Constitution of India, Art. 136 - Protected monuments - Maintenance and preservation - Stone crushing industries located nearby directed to be shifted - Alternative area provided - Authorities of State Electricity Board directed to supply electricity at alternative site.
Monuments - Protection - Stone crushing industry located nearby shifted.
Ecology - De-secretion of hills - Prevented by shifting stone crushing industry.
(Paras 2, 5)
Order: - Heard learned counsel for the parties. Delay condoned.
2. The petitioners seek special leave to appeal to this Court from the two orders dated 15-12-1989 and 6-2-1990 respectively of the Patna High Court in M.J.C. No. 435 of 1989. Those orders were interlocutory in character by which the High Court, in substance, directed that as the three Hills - Ramshilla, Prethilla and Branhmyoni - had been declared protected monuments no stone crushing industry should be allowed to be located within a distance of 1/2 kilometre from the area so declared and any stone crushing industries located within such 1/2 kilometre area should be shifted. This measure was intended to prevent illegal quarrying on and consequent desecration of the Hills. Petitioners urge that their stone crushing establishment, admittedly, not being within the protected-area, they should not be asked to move further away by the artificial extension of the area brought about by the High Court's orders which petitioners say are without jurisdiction. The State of Bihar seeks to support the directions of the High Court on the ground that such directions were issued to effectuate the purposes of the notifications and prevent their violation.
3. The present special leave petition, as stated earlier, is against these interlocutory directions. But the High Court has since passed a final order dated 14-5-1990 disposing of the main matter itself. In regard to petitioners 8 and 10 in their Special Leave Petitions who were interveners in the proceedings before the High Court, the High Court in the course of its final order provided:
"............So far as interveners are concerned, they should have no further grievance as to the loss of business in view of earmarking of 5.85 acres of land as stated in the affidavit aforementioned. They, if so advised, may apply to the District Magistrate-cum-Collector, Gaya, for settlement of such land and such area thereof that may be equivalent to the land upon which their crushers were operated. The Collector shall be obliged, in view of the statement made therein to honour the commitment of the State of Bihar and accordingly enter into fresh agreements with such persons subject to such terms and conditions which may be found necessary particularly with reference to the maintenance and preservation of the hill aforementioned ...."
4. At the outset, there is one thing that requires to be set-right. There are 10 petitioners in this Special Leave Petition. Only two of them, namely petitioners Nos. 8 and 10, were interveners before the High Court and High Court issued certain directions for the protection of their interests in the course of the final order dated 14-5-1990. So far as the rest of the petitioners are concerned, we are afraid, we cannot investigate their claims here. We do not know whether they were also carrying on the stone crushing operations in the vicinity of the three protected Hills and whether they are also the intended beneficiaries of the extent of 5.85 acres said to have been earmarked for the rehabilitation of stone crushing industries affected by the orders of the High Court. We, accordingly, confine this order to petitioners Nos. 8 and 10. The special leave petition so far as all other petitioners are concerned is dismissed with liberty to them to approach the High Court if so advised.
5. We were told that the area of 5.85 acres stated to have been set apart for the location of the Stone Crushing Industries is within about a Kilometre from the area of the protected Hills. Petitioners 8 and 10 say that they are willing to shift to places to be provided to them if facilities for shifting of the electric supply are made available at new sites. Sri Mahabir Singh, learned counsel for the State of Bihar, submitted that this is an administrative matter for Electricity Board and that Government would afford such help as the petitioners may require securing the shifting of their power installations. Indeed, if after petitioners shift their establishments to a new location, the power installation is not also shifted the contemplated arrangements would be to no purpose. Therefore, we direct the authorities of the State Electricity Board to act in aid of the assurance given by the Government and provide facilities for shifting of the electrical installation of petitioners 8 and 10 to the place allotted to them for their stone cruising operations. With these directions, the Special Leave Petition of petitioners 8 and 10 is disposed of. So far as the rest of the petitioners are concerned, the Special Leave Petition is dismissed.
U. P Legal Aid and Advice Board v. State of U. P
AIR 1991 Allahabad 281
Civil Misc. Writ Petition No. 10055 of 1989, D/-4-2-91
R. R. K. Trivedi, J.
(A) Forest Act (1927), Ss. 4, 6(1) and 7 - Constitution of land as reserved forest - Inquiry into claims of Adivasis and Banvasis living in area covered by Notification - Forest settlement officer is under legal obligation to enquire into all claims including those existence of which is not claimed in writing but can be ascertained from records of Government.
(B) Forest Act (1927), Ss. 7 and 20 – Right of tenure holders recognised by competent courts – Orders in that respect gaining finality – Forest settlement officer justified in excluding such area from Notification under S. 20.
(C) Forest Act (1927), Ss. 7, 8 and 20 – Orders of Forest Settlement Officer excluding some area from Notification under S. 20 – Orders cannot be found fault with on ground of non-framing of issues or failure to make local inspection of the land by himself.
(D) Forest Act (1927), Ss. 6, 7 – Forest Settlement Officer excluding land (not fit for declaring as reserve forest) in favour of gaon sabha – Additional District Judge not justified in reversing order on ground that only State Government could exclude the same in favour of gaon sabha.
U. P. Zamindari and Abolition Act (1 of 1951), S. 117.
(E) Forest Act (1927), Ss 4, 6, 7 – Notification under S. 4 – Statements of claims preferred under S. 6 – Rejection on ground that the same were not stamped is improper.
Banwasi Seva Ashram v. State of U.P.
(1992) 2 Supreme Court Cases 202
Kuldip Singh, P.B. Sawant and N.M. Kasiwali, JJ.
1. On the basis of a letter received from Banwasi Seva Ashram operating in Mirzapur District of Uttar Pradesh Writ Petition (Criminal) No.1061 of 1982 under Article 32 of the Constitution of India was registered. Meanwhile the National Thermal Power Corporation Limited (TPC) decided to set up a super-thermal plant on the part of the lands, which were subject matter of the writ petition. NTPC got itself impleaded as a party in the writ petition and claimed that the completion of the project was a time-bound programme as such the land earmarked for the project be made free from prohibitive directions of this Court in the Writ Petitions. The Writ petition was disposed of by an order dated November 20, 1986. This Court issued comprehensive directions and appointed a Board of Commissioners to supervise the implementation of the said directions. This Court has been monitoring the project during all these years in terms of the directions issued on November 20, 1986.
2. By this order we are finally disposing of the proceedings and the monitoring process so far as the NTPC is concerned. The directions dated November 20, 1986 relevant for this purpose are as under:
“(1) So far as the lands which have already been declared as reserved forest under Section 20 of the Act, the same would not form part of the writ petition and any direction made by this Court earlier, now or in future in this case would not relate to the same. In regard to the lands declared as reserved forest, it is however open to the claimants to establish their rights, if any in any other appropriate proceeding. We express no opinion about the maintainability of such claim.
(5) The land sought to be acquired for the Rihand Super-Thermal Power Project of the NTPC shall be freed from the ban of dispossession. Such land is said to be about 153 acres for Ash pipeline and 1643 acres for Ash Dyke and are located in the villages of Khamariya, Mithahani, Parbatwa, Jheelotola, Dodhar and Jarha. Possession thereof may be taken but such possession should be taken in the presence of one of the commissioners who are being appointed by this order and a detailed record of the nature and extent of the land, the name of the person who is being dispossessed and the nature of enjoyment of the land and all other relevant particulars should be kept for appropriate use in future. Such records shall be duly certified by the Commissioner in whose presence possession is taken and the same should be available for use in all proceedings that may be taken subsequently.
The NTPC has agreed before the Court that it shall strictly follow the policy on facilities to be given to land oustees as placed before the Court in the matter of lands which are subjected to acquisition for its purposes. The same shall be taken as an undertaking to the Court".
3. Mr. Datta learned Senior Advocate appearing for the NTPC has stated that the NTPC has already taken actual/symbolic possession 1375 acres of land. In respect of 1004 acres of the said land a notification under Section 4 of the Indian Forest Act, 1927 (hereinafter called "the Act") was issued and the proceedings for declaring the said area as reserved forest were undertaken. The remaining 371 acres were part of Goan Sabha land and the ownership in the said land vested in the State Government. According to Mr. Datta this land measuring 1375 acres is under the possession of NTPC and the project construction is in progress. Mr. Ramamurthy, on the other hand, has contended that the actual possession of whole of the area is not with the NTPC and the Adivasi/land owners are still in possession of their respective holdings.
4. Mr. Datta further states that apart from 1375 acres, mentioned above, the NTPC has yet to obtain possession of 465 acres of land, which is reserved forest under Section 20 of the Act. In view of the directions quoted above the lands which have been declared as reserved forest under the Act are not the subject matter of the writ petition and as such no direction can be issued by this Court in that respect. In this order we are concerned with 1004 acres of land which is subject matter of Section 4 notification under the Act. We have to ensure that the rights of the oustees are determined in their respective holdings and they are properly rehabilitated and adequately compensated.
5. According to the summary of rehabilitation package filed on the record by Mr. Datta there are 678 families, which have been ousted from the land. Mr.Ramamurthy however states that there are more than 1500 families, which are likely to be affected by the take-over of 1004 acres of land by the NTPC.
6. We direct that the following measures to rehabilitate the evicts who were in actual physical possession of the lands/houses etc. be taken by the NTPC in collaboration with the State Government:
(1) The NTPC shall submit a list of the evictees claimants to the District Judge, Sonebhadra before April 15,1992 Mr. Prem Singh shall also submit the list of the evictees to the District Judge by April 15,1992. The District Judge Sonebhadra shall be the authority to finalise the list of the evictees.
(2) One plot land measuring 60' x 40' to each of the evictee families be distributed for housing purposes through the district administration. Mr. Datta has informed us that the plots of the said measurements have already been given to 641 families. We direct that the remaining evictees be also given the plots.
(3) Shifting allowance of Rs.1500 and in addition a lump sum rent of Rs.3000 towards housing be given to each of the evictee families.
(4) Free transportation shall be provided for shifting.
(5) Monthly subsistence allowance equivalent to loss of net income from the acquired land to be determined by the District Judge Sonebhadra subject to a maximum of Rs.750 for a period of 10 years. The said payment shall not be linked with employment or any other compensation.
(6) Unskilled and semi-skilled posts in the project shall be reserved for the evictees subject to their eligibility and suitability.
(7) The NTPC shall give preference to the oustees in employment in Class III and IV posts under its administration subject to their suitability and eligibility.
(8) The evictees be offered employment through the contractors employed by the NTPC.
(9) The jobs of contractors under the administration of the NTPC be offered to the evictees.
(10) The Shops and other business premises within the NTPC campus be offered to the evictees.
(11) The NTPC shall operate for the benefit of the evictees self-generating employment schemes such as carpentry training (free tools to be provided after completion of training), carpet weaving training sericulture, masonry training, dairy farming, poultry farming and basket weaving training etc.
(12) The NTPC shall provide facilities in the rehabilitative area such as pucca roads, pucca drainage system, handpumps, wells, potable water supply, primary school, health center, Panchyat Bhavan, electricity connections, bank and Sulabh Sauchalaya complex etc.
(13) The NTPC shall provide hospitals, schools, adult education classes and spot centres for the evictees.
7. The Deputy Commission Sonebhadra shall supervise and ensure that the above rehabilitation measures directed by us are fully complied with by the NTPC and other authorities.
8. As regards compensation in respect of lands, crops etc Mr. Datta states that crop compensation at Rs.850 per acre per year has been paid to the oustees. He states that a sum of Rs.16,44,529.68 paise has been paid to the oustees in this respect. He further states that Rs.1 crore and Rs.5,07,500 have been further been deposited by the NTPC with the State Government on March 13, 1991 and January 20, 1992 respectively. According to him out of the said amount Rs.48,35,649.17 paise have so far been paid to the oustees as land compensation at the rate of Rs.10,000 per acre for the land has been determined as provisional compensation. We direct that the provisional compensation at the above rates be paid to the oustees, if not already paid within 8 weeks from today. In respect we further issue the following directions:
(a) The District Judge, Sonebhadra shall be the authority to determine the compensation in respect of land, crop, house and any other legitimate claim based on existing rights of the oustees.
(b) Mr. Prem Singh, Commissioner along with the Project Officer of the NTPC and sarpanch of the area concerned shall verify the extent of the property of the oustees who have been or are likely to be evicted from the actual physical possession of the land/houses etc. It has been stated before us that such verification can be done within a period of two months. We direct that the verification be completed before April 15, 1992. The rights determined by Mr. Prem Singh and party shall be subject to the final approval of District Judge, Sonebhadra.
(c) The District Judge, Sonebhadra shall issue notices to all the claimants before May,15 1992 asking them to file their respective claims for compensation. The evictees may also on their own whether they have received provisional compensation or not prefer their claims for compensation to the District Judge, Sonebhadra before August 1,1992.
(d) The District Judge Sonebhadra shall finally decide all the compensation claims expeditiously preferably before March 31, 1993. The orders passed by the District Judge in each case shall be treated as the orders under Section 17 of the Act as amended by the Uttar Pradesh Act of 1965.
(e) Any party, not satisfied with the order of the District Judge may have recourse to any remedy available under law.
9. With the above directions we finally close the proceedings in respect of the lands in possession of the NTPC.
Chairman-cum-Managing Director, Bihar State Road Transport Corporation, Patna, v. Smt. Manju Bhushan Sinha
AIR 1992 Patna 109
Misc. Appeal No. 81 of 1988, D/-19-11-1990
Bhuvaneshwar Prasad, J.
(A) Motor Vehicles Act (4 of 1939) (since repealed), S. 110-B – Negligence – Proof – Accident – S. T. Bus coming from behind and dashing against rickshaw which is comparatively slow moving vehicle – Deceased thrown out of rickshaw due to impact – Held, bus was driven rashly and negligently and Maxim “Res Ipsa Loquitur’ was applicable in such case.
Torts – Negligence – Proof – Res Ipsa Loquitur – Applicability.
(B) Motor Vehicles Act (4 of 1939) (since repealed), S. 110-B - Accident - Compensation – Quantum Determination – Tribunal should take into account future prospect, changes of promotion of deceased in his service and also monetary inflation.
In the matter of: Cauvery Water Disputes Tribunal
AIR 1992 Supreme Court 522
Special Reference No. 1 of 1991, D/- 22-11-1991
Ranganath Misra C.J.I., K. N. Singh, A. M. Ahmadi, Kuldip Singh and P.B. Sawant, JJ.
(A) Constitution of India, Art. 246, Sch. 7, List 2, Entries 17, 14, 18 and List I Entry 56 – Inter-State river water – Power of State Legislature to legislate – Like Entry 17 of List 2 any State legislation either under Entry 14 or 18 of List 2 affecting inter-State river water would be subject to Entry 56 of List I.
The State has competence to legislate with respect to all aspects of water including water flowing through inter-State rivers, subject to certain limitations, viz. the control over the regulation and development of the inter-State river waters should not have been taken over by the Union (Entry 56 of List I) and secondly, the State cannot pass legislation with respect to or affecting any aspect of the waters beyond its territory. Entry 14 of List II relates, among other things, to agriculture. In so far as agriculture depends upon water including river water, the State legislature while enacting legislation with regard to agriculture may be competent to provide for the regulation and development of its water resources including water supplies, irrigation and canals, drainage and embankments, water storage and water power which are the subjects mentioned in Entry 17 of list II. However, such a legislation enacted under Entry 14 of List II in so far as it relates to inter-State river water and its different uses and the manners of using it, would also be subject to the provisions of Entry 56 of List I. So also Entry 18 of List II which speaks, among other things, of land improvement which may give the State Legislature the powers to enact similar legislation as under Entries 14 and 17 of List II would be subject to the same restrictions.
(B) Inter-State Water Disputes Act (33 of 1956), S.1 – Source of legislation – It is Art. 262 and not Entry 56 of list I – Art. 262, Entry 56 of List I and Entry 17 of List II – Distinction between, stated.
Constitution of India, Art. 262, Sch. 7, List I, Entries 56, 97, List II, Entry 17.
Article 262 gives exclusive power to the Parliament to enact a law providing for the adjudication of disputes relating to waters of inter-State river or river valleys. The disputes or complaints for which adjudication may be provided relate to the “use, distribution or control” of the waters of, or in any inter-State river or river valley. The words “use”, “distribution” and “control” are of wide import and may include regulation and development of the said waters. The provisions clearly indicate the amplitude of the scope of adjudication inasmuch as it would take within its sweep the determination of the extent, and the manner, or the use of the said waters, and the power to give directions in respect of the same. The language of the Article has further to be distinguished from that of Entry 56 of List I and Entry 17 of List II. Whereas Art. 262 (1) speaks of adjudication of any dispute or complaint and that too with respect to the use, distribution or control of the waters of or in any inter-State river or river valley Entry 56 of List I speaks of regulation and development of inter-State rivers and river valleys. Thus the distinction between Article 262 and Entry 56 of List I is that whereas former speaks of adjudication of disputes with respect to use, distribution or control of the waters of any inter-State rivers and river valleys, Entry 56 of List I speaks of regulation and development of inter-State rivers and river valleys. Entry 17 of List II likewise speaks of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I. It does not speak either of adjudication of disputes or of an inter-State river as a whole as indeed it cannot, for a State can only deal with water within its territory.
The provisions of Inter-State Water Disputes Act clearly show that apart from is title, the Act is made by the Parliament pursuant to the provisions of Art. 262 of the constitution specifically for the adjudication of the disputes between the riparian States with regard to the use, distribution or control of the waters of the Inter-State rivers or river valleys. The Act is not relatable to Entry 56 of List I and, therefore, does not cover either the field occupied by Entry 56 of List I or by Entry 17 of List II. Since the subject of adjudication of the said disputes is taken care of specifically and exclusively by Article 262, by necessary implication the subject stands excluded from the field covered by Entry 56 of Lists I and 17 of List II. It is not, therefore, permissible either for the Parliament under Entry 56 of List I or for a State Legislature under Entry 17 of list II to enact a legislation providing for adjudication of the said disputes or in any manner affecting or interfering with the adjudication or adjudicatory process of the machinery for adjudication established by law under Article 262. This is apart from the fact that the State legislature would even otherwise be incompetent to provide for adjudication or to affect in any manner the adjudicatory process or the adjudication made in respect of the inter-State river waters beyond its territory or with regard to disputes between itself and another State relating to the use, distribution or control of such waters. Any such act on its part will be extraterritorial in nature and, therefore, beyond its competence.
It cannot be said that the topic use, distribution and control of waters of an inter-State river must be deemed to be covered by Entry 97 of List I. This is so firstly because the expression “regulation and development of inter-State rivers and river valleys” in Entry 56 of List I would include the use, distribution and allocation of the waters of the inter-State rivers and river valleys between different riparian States. Otherwise the intention of the Constituent Assembly to provide for the Union to take over the regulation and development under its control makes no sense and serves no purpose. What is further, the River Boards Act, 1956 which is admittedly enacted under Entry 56 of List I for the regulation and development of inter-State rivers and river valleys does cover the field of the use, distribution and allocation of the waters of the inter-State rivers and river valleys. This shows that the expression “regulation and development” of the inter-State rivers and river valleys in Entry 56 of List I has legislatively also been construed to include the use, distribution or allocation of the waters of the inter-State rivers and river valleys between riparian States. Moreover to contain the operation of Entry 17 of List II to the waters of an inter-State river and river valleys within the boundaries of a State and to deny the competence to the State legislature to interfere with or to affect or to extend to the use, distribution and allocation of the waters of such river or river valley beyond its territory, directly or indirectly, it is not necessary to fall back on the residuary Entry 97 of List I as an appropriate declaration under Entry 56 of List I would suffice. The very basis of a federal Constitution like ours mandates such interpretation and would not bear an interpretation to the contrary which will destroy the constitutional scheme and the Constitution itself. Although, therefore, it is possible technically to separate the “regulation and development” of the inter-State river and river valley from the “use, distribution and allocation” of its water, it is neither warranted nor necessary to do so. It is thus clear that the inter-State Water Disputes Act, 1956 can be enacted and has been enacted only under Article 262 of the Constitution. It has not been enacted under Entry 56 of List I as it relates to the adjudication of the disputes and with no other aspect either of the inter-State river as a whole or of the waters in it.