shri Sagar Chand Jain, who had worked for about four years as Additional District & Sessions Judge was made junior to Smt. Usha Mehra but according to the Committee that was the best solution, and, therefore, the provisional seniority list already approved by the Full Court was recommended to be accepted as the final list. From the final seniority list, it transpires that Shri Sagar Chand Jain had been appointed as Additional District and Sessions Judge on 27.7.76, whereas Smt. Usha Mehra was appointed as Additional District and Sessions Judge as a direct recruit on 22.4.1980, but yet she was shown senior to Shri Jain. Mr. Sibal also pointed out that even the officers who had been appointed in December, 1980 and had been continuing as Additional District & Sessions Judge, yet their appointments were held to be fortuitous as three posts for direct recruitment had been advertised. According to Mr. Sibal, the High Court of Delhi had failed to implement the positive mandate of this Court in Singlas case and the spirit of the same in drawing up the seniority list and gross injustice has been meted out to the promotee officers. The learned counsel points out that Shri M.A.Khan, Shri Ravi Kumar, Shri O.P.Dwivedi, Shri R.C.Jain and Shri J.D.Kapoor though had been duly appointed in the year 1980 under Rules 16 and 17 and had continuously held the post of Additional District and Sessions Judge, they were shown junior to Shri B.S.Chaudhary, a direct recruit, who was appointed on 10.11.1982. Similarly, Shri B.N.Chaturvedi and Shri R.C.Chopra, though had been appointed as Additional District and Sessions Judge in August, 1984 under Rule 16, after due consultation with the High Court of Delhi and also were duly qualified under Rule 7 and continuously held the post of Additional District and Sessions Judge, yet they were made junior to the direct recruits of the year 1985 namely Ms. Sharda Aggarwal, Shri H.R.Malhotra and Shri J.P. Singh. This determination of inter-se seniority, according to Mr. Sibal is in contravention of the principles evolved by this Court in Singlas case and, therefore, such seniority list cannot be sustained. Mr. Sibal also pointed out that even though, this Court in O.P.Singlas case categorically held that the controversy regarding the fixation of the seniority list between the promotees and direct recruits cannot be resolved following the earlier decision in the case of Joginder Nath, yet the High Court while drawing up the seniority list, followed the principle of Joginder Nath. According to Mr. Sibal, there cannot be a more blatant contravention of the directions given by this Court in Singlas case than the one committed by the High Court in the case in hand.

Mr. Dipankar Gupta, the learned senior counsel, appearing for the petitioners in Writ Petition No. 1252/90, on the other hand contended with force that since there cannot be any appointment more than the number of posts available in the Service and this Court having indicated that stop-gap/fortuitous/ad hoc appointments will not enure to the benefit of such appointees for the purpose of their seniority, it was incumbent on the High Court to identify the posts available in the Service for being regularly filled up and any appointments made in excess of the posts available must be held to be either stop-gap or fortuitous or ad hoc and, consequently, the High court did not commit any illegality in drawing up the seniority list. Mr. Gupta also contended that the Member of the Service having been defined in Rule 2(d) to mean a person, appointed in a substantive capacity to the Service under the provisions of the Rules, and Rule 16 having provided for creation of temporary posts in the Service by the Administrator and filling up of the same, such appointments cannot be held to be appointments in the Service in substantive capacity and such appointees cannot be held to be Members of the Service within the meaning of Rule 2(d) and on this ground, the Judgment in Singla’ case requires re- consideration.

Mr. Gopal Subramanium, the learned senior counsel, appearing for the direct recruits, seriously contended that the judgment of this Court in Singla’s case is contrary to the law laid down by this Court in Chandramouleshwar Prasad vs. Patna High Court & Ors. , 1970(2) S.C.R., 666 , and, therefore, the said judgment must be reconsidered. He also contended that the statutory rules having provided for a quota for the direct recruits, as apparent from a combined reading of Rules 7 and 8, if no such quota is fixed for the direct recruits in case of appointments made under Rules 16 and 17, then the rule will be grossly discriminatory and would be liable to be struck down and, therefore, until such quota is provided in respect of appointments made under Rules 16 and 17, it would only be meet and proper to hold that the seniority must be determined in accordance with Rule 8(2), which would necessarily mean that the appointees under Rules 16 and 17 cannot claim parity with regular appointees under Rule 7 and, therefore, cannot claim seniority in the Cadre. The learned counsel also contended that the decision in Joginder Nath’s case being one, in relation to the very Service, the principles evolved therein must be made applicable and, High Court, therefore, rightly relied upon the same in determining the inter-se seniority. According to Mr. Subramanium, only the genuine appointees under Rules 16 and 17 may, at best, get the benefit of the decision of this Court in Singlas case and appointment made against temporary post, because the temporary appointee has gone elsewhere, cannot be held to be an appointment under Rule 16, even though, he might have been nomenclatured as such.

Mr. Govind Das, the learned senior counsel, appearing for the respondents in Writ Petition No. 490/87, fairly stated that this Court having not indicated the true import and meaning of the expression stop- gap/fortuitous/ad hoc , the High Court had to give meaning to the same and in so doing, the High Court has taken into account the number of posts available in the Service and has tried to implement the directions given by this Court in Singlas case. According to Mr. Das, this Court should now indicate or clarify the meaning of the expression stop-gap/fortuitous/ad hoc in which event, there will not be any further controversy in implementing the directions of this Court for drawing up the seniority list.

Mr. Rakesh Kumar also appearing for respondent No. 8 in Writ Petition No. 490/87, who happens to be a direct recruit, contended that in Singlas case, this Court has tried to work out the equity and for working out equity, it will not be appropriate to take into account the Services rendered by an appointee against a temporary post when the original appointee against the said temporary post is on deputation to some other Service. According to Mr. Rakesh Kumar, by not following the quota, meant for direct recruits, gross inequity has already been met out to such direct recruits and over and above that, if the continuous service of such an appointee under Rule 16, as stated above is taken into account for determination of their seniority, then the aspiration with which a Member of the Bar joins the post in the Higher Judicial Service will be marred and it will work out gross inequity, so far as the direct recruit is concerned.

Shri J.P.Singh, respondent no. 9 in Writ Petition No. 490/87, who is also a direct recruit, argued in- person and reiterated the stand taken by Mr. Dipankar Gupta, appearing for some of the direct recruits and Mr. P.P. Rao, appearing for the High Court. Mr. R.C. Chopra, a promotee, also appeared in-person and adopted the stand taken by Mr. Sibal.

Mr. P.P. Rao, the learned senior counsel, appearing for the Delhi High Court, on the other hand contended that prior to the judgment in Singlas case, the High Courts understanding of the rule was that appointments made under Rules 16 and 17 will not count for the purpose of seniority and inter-se seniority has to be determined only between direct recruits and promotees made under Rule 7, following the principle engrafted in Rule 8(2). But after the judgment in Singlas case, when the Court was confronted with a situation that there has been more number of appointments than the posts available and even in Singlas case, this Court had indicated that the fortuitous, ad hoc and stop-gap appointees, cannot claim their seniority, the Full Court of Delhi High Court took the decision that all appointments made beyond the number of posts available, must assume the character of fortuitous, ad hoc or stop-gap, and, therefore, cannot claim seniority in the Cadre. According to Mr. Rao, though in Singlas case, the Court has not indicated the meaning of the expression ad hoc, fortuitous or stop-gap but those expressions have been given due meaning in Parshotam Lal Dhingra vs. Union of India, 1958 SCR, 828, and, therefore, those meanings should be imported and given effect to. According to Mr. Rao, even though, the appointment letters might have indicated the appointments to be one under Rules 16 or 17, but that by itself will not create any right in favour of the appointees on the basis of the Singlas judgment inasmuch as a wrong leveling will not create a right as such. In support of this contention Mr. Rao, relied upon decisions of this Court in the case of Afzal Ullah vs. The State of Uttar Pradesh, 1964(4) SCR 991 , and N.B.Sanjana, Assistant Collector of Central Excise, Bombay & Ors. Vs. Elphinstone Spinning & Weaving Mills Co. LTD., 1971(3) SCR, 506. Mr Rao with reference to the seniority list, which had been drawn up, contended that when the appointments have been shown to be out of turn such appointment must be held to be fortuitous within the meaning of the said expression used in Singla’s case and, therefore, such appointees cannot claim a parity or equality with the regular appointees under Rule 7 and, therefore, cannot claim their seniority on the basis of mere continuous length of Service, as contended by Mr. Sibal, appearing for the promotees.

Having examined the rival submissions at the Bar and having scrutinized the two seniority lists drawn up by the Delhi High Court, the provisional as well as the final, the provisional made on 26th of March, 1985 and the final list which was approved by the Full Court on 25th of October, 1986, we find sufficient force in the contentions made by Mr. Sibal, appearing for the promotees. We are also of the considered opinion that the High Court of Delhi, in drawing up the seniority list, though proceeded to allocate seniority according to the length of continuous officiation, regardless of whether an appointee held a temporary post or a permanent post or whether he was a promotee or a direct recruit, as directed by this Court in Singlas case, but committed error by excluding the persons, on the ground that they held posts on ad hoc basis or for fortuitous reasons or by way of stop-gap arrangement, even though appointments had been made under Rules 16 and 17 after due consultation with and or approval of the High Court and the appointees satisfied the qualification required under Rule 7 of the Rules. It is on this score, the ultimate seniority list, drawn up, stands vitiated. When the report of the first Committee, on the basis of which ultimately provisional seniority list was drawn up is examined, it would appear that the Committee went on examining the question of a lien against a post and then, recorded a finding that anyone who comes to hold one of those posts, which is subject to a lien, must be held to be holding as an ad hoc arrangement or for fortuitous reasons or as a stop-gap arrangement. The Committee also recorded a further finding that if the position of the person, whose seniority is under consideration is beyond the total number of posts in the Service, then also his appointment must necessarily fall within the description of ad hoc/fortuitous/stop-gap and having said so, the Committee assigned Ms. Usha Mehra, the 30th post and then adjusted the seniority accordingly. The conclusion of the Committee that a person, promoted to the Higher Judicial Service under Rules 16 or 17 of the Rules to a post against which some other person has a lien, would ipso facto make such appointment ad hoc/fortuitous/stop-gap, is contrary to the conclusion of this Court in Singlas case. Then again, this Court having categorically directed in Singlas case, that appointments made under Rule16 or 17, after due consultation and/or approval of the High Court, and the appointee did qualify to hold the promotional post, as required under Rule 7 of the Recruitment Rules, then such appointment of the appointee will not be ignored for the purpose of determining the inter-se seniority in the cadre and on the other hand, continuous length of Service should be the basis, though Rule 8(2) of the Rules provides otherwise. Yet the High Court took shelter under the expression ad hoc/fortuitous/stop- gap and ignored the continuous length of Service of such appointees, while determining the inter-se seniority. In fact, in Singlas case, the Court on being confronted with a peculiar situation, had given the direction as to in what way, it will be equitable for all concerned to determine the inter-se seniority, but notwithstanding the same, the High Court appears to have stuck to the idea of the principles engrafted in Rule 8(2) of the Rules and then decided the question of seniority on the basis of number of posts, available in the Service. While doing so, the High Court obviously missed the findings of this Court that under the scheme of the Rules, Service is a narrower body than the cadre and every temporary post, which carries the same designation as that of any of the posts in the schedule is a cadre post, whether such post is comprised in the Service or not. It is also apparent from the report that the High Court followed Joginder Naths case in drawing up the seniority, on the ground that the judgment (in Singlas case) does not indicate whether the earlier decision of the High Court in Joginder Naths case is still to be followed in preparing the seniority list or not, but obviously, the High Court has failed to appreciate, what was stated in the concurrent judgment of Mukharji J, in Singlas case, wherein in no uncertain terms, it was stated that so far as, controversy regarding the fixation of the seniority list between the promotees and direct recruits, the same will not be guided by Joginder Naths case inasmuch as in Joginder Naths case, the Court construed the Delhi Judicial Service Rules, 1970 in the context of seniority and confirmation and not in the context of inter-se seniority between the promotees and direct recruits. The entire reasoning given by the High Court in the first report, on the basis of which, provisional seniority list has been drawn up, cannot, but be held to be contrary to the directions given by this Court in Singlas case, and accordingly, must be held to be erroneous. The reasoning of the High Court, in fact, nullifies the ratio in Singla’s case, wherein Chandrachud CJ, had observed, after noticing a representative order of appointment under Rule 16:-

The appointments were neither ad hoc, nor fortuitous, nor in the nature of a stop-gap arrangement. Indeed, no further orders have ever been passed recalling the four promotees and, others similarly situated, to their original posts in the subordinate Delhi Judicial Service. Promotees who were under Rule 16 have been officiating continuously, without a break, as Additional District and Sessions Judges for a long number of years. It is both unrealistic and unjust to treat them as aliens to the Service merely because the authorities did not take up to the necessity of converting the temporary posts into permanent ones, even after some of the promotees had worked in those posts from five to twelve years.”

Yet, the High Court in drawing up the seniority list, have treated such promotees, who are appointed under Rule 16 as aliens to the Service and thus, the High Court was wholly in error in preparing the provisional seniority list, as already stated. If we examine the second Committee report, which had considered the objections filed by the promotees and ultimately, on the basis of which the final seniority list was approved by the Full Court in its Meeting on 25th of October, 1986 and the list was prepared on 11th of November, 1986, we also find, the High Court committed similar error in accepting the provisional seniority list as final. In the second Report, the Committee, again was of the view that if a post meant for a direct recruit, according to the quota, remains unfilled, then the promotee occupying the last post, must be taken to be holding that post on ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement. This indicates that the Committee was still obsessed with the provisions of Rule 8(2) of the Recruitment Rules, even though in Singlas case, it has been categorically held by this Court that quota principle has broken down and as such, seniority cannot be determined by taking recourse to the quota and rota provided under Rule 8(2) but on the basis of continuous length of Service, provided the promotees have been promoted after due consultation with and/or approval of the High Court under Rule 16 or 17 and they did possess the requisite qualification for promotion, as provided under Rule 7. At this stage, it would be appropriate to notice the letter of appointment of Shri M.A. Khan, Shri O.P. Dwivedi, Shri R.C.Jain and Shri J.D. Kapoor by the order of the Administrator dated 19th of December, 1980, which is identical with the representative order, this Court had taken note of, in Singlas case. It is not the case of the High Court or any of the direct recruits-respondents that these promotees, on being promoted on 19th of December, 1980, have at any point of time, reverted to their substantive post before Shri B.S. Chaudhary was appointed as a direct recruit on 10.11.1982. In this view of the matter, these promotees, who are appointed under Rule 16(2) of the Recruitment Rules on 19.12.1980, and continuously held the said post and further, such appointments have been made in consultation with the High Court of Delhi and they had the requisite qualifications under Rule 7 of the Recruitment Rules, their appointments cannot be held to be either ad hoc or fortuitous or stop-gap, and necessarily, therefore, they must be held to be senior to Shri B.S.Chaudhary, a direct recruit of the year 1982, on the basis of continuous length of Service, in accordance with the directions given by this Court in Singlas case. Similarly, the two other promotees namely Shri B.N.Chaturvedi and Shri R.C.Chopra, who had been appointed since August, 1984 and also continuously held the post of Additional District and Sessions Judge for all these years, must be held to be senior to the direct recruits namely Ms. Sharda Aggarwal, who was directly recruited on 07.6.1985 and Shri H.R. Malhotra and Shri J.P.Singh, who were directly recruited on 26.11.1985.

It would be worthwhile to notice that the promotee officers, in their rejoinder affidavit, have indicated that in course of arguments in Singlas case, the Supreme Court had directed the Delhi High Court to submit a chart, indicating under which rule, the promotees had been appointed and pursuant to the said directions, the High Court had submitted a chart and all the petitioners(the promotees) were shown to have been appointed either under Rule 16 or Rule 17. A chart, also purported to have been filed in the earlier case, has been enclosed to the rejoinder affidavit, which clearly indicates the factual matrix, which were there before this Court in Singlas case. Even, the High Court in its counter affidavit in the present proceedings, has submitted that all the petitioners herein were appointed under Rule 16 or 17 of the Rules and the respective dates of appointments are matters of record.

So far as the argument of Mr. Dipankar Gupta, the learned senior counsel, appearing for the direct recruits, to the effect that in view of the definition of Service in Rule 2(d), the appointees under Rule 16 cannot be held to be Members of the Service, it may be stated that the said question was duly considered in Singlas case and on an analysis of the scheme of the Rules, this Court came to the conclusion that the Rule is peculiar in nature and Cadre is a larger concept than Service under the Recruitment Rules. The Court recorded a finding that all persons recruited under Rule 17 to the posts having the same designation, as per the post in the schedule, must be held to be Members of the Cadre and, therefore, while determining the inter se seniority in the ’Cadre’, they cannot be ignored from consideration nor can they be held to be alien to the Cadre. The said contention of Mr. Gupta, accordingly, cannot be sustained.

So far as the contention of Mr. Gopal Subramanium, the learned senior counsel, appearing for the direct recruits, is concerned, in praying for re- consideration of the judgment of this Court in Singlas case, the same also cannot be sustained inasmuch as the Court in Singlas case did consider the earlier decision of this Court in Chandramouleshwars case, and recorded a finding that in that case, it was only a matter of adjustment of seniority between the promotees inter-se and not between the promotees and direct recruits and, therefore, the ratio therein is of no application. Further, Justice Mukharji, in his concurring judgment did consider Joginder naths case and held that the principle evolved therein cannot be applied to the case in hand, where inter-se seniority between the promotees and direct recruits are going to be decided on equitable consideration. We are also unable to accept the contention of Mr. Subramanium that until the principle of quota provided in Rule 8 is made applicable to appointments under Rules 16 and 17, such appointees, under Rules 16 and 17 cannot claim continuous length of service for their seniority. Such a contention appears to have been considered and negatived in Singlas case. The Judgment of this Court in Singlas case is obviously intended to evolve some equitable principle for determination of inter-se seniority of a group of officers, when the rule of seniority contained in Rule 8(2) has been held to be not operative because of breaking down of quota and rota rule. To meet the peculiar situation, the Court evolved the principle that continuous length of service should be the criteria for inter-se seniority between the direct recruits and the promotees, provided, the promotees did possess the required qualification as per Rule 7 and the appointments had been made under Rules 16 and 17, after due consultation and/or approval of the High Court, which in our view also is the most appropriate basis, evolved in the fact situation. This being the position, we see no justification for re-considering the decision of this Court in Singlas case. That apart, the Recruitment Rules have been amended in the year 1987 and the aforesaid principle, which had been evolved in Singlas case, would apply for determining the inter-se seniority between the promotees and direct recruits, all of whom had been appointed to the Higher Judicial Service, prior to the amendment of the Rules in question, which was made in the year 1987. We have also considered the arguments advanced by Mr. P.P.Rao, the learned senior counsel, appearing for Delhi High Court and we are unable to persuade ourselves to accept the same inasmuch as it is not a mere question of leveling, as urged by Mr. Rao, but, it is a question which was directly considered by this Court in Singlas case and, after examining the representative order, the Court positively recorded a conclusion that the appointments made under Rule 16 or 17 cannot be held to be alien to the Cadre. In fact the Court was persuaded to come to the aforesaid conclusion, as it was found that the persons appointed under Rules 16 and 17 having all the necessary qualifications and having been appointed after due consultation with the High Court, though they had served for more than five to seven years, but yet have been shown junior to the direct recruits, who had come to the Service much later than them. It is, therefore, not possible for us to accept Mr. Raos contention and permit any further scrutiny into such appointments made either under Rule 16 or under Rule 17 of the Recruitment Rules. It is in fact, interesting to notice that the schedule to the Recruitment Rules, which came into existence in 1971, was amended for the first time only in the year 1991, 20 years, after and if a strict construction to the different provisions of the Rules would be given, then all the temporary appointees under Rule 16, who might have rendered 5 to 10 years of Service would be denied of their right for the purpose of seniority. It is this impasse, created on account of inaction of the authorities and on account of non- adherence to the provisions of the Rules strictly, which persuaded the Court in Singlas case to evolve the principles for working out equities and that principle has to be followed by the High Court in drawing up the seniority list. It is not necessary to deal with the contention, raised by Mr. Rakesh Kumar, appearing for the direct recruits and Shri J.P.Singh, appearing in person, who is a direct recruit also, as well as Mr. R.C.Chopra, appearing in person, who is a promotee, as essentially, they adopted the arguments of either Mr. Dipankar Gupta or Mr. Gopal Subramanium and Mr. Kapil Sibal.

So far as the terminology used in Singlas case, namely ad hoc, fortuitous and stop-gap, the same is quite familiar in the Service Jurisprudence. Mr. Rao, appearing for the High Court of Delhi, however contended before us that the said terminology should be given the same meaning, as was given in Parshotam Lal Dhingra vs. Union of India, 1958 S.C.R. Page 828. In Dhingras case, the Court was examining whether removal of an employee can be held to be a penal and whether Article 311(2) of the Constitution can at all be attracted and the Court also observed that certain amount of confusion arises because of the indiscriminate use of the words provisional, officiating and on probation. We do not think that the concept or meaning given to those terminology in Dhingras case will have any application to the case in hand, where the Court is trying to work- out an equitable remedy in a manner which will not disentitle an appointee, the benefit of his fairly long period of Service for the purpose of seniority, even though he possesses the requisite qualification and even though his appointment has been made after due consultation and/or approval of the High Court.

The three terms ad hoc, stop gap and fortuitous are in frequent use in service jurisprudence. In the absence of definition of these terms in the rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The meaning given to the expression fortuitous in Strouds Judicial Dictionary is accident or fortuitous casualty. This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the same cannot be held to fortuitous. In Blacks Law dictionary, the expression fortuitous means occurring by chance, a fortuitous event may be highly unfortunate. It thus, indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. The expression ad hoc in Blacks Law Dictionary, means something which is formed for a particular purpose. The expression stop-gap as per Oxford Dictionary, means a temporary way of dealing with a problem or satisfying a need.

In Oxford Dictionary, the word ad hoc means for a particular purpose; specially. In the same Dictionary, the word fortuitous means happening by accident or chance rather than design.

In P. Ramanatha Aiyers Law Lexicon (2nd Edition) the word ad hoc is described as for particular purpose, Made, established, acting or concerned with a particular and or purpose. The meaning of word fortuitous event is given as an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God.

The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter-se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as ad hoc or stop-gap. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as fortuitous in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a stop-gap arrangement and appointment in the post as ad hoc appointment. It is not possible to lay down any straight-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop-gap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers in the cadre.

In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be stop-gap or fortuitous or purely ad hoc. In this view of the matter, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be fortuitous/ad hoc/stop-gap are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.

In view of our conclusions, as aforesaid, we quash the seniority list both provisional and final, so far as, it relates to the appointees either by direct recruitment or by promotion in the Delhi Higher Judicial Service, prior to the amendment of the Recruitment Rules in the year 1987, and their inter-se seniority must be re- determined on the basis of continuous length of service in the Cadre, as indicated in Singlas case and explained by us in this judgment. Since the future of these officers to a great extent depends upon seniority and many of these officers may be on the verge of superannuation, the High Court would do well in finalising the seniority within a period of six weeks from the date of receipt of this judgment.

Writ Petition No. 490/87 is accordingly allowed. Writ Petition Nos. 1252/90 and 14114/84 are accordingly dismissed. Writ Petition Nos. 707/88, 856/88 and 764/88 stand disposed of in terms of the directions given herein-above. Application for impleadment filed by Mr. R.C.Chopra in Writ Petition(Civil) No.490/87 is allowed. Application for impleadment filed by one Ms.Rekha Sharma in Writ Petition(Civil) No.1252 of 1990, stands rejected, since in this batch of cases, we are concerned with the inter-se seniority between the direct recruits and the promotees, who are appointed prior to the amendment of the Rules in 1987 and the applicant Ms. Rekha Sharma was appointed in January, 1988.

The application for impleadment by Shri J.B. Goel in Writ Petition(Civil) No. 14114 of 1984 stands allowed.

……………………J.
(G.B. PATTANAIK)

……………………J.
(S.RAJENDRA BABU)

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