The Madhya Pradesh High Court Bench of Chief Justice Shri A.K. Patnaik and Shri
P.K. Jaiswal today unequivocally judged the work of land acquisition and canal
excavation for Omkareshwar and Narmada Sagar (ISP) canals of two giant dams
mainly on the grounds that the Provisions of Panchayats (Extension to Scheduled
Areas) Act 1996, enacted in pursuance of Article 243 of the Constitution is not
executed and consultation of Gram Sabhas has not been done.
The Hon’ble Bench of the Chief Justice of M.P. thereby ordered through an
interim judgement, a STATUS QUO on all work related to excavation on canals and
acquisition of lands of the farmers in the Narmada valley.
The Judgement refers to Article 243 M-4(b) of the Constitution which gives
powers to the Parliament to pass any law that would extend Article 243 and Part
IX of the Constitution to scheduled areas with modifications and exceptions, if
any. The PESA Act, 1996 that was brought under this had the non-negotiable
features including Clause 4 (i), making the Gram Sabha consultation once before
land acquisition and again before resettlement and rehabilitation as mandatory.
The same was, therefore, to be reflected in the ameondments to the state level
Panchatyat Raj Act. However, the Madhya Pradesh amendment to the M.P.
Panchayati Raj Evam Gram Swaraj Adhiniyam, 1997 did not reflect the said
The Judgement therefore considers this as ultra vires of the Constitution. It
also refers to the cost incurred on these canal projects and contracts engaged
which was brought out by the Counsels for Respondents, but states that if no
corrective actions is taken and intervention made at this point there would be
further wastage, since, if it is proved that the Constitution is violated, then
all the lands acquisitioned will have to returned back to the original owners.
The judgement was delivered today at Jabalpur after hearing the counsels for
the GoMP and NVDA Mr. V.K. Shulkla and Advocate Ravish Agarwal as also Smt.
Medha Patkar for the petitioners on behalf of Narmada Bachao Andolan. Advocate
on record is Mr. Raghavendra Kumar. The Respondents have been directed to file
detailed reply by the 31st of July, 2009 and the matter has been posted to the
4th of August for further hearing.
This interim judgment is indeed a historic milestone in the decades long
struggle of adivasis to actualize their right to be consulted in the
development planning process, through their participation in the Gram Sabhas,
reflecting the true democratic mandate of the Indian Constitution, incorporated
through the 73rd amendment in 1992 and PESA Act in 1996 and will pave the way
for a truly democratic and sustainable development.
Shrikanth, Ashish Mandloi, Bheeluram Yadav
(09423965153 / 9179148973) (07290-222464)