NARMADA BACHAO ANDOLAN ETC. ETC. v. UNION OF INDIA AND ORS.

A

OCTOBER 18, 2000

B

Constitution of India-Articles 32 and 226-Public Interest litigation- Scope of-No directions can be issued which are against legal provisions. c Constitution of India-Articles 32 and 226-Judicial Review-Scope of-Courts cannot transgress into the field of policy decision-Government deciding to construct a dam-No violation of law or malafide--Held, Courts cannot sit in appeal over the policy decision of the Government.

D Constitution of India-Articles 32 and 226-laches-Project for construction of dam approved 25 years ago-Huge investments made- Petitioner agitating against construction since 1986-Writ Petition filed in 1994-Held, Petitioner cannot challenge the construction after such lapse of time.

E Constitution of India-Article 32-Public Interest litigation-Petitioner challenging the construction of a dam on the ground that adequate steps were not taken for relief and rehabilitation of the oustees and that the adverse environmental effects were not taken into account-Award of Tribunal constituted under Inter States Water Disputes Act, 1956-Award laying down F the measures to, be taken for relief and rehabilitation of the oustees-Several authorities set up for monitoring the implementation of the Award as per the direction of the Tribunal-Authorities to see that measures to protect environment are also taken-Held, relief and rehabilitation and environmental concerns had been taken care of-Courts can only see if the Authorities are discharging their duties or not. G Environment (Protection) Act, 1986-Section 3-Decision to construct a dam-Environmental clearance given on the basis of available studies and surveys which were not complete-Conditions imposed to complete environmental safeguards pari passu with the project work-Held, the environmental clearance cannot be said to be invalid-Constitution oflndia- H 94

NARMADA BACHAO ANDOLAN v. U.0.1. 95 Article 32. A Environment (Protection) Act, 1986-Section 3-Polluting industries __.__ and projects-Precautionary Principle and Polluter-pays principle- Applicability of-Held, would be applicable if the extent of damage likely to• be caused is not known-Burden of proof-Held, would be on the person who wants to change the status quo if the extent of damage likely to be B caused is not known-Indian Evidence Act, 1872-Section 102.

Inter State Water Disputes Act, 1956-Section 5(2) and 5(4)-Award of the Tribunal-Final and binding on parties-Third party cannot challenge the Award c The Petitioner was agitating against the construction of the Sardar Sarovar Dam since 1986. In the present case the Petitioner had challenged the decision of the Govemment of India and the concerned State Governments to construct the dam in the Narmada river basin by way of the present Writ Petition filed in 1994. D The idea of development of the Narmada river system was first mooted in 1946. The State of Gujarat granted administrative clearance Stage I of the project in 1961. The project was inaugurated on 5.4.1961 and preliminary work started. However, due to disagreement between the concerned States the project could not be implemented. E The State of Gujarat filed a complaint under Section 3 of the Inter States Water Disputes Act, 1956 stating that water dispute had arisen between the State of Gujarat and the States of Madhya Pradesh and Maharashtra over the use, distribution and control of the waters of Narmada river. The Government of India constituted a Tribunal and referred the dispute to the Tribunal. F While the dispute was still pending before the Tribunal, a forma.1 agreement was entered into on 12.7.1974 between the Chief Ministers of the States of Madhya Pradesh, Maharashtra and Rajasthan and the Advisor to the Governor of Gujarat sorting out several issues which the Tribunal would otherwise have decided. However, dispute in respect of the height of the dam G remained. The parties to the agreement agreed that the Tribunal would decide the said issue of height after considering the submission of the parties. If was also noted that the Narmada project should no longer be delayed in the best regional and national interests.

The Tribunal declared its final award on 7.12.1979. The Tribunal H

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A examined the issues regarding allocation, height of the dam, hydrology and other related issues. The Tribunal decided that the height of the Sardar Sarovar Dam would be at Full Reservoir Level 455 feet. The Tribunal issued directions regarding submergence of land, acquisition of land and the .i....., rehal:»ilitation of displaced persons. The Tribunal directed that no submergence of any area should take place unless tht oustees are B rehabilitated. The Tribunal further directed constitution of Narmada Control Authority, an inter State administrative authority, for the purpose of securing compliance with and implementation of the decision and directions of the Tribunal. The Tribunal also directed constituting a Review Committee consisting of the Union Minister for Irrigations as its Chairperson and the C Chief Ministers of Madhya Pradesh, Gujarat, Maharashtra and Rajasthan as its members. The Review Committee could review the decisions of the Narmada Control Authority and the Sardar Sarovar Construction Advisory Committee.

In order to carry out the directions of the Award. The Inter States Water D Disputes Act, 1956 was amended and Section 6-A was inserted. Thereafter, the Government of India framed a scheme and constituted Narmada Control Authority to give effect to the Award of the Tribunal. In 1987 the Narmada Control Authority created independent machinery of Environment Sub-group to ensure that the environmental safeguards were properly planned and implemented.

On 15.12.1980, the Central Water Commission referred the Sardar Sarovar Project to the Department of Science and Technology for environmental clearance. A meeting of the Environment Appraisal Committee of the Department of Environment was held on 12.4.1983 in which the project was in principle approved.

In January J 985, the Department of Environment and Forests of the Government of India issued "Guidelines of Environmental Impact Assessment of River Valley Projects". The Guidelines noted the undesirable consequences of the river valley projects and the need to consider the environmental aspects along with other feasibility considerations. According to the Guidelines the cost of proposed remedial and mitigative measures, such as compensatory afforestation, to protect the environment had to be included in the cost of the project. The Guidelines stipulated that the Union of- India should give environmental clearance only after a) all the necessary data in respect of the environmental impact of the project had been collected and assessed; (b) the

NARMADA BACHAO ANDOLAN v. U.0.1. 97 assessment showed that the Project could proceed; and (c) the environmental safeguard measures, and their cost, had been worked out.

Thereafter, there were several meetings convened by various ministries for discussing issues relating to environment. In October, 1986 the Ministry of Water Resources forwarded a Note to the Ministry of Environment and Forests detailing the surveys/studies as well as work remaining to be done along with the time schedule therefor. The Note observed that delay was being caused due to inadequacy of the material for evaluation of the environmental impact of the project. It was opined in the said report that considering the importance and the urgency of the project and its benefits so far as power and irrigation facilities are concerned, it should be cleared from the C, environmental angle, subject to conditions and stipulations.

The Department of Environment and Forests made its own assessment and opined that formulation of catchment area programme, wildlife census by the Zoological Survey of India and survey by the Botanical Survey of India would take about three years. It finally decided that ifthe Government should decide to go ahead with the project it should be done with the provision of environment management authority with adequate power and teeth to ensure that environment management plan is implemented Pari passu with the engineering and other works.

The matter relating to grant of environmental clearance was referred to the Prime Minister's Secretariat for clearance.

On 19.12.1986 the Secretary, Ministry of Environment and Forests sent a Note to the Secretary to the Prime Minister on the environment aspects of the Narmada Sagar Project and Sardar Sarovar Project. In the Note, it was mentioned that due to inadequacy of the available data, it was not possible to assess the impact of the loss of habitat on the wildlife and the overall loss of biological diversity and genetic reserves. It was mentioned that the projects were at fairly advanced stages of preparedness. The Note recommended the ,;l establishment of Narmada Management Authority with adequate powers and teeth to ensure that the Environmental Management Plan did not remain only on paper but was implemented pari passu with the engineering and other works.

The Additional Secretary to the Prime Minister prepared a Note dated 15.1.1987. The Note mentioned that the Department of Environment and Forests had recommended conditional approval of the project. The Prime H

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A Minister opined that it was perhaps good time to try for River Valley Authority. On 24.6.1987 the Ministry" of ,Environment and For_ests granted ·conditional approval to the projects. The conditions stipulated that

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

(ii) The surveys/studies assured would be carried out as per the proposed schedule.

C (iii) The Catchment Area treatment programme and the rehabilitation plans would be so drawn as to be completed ahead of reservoir filling.

(rv) The Department of Environment and Forests should be kept informed of the progress on various works periodically. D On 5.I0.1988 the Planning Commission approved investment in the project with the direction to comply with the conditions laid down in the environmental clearance of24.6.1987.

Before this Court the Petitioner contended :- E HEIGHT OF THE DAM

I. Having regard to the hydrology, the finding of the Tribunal is not correct and the height of the dam should be reduced from 455 feet. (This argument was also advanced by the State of Madhya Pradesh.) F DISPLACEMENT OF TRIBALS

2. The forcible displacement of the tribal population from the project affected area was not in the national or public interest. It was in violation of Article 21 of the Constitution of India. It was also in violation of Article 12 of the ILO Convention, to which India was a signatory, which stipulated that the tribal population should not be removed from their lands without their free consent except in accordance with national laws and regulations or reasons relating to national security or in the interest of national economic development. Article 12 further stated that when the removal of the tribal population was necessary as an exceptional measure, they should be provided with land of quality at least equal to that of the land previously occupied by

NARMADA BACHAO ANDOLAN v. U.0.1. 99 them and they should be fully compensated for any resultant loss or injury. A According to the Petitioner, .the Respondents had not shown that the displacement of the tribal population was required as an exceptional measure.

3. The projects were not in the best national interest and was not a solution to water problems. The projects would touch only the fringes of the drought prone areas of Kutch and Saurashtra. B -. RELIEF AND REHABILITATION

4. As a result of construction of the dam over 41000 families and 245 villages would be affected. The authorities have considered only the families affected by submergence as project affected families. There is no scheme for c rehabilitation of several other families that would be affected by the project.

5. The Narmada Control Authority has under estimated the total number ... of affected families and the land required for these families' rehabilitation• D

6. The relief and rehabilitation p,,:1'..ages in the different States were -- different thereby restricting the choice of the oustees. This would lead to a situation where the oustees would be forced to shift to Gujarat, where the rehabilitation package was more favourable.

7. There were a large number of persons living in the submergence E area who were not farmers and would lose their livelihood due to loss of the community and/or river. They were not being properly rehabilitated.

8. There was a need for an independent monitoring agency in respect of re-settlement & rehabilitation as the Re-settlement & Rehabilitation Sub- group merely endorses the assertions made by the Government. F

9. There was a clear requirement laid down by the Tribunal of village- wise communication rehabilitation in respect of the State of Gujarat. The ' ,.._ oustees were not offered a chance to re-settle in Gujarat as a community and thus the order of the Tribunal was violated. G

10. There was no provision for grazing land and fuel wood for the project affected families.

J J. The rehabilitated people did not have adequate facility of irrigation at the place of their rehabilitation. H

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A ENVIRONMENTAL CLEARANCE

12. The environmental clearance given to the project in 1987 was without proper application of mind. The relevant surveys/studies were not available at · the time of granting of the environmental clearance.

B 13. As the deadline for completion of the studies was not met till 1990, the Ministry of Environment and Forests had declared that the environmental clearance given to the project had lapsed. The Ministry of Environment and c Forests made a request to the Ministry of Water Resources for seeking extension of the clearance but ultimately no extension was sought and given.

OTHER ENVIRONMENTAL ISSUES ..

14. As per the letter dated 24.6.1987 whereby environmental clearance was given to the project, the catchment area treatment programme was not to be done pari passu but was required to be completed before impoundment. D However, the impounding began in 1994 and the catchment area treatment programme had not been completed by then.

15. That there was need for some independent agency to examine the various studies and action plans because if the studies and plans were not properly done or implemented, the 'area, which were supposed to benefit, would E end up being rendered unfit for cultivation.

16. The compensatory afforestation was being carried outside the project impact area and on wastelands or lesser quality land, which would result in forest of a lesser quality.

F 17. The downstream impacts of the project would destroy fisheries and will result in salt-water ingress.

18. The area of submergence would include several sites of archaeological importance and the.construction of the dam would mean loss of rich historical legacy. G

19. The impact of the project on the flora and fauna would be severe. The studies in respect of flora and fauna had been completed only recently and action plans were still awaited in many cases.

20. The project would have serious impacts on health around the submergence area and in the command area.

NARMADA BACHAO ANDOLAN v. U.0.1. 101

21. The Ministry of Environment and Forests has abdicated i.ts responsibility by accepting the studies and progress report of the Environmental Sub-group at the face value and without verification.

Dismissing the Writ Petition by majority, the Court

- PUBLIC INTERFST LITIGATION

I.I. Public Interest Litigation 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 Public Interest Litigation C jurisdiction has been ballooning so as to encompass within its ambit subjects such as probity in public life, granting of largesse 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 Interest Litigation. (218-C-DI D 1.2. While exercising jurisdiction in Public Interest Litigation 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 E 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. (218-E-Fl

JUDICIAL REVIEW F 2.1. 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 framework a fairly clear demarcation of powers. The Court has come down heavily whenever the executive has sought to impinge upon the Court's jurisdiction. At the same G 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 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 H

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A 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. 1218-F-H; 219-A-Bl

B 2.2. 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 ofa small section - of the society, has to be the concern of a responsible Government. If a C considered policy decision has been taken, which is not in conflict with any J law or is not ma/a fide, it will not be in public interest to require the Court to go into and investigate those areas which are the functions of the executive. 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 away, sit in appeal over such a policy decision. 1219-B-El

2.3. 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 people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution.1217-G-H; 218-AI

LACH ES F 3.1. Any challenge to a policy decision relating to an infrastructural project 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 G be thrown out at the very threshold on the ground of laches 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 Public Interest Litigation does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them. 1218-A-B)

H 3.2. The Petitioner which had been agitating against the dam since 1986

NARMADA BACHAO ANDOLAN v. U.0.1. 103 is guilty of laches in not approaching the Court at an earlier point of time. A The Narmada project, in principle, was cleared more than 25 years ago. After the environmental clearance was given 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. 1136:H, E, Gf B 3.3. When such projects are undertaken and hundreds of crores of I public money is spent, individual or organisations in the garb of Public Interest iiiiiiilL Litigation cannot be permitted to challenge the public 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. 1137-A-Bf

HEIGHT OF THE DAM

4.1. 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. Any issue which has been decided by the Tribunal would, in law, be binding on the - respective States. Once the Award is binding on the States, it will not be open to a third party like the Petitioner to challenge the correctness thereof. E 1138-B-C; 139-Df

The State of Karnataka v. State of Andhra Pradesh and Ors., 120001 9 sec 572, relied on. 4.2. One of the indicators of the living standard of people is the per capita F - consumption of electricity. There is, however, perennial shortage of power in India, and therefore, it is necessary that the generation increases. In India 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 G greenhouse effect has become a major cause of concern. On the other hand, the hydel power's 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. 1224-E-H; 225-AI H

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A DISPLACEMENT OF TRIBALS

5.1. The rehabilitation package contained in the Award of the Tribunal as improved further by the State of Gujarat and the other States primafacie shows that the land required to be allotted to the tribals is likdy to be equal, if not better, than what they had owned. 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. Article 12 of the ILO Convention clearly suggested that when the removal of the tribal population is necessary as an exceptional measure, they shall be provided with land of quality at least equal to that of the land previously occupied by them and they shall be fully compensated for any resultant loss or injury. (143-H; 144-A; 143-D; 143-G-Hl 5.2. 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. (145-G-Hl 5.3. The allegation that the Sardar Sarovar Project was not in the national or public interest is not correct. Dams play a vital role in providing irrigation for food security, domestic and industrial water supply, hydroelectric power and keeping flood waters back. There would be a positive impact on preservation of ecology as a result from the project. The project by taking water to drought-prone and arid areas 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, fluof'.ide and nitrite affected water and vanishing green cover. There will be improvement of fodder availability, which will reduce pressure on diversity and vegetation. The Sardar Sarovar Project by generating elean eco- friendly power will save the air pollution which would othern:ise take place by - generation power of similar capacity. (144-A; 144-E; 145-D-F)

6.1. In governance of the State, decisions have to be taken where there are conflicting interest. If for one set of people there were only one solution,

NARMADA BACHAO ANDOLAN v. U.0.1. 105 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. 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. [220-C-DJ

6.2. Displacement of people living on the proposed project sites and the areas to be submerged is an important issue. 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. A properly drafted relief and rehabilitation plan would improve living standards of displaced persons after displacement. The relief and rehabilitation packages of the States, especially of Gujarat, are such that the living conditions of the oustees will be much better than what they had in their tribal hamlets. [221-C-E; 221-H; 222-AI D > 7.1. 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 Award's implementation and not to stop the execution of the project. [222-H; 223-Al

7.2. This Court, as a Federal Court of the country especially in a case of Inter-State river dispute where an Award had been made, has to ensure that the bindh1g 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 re-settlement and rehabilitation 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. 1223-A-C)

8. 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, H

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A required re-settlement and rehabilitation, on the other hand, most of the people falling under the command area were in fact beneficiaries o£the projects and their remaining land would get relocated with the construction of the canal leading to greater agricultural output. (193-D-E)

9. There appears to be no material on which it can be concluded that no B proper surveys had been carried out for determining the number of project affected families who would be adversely affected by the construction of the dam. Each State has drawn detailed action plan and it is after requisite study had been made that the number of project affected families have been identified. (1931-G-H; 192-Al

C 10. It is incorrect to say that the difference in relief and rehabilitation packages, the package of Gujarat being the most liberal, amounts to restricting the choice of the oustees. Relief and rehabilitation packages in different States were different due to different geographical, local and economic conditions and availability of land in the States. The liberal packages D available to the Sardar Sarovar Project oustees in Gujarat are not available to the project affected people of other projects in Gujarat. Each State has its own package and the outsees have an option to select the one which was most attractive to them. There is no requirement that the liberalisation of the packages by States should be to the same extent. (192-B-D)

E 11.1. There is no basis for contending that some outside agency or National Human Rights Commission should see to the compliance of the Tribunal Award. There is 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 F the 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 redres~ed. (196-E-GJ

G 11.2. Dam has 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 are to be regarded as a policy decision. Once such a considered decision is taken, the proper execution of the same should H be taken expeditiously. It is for the Government to decide how to do its job.

NARMADA BACHAO ANDOLAN v. U.0.1. 107 When it has put a system in place for the execution of a project and such a 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. (217-B-DJ

12.1. The requirement in the Tribunal's Award was that the State of Gujarat should establish rehabilitation villages in Gujarat in the irrigation B 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. Subsequent to the Tribunal's C Award, on the recommendation of the World Bank, the Government of Gujarat adopted the principle that resettlement of the oustees should be relocated as village units, village sections or families in accordance with the oustees' preference. The oustees' choice has actively guided the resettlement process. 1193-F-HJ D 12.2. While re-settlement as a group in accordance with the outstees' 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 resettled. These objectives were easily achievable if they were resettled 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 Tribunal's Award stipulated and one objective could not be seen in isolation of the other objectives. [194-EJ

12.3. The underlined principle in forming the relief and rehabilitation policy was not merely of providing land for project affected families but there was a conscious effort to improve the living conditions of the project affected families and to bring them into the mainstream. If one compares the living conditions of the project affected families in their submerging villages with the rehabilitation packages first provided by the Tribunal's Award and then liberalized by the States, it is obvious that the project affected families had gained substantially after their resettlement. 1194-H; 195-AJ

13. Grazing land was not mandated or provided for in the Tribunal's Award but nevertheless, the grazing land ofsix villages was available for use of project affected families. It may be that the grazing land was inadequate H

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A 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 provisions of the Award. (195-FJ

14. Most of the resettlement 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. (195-G-Hl

IS. 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. The State of D Madhya Pradesh seems to be in no hurry in taking steps to effectively rehabilitate the project affected families in their home State. The State of Madhya-Pradesh is under an obligation to effectively resettle those oustees whose choice is not to go to Gujarat. (212-G; 214-C-Fl

ENVIRONMENTAL CLEARANCE E 16.1. ft is not possible to accept the contention of the Petitioner that the environmental clearance of the project was given without application of mind. 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. The Government was aware of the fact that number of studies and F 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. (160-G-H; 161-Al

G 16.2. At the time when the environmental clearance was granted by the Prime Minister whate\'·er 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 had been carried out. There are different facts of environment and if in respect of a few of them adequate data was not available it does not mean

NARMADA BACHAO ANDOLAN v. U.0.1. 109 that the decision taken to grant environmental clearance was in any way vitiated. The clearance required further studies to be undertaken and 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 oftlte dam. (177-D-Fl B

17. There could not have been any question of the environmental clearance granted to Sardar Sarovar Project being lapsed more particularly when the Environmental 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. (164-C-D)

OTHER ENVIRONMENTAL ISSUES

18. Environmental and ecological consideration must, of course, be given due consideration but with proper channellisation of developmental activities ecology and environment can be enhanced. 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 not 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. (222-D; 222-FJ

19.1. 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 polluting or other project or industry where the extent of damage likely to be inflicted is not known. When th.ere 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 offset the same. Merely because there will be a change is no reason to presume that there will be ecological disaster. (175-H; 176-A-BI H

110 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A A.P. Pollution Control Boardv. Professor M. V. Mavadu, (199912 SCC 718; Sierra Club et. v. Robert F. Froehlke, 350 bF. Supp. 1280 (1973); Tennessee Valley Authority v. Hiram G. Hill, 437 US 153, 57 L Ed 2d 117; Arlington Coalition on Transportation v. John A. Volpe, 458 F.2d 1323 (1972) and Environment Defence Fund, Inc. v. Corps of Engineers of United States B Army 325 F. Supp. 749 (1971), distinguished.

Vellore Citizens' Welfare Forum v. Union of India, (199615 SCC 647, referred to.

19.2. In the present case, what is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry. The C 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. (176-C-DJ

20. The environmental clearance of24.6.1987 required the work to be dont: pari passu with the construction of the dams 'and the filling of the reservoir. The Respondents had proceeded on the basis that the requirement in the letter of24.6.1987 that catchment area treatment programme and rehabilitation plans be drawn up and completed ahead of reservoir filling would imply that the work are to be done pari passu as far as catchment area treatment programme is concerned, with the filling of reservoir. The status of compliance with respect to pari passu conditions shows that the overall works by and large were on schedule though, there was some ·slippage in Madhya Pradesh. (167-D-FJ

21. 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 studies made. (166-HI

G 22.1. Loss of forest because of any activity is undoubtedly harmful. 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 (222-A-BI H 22.2. Wltile granting approval in 1987 to the submergence of forest

NARMADA BACHAO ANDOLAN v. U.0.1. 11 r land and/or diversion thereof for the Sardar Sarovar Project, the Ministry of A 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 The State of Gujarat had fully complied with the condition by raising afforestation. If afforestation was taking place on wasteland or lesser quality land, it did not necessarily follow, as was B contended by the Petitioners, that the forests would be of lesser quality or quantity. (168-C-DJ

23. 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 C question of adverse downstream impact and the Petitioner's assertions in this regard are ill-conceived. In 1992 Sardar Sarovar Narmada Nigam Limited issued an approach paper on environmental impact assessment for the river reach downstream. The report clearly demonstrates that the construction of dam would result into more regulated and perennial flow into the river with an overall beneficial impact. (168-H; 170-A; 170-BI D

24. No centrally or state protected cultural sites were located in the submergence area of the project. The concerned State Governments carried out a complete survey of cultural and religious sites within the submergence zone to list all Archaeological sites which, though not protected under national law, were of sufficient value to merit relocation. (171-Al

25. A condition of environmental clearance of 24.6.1987 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 measures. A number of studies were carried out which indicated that with the construction of the dam, water availability and soil moisture will increase and support varieties of plants and animals. (172-E-F(

26. The area of public health was in no way being neglected. The principle features of the Gujarat Work Plan included establishment of a G hospital near the dam site, strengthening of laboratory facility including establishment of mobile unit residual insecticidal spraying operations etc. (173-C(

27. There is no reason to conclude that the Environmental Sub-group is not functioning effectively. The group which is headed by the Secretary, H

112 SUPREME COURT REPORTS (2000] SUPP. 4 S.C.R.

"· A Ministry of Environment and Forests is a high powered body whose work cannot be belittled merely on the basis of conjectures or surmises. 1174-F)

DIRECTIONS

I. Construction of the dam will continue as per the Award of the Tribunal. . 1225-G) - B

2. 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 C Rehabilitation Sub-group. The Relief and Rehabilitation Sub-group will give clearance of further construction after consulting the three Grievances Redressal Authorities. 1226-B)

3. 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. 1226-C)

4. The permissfon 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. (226-D)

5. The States of Madhya Pradesh, Maharashtra and Gujarat are directed 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 Narmada Control F Authority or the Review Committee or.the Grievances Redressal Authorities. (226-F)

6. The Environment Sub-group will continue to monitor and ensure.that all steps are taken not only to project but to restore and improve the environment. [226-G) G

7. The Narmada Control Authority within four weeks shall 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 H the Narmada Control Authority and in the event of any dispute or difficulty

NARMADA BACHAO ANDOLAN v. U.0.1. 113 arising, representation may be made to the Review Committee. However, each A State shall be bound to comply with the directions of the Narmada Control

- Authority with regard to the acquisition of land for the purpose of relief and rehabilitation to the extent and within the period specified by the Narmada Control Authority. (226-H; 227-A-B)

8. 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 Narmada Control Authority. 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 relief and rehabilitation 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. [227-C-DI

9. The Grievances Redressal Authorities will be at liberty, in case need arise, to issue appropriate directions to the respective States for. due implementation of the relief and rehabilitation programmes and in case of non implementation of its directions, the Grievances Redressal Authorities will be at liberty to approach the Review Committee for appropriate orders. (227-El

10. Every endeavour shall be made to see that the project is completed as expeditiously as possible. [227-El

Per Bharucha, J. (dissenting)

1. When the Writ Petition was filed by the Petitioners, the process of relief and rehabilitation, such as it was, was going on. The Writ Petitioners F were not guilty of any laches in that regard. When the public interest is so demonstrably involved, it would be against public interest to decline relief only on the ground that the Court was approached belatedly. (246-A-B]

2. The catchment area treatment programme and the rehabilitation plans were required to be "so drawn as to be completed ahead of reservoir filling". G What the clause as drawn required was that the catchment area treatment programme and the rehabilitation plans should be drawn in such a manner that the catchment area treatment and the rehabilitation works would be completed ahead ofimpoundment in the reservoir. This, plainly, was intended to offset, so far as was possible in the circumstances, the adverse effect of the impoundment of water in the reservoir upon the catchment and those who were H

114 SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A required to be settled elsewhere. In fact, the impoundment began much before. (242-C-D)

3.1. The environmental clearance was based on next to no data in regard to the environmental impact of the Project and was contrary to the terms of the then policy of the Union oflndia in regard to environmental clearances -- B and, therefore, no clearance at all. (241-CI

3.2. Under its own policy, as indicated by the Guidelines of January, 1985 issued by the Department of Environment and Forests, the Union of India was bound to give environmental clearance only after, (a) all the necessary data in respect of the environmental impact of the Project had been collected and assessed; (b) the assessment showed that the Project could proceed; and (c) the environmental safeguard measures, and their cost, had been worked out. (242-H)

3.3. The contemporaneous Notes prepared by the Ministry of Water Resources and the Ministry of Environment and Forests leave no manner of doubt that the requisite data for assessment of the environment impact of the Project was not available when the environmental clearance thereof was granted. The Notes make clear that the studies, censuses, mapping of areas and field surveys for the collection of data for assessment of the environmental impact of the Project were likely to take a further 2 to 3 years. (241-A-CI E 3.4. The conditions upon which the environmental clearance was given were that detailed surveys and studies would be carried out and the Narmada Control Authority would ensure that "environmental safeguard measures" were planned and implemented pari passu with the progress of work on the Project. What the environmental safeguards measures the Narmada Control F Authority was to ensure were, and what their cost would be, was not known when the environmental clearance was given. There was, therefore, no way in which this cost could be included in the cost of the Project, which was a requirement of the Guidelines of January, 1985 of the Department of Environment and Forests. [241-F-G)

G 3.5. The fact that the environmental clearance was given by the Prime Minister and not by the Ministry of Environment and Forests, as it would ordinarily have been done, makes no difference at all. (242-GI

4. An adverse impact on the environment can have disastrous consequences for this generation and generations to come. This Court has in its judgments on Article 2 I of the Constitution of India recognised this.

NARMADA BACHAO ANDOLAN v. U.0.1. 115

This Court cannot place its seal of approval on the project without first ensuring that those best fitted tO do so have had the opportunity of gathering all necessary data on the environmentafimpact of the Project and of assessing it. They must then decide if environmental clearance to the project can be given, and, ifit can, what environmental safeguard measures have to be adopted, and their cost. (243-B) B

5. It should not be deemed that there is agreement to anything stated in the judgment of the majority for the reason that it has not been traversed in the present judgment. [246~C)

DIRECTIONS c

1. The Environmental Impact Agency of the Ministry of Environment and Forests of the Union of India shall forthwith appoint a Committee of Experts in the fields mentioned in Schedule III of the Environmental Impact Assessment Notification, 1994. (246-D)

- 2. The Committee of Experts shall gather all necessary data on the environmental impact of the Project. They shall be free to commission or carry out such surveys and studies and the like as they deem necessary. They shall D also consider such surveys and studies as have already been carried out. [246-E) E

3. Upon such data, the Committee of Experts shall assess the environmental impact of the Project and decide if environmental clearance to the Project can be given and, if it can what environmental safeguard measures must be adopted, and their cost. (246-F)

4. In so doing, the Committee of Experts shall take into consideration F the fact that the construction of the dam and other work on the Project has already commenced. (246-G)

5. Until environmental clearance to the Project is accorded by the Committee of Experts as aforestated, further construction work on the dam shall cease. [246-HJ G

6. The Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall ensure that those ousted by reason of the Project are given relief and rehabilitation in due measure. (247-AJ

7. When the project obtains environmental clearance each of the H

116 .SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall, after inspection, certify, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present leYel have already been satisfactorily rehabilitated and also that suitable vacant land for B rehabilitating all those who will be ousted by the increase in the height of the dam by another 5 meters is already in the possession of the respective States. [247-8-C]

8. This process shall be repeated for every successive proposed 5 mete'!" increase in the dam height. [247-D] c 9. If for any reason the work on the Project, now or any time in the future, cannot proceed and the Project is not completed, all oustees who have been rehabilitated shall have the option to ~ontinue to reside wher~ they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they shall not be made at all liable in monetary D or other terms., on this account. (247-E]

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 319 of I 994.

(Under Article 32 of the Constitution of India)

WITH E W.P. (C) Nos. 345/1994 and 104/1997, SLP (C) No. 3608/1985, TC(C) No. 3511995 and CA No. 6014/1994.

Harish N. Salve, Solicitor General, Shanti Bhushan, M.G. Barot, Ashok F H. Desai, T.R. Andhyarujina, C.S. Vaidyanathan, Anoop G. Chaudhary, K.N. Shukla, Prashant Bushan, Sanjeev Kapoor, Narinder Verma, Ms. S. Divya, K.R.R. Pillai, E.C. Agrawala, Mahesh Agrawala, Rishi Agrawala, Pallav Sisodia, Tufail A. Khan, P. Parmeshwaran, S.N. Terdol. A.K. Srivastava, B.K. Prasad, Kamal Trivedi, Ms. H. Wahi, Pratesh Kapoor, Subrat Birla, T.M. Pitale, D.M. Nargolkar, S.K. Agnihotri, Ashok Kumar Singh, Sushi! Kr. Jain Addi. General G for State of Rajasthan, A. Misra, Ms. Anjali Doshi, Ms. Madhurima Tatia, Pallav Sisodia and A.P. Medh for the appearing parties.