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

B 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 C 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 v. State of D 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 E 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. F A dispute or difference between two or more State Governments having arisen which is a water dispute ~nder 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 G 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 H Central Government or any State Government is of the opinion that

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 139

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 has to be given effect to, by them. The language of the provisions of Section 6 is clear and unambiguous and unequivocally indicates th.at 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 ~tate 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 E Issue decided by the Tribunal.

GENERAL ISSUES RELATING TO DJS-PLACEMENT OF TRIBALS AND ALLEGED VIOLATION OF THE RIGHTS UNDER ARTICLE 21 OF THE CONSTITUTION:

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A 3 SCC 42. In this connection, our attention was drawn to the ILO Convention l 07 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 wi.th lands of quality at least equal to that of lands previously occupied by them, suitabl~ 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 petitioner's assertion that there was large-scale, re-location and uprooting of tribals 'was not factually correct.

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.) 141

According to the respondents, the project would affect only 245 villages in A Gujarat, Maharashtra and Madhya Pradesh due to pondage and backwater effect corresponding to I in I 00 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 B 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 I 993 is as follows:

"Abadi will be fully submerged in 39 villages and partially in 116 C villages, agricultural land will be affected upto l 0% in 82 villages, l I to 25% in 32 villages, 26 to 50% in 30 villages, 51 to 75% in 14 villages, 76 to 90% in 4 villages and I 00% 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." D 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 ofNimad, 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 G 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 H

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A 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 vi II ages 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. l %. The reason for this is that the river be4 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 "'.l'hile agricultural land which is at a distance from the river banks is spared. A majority of33014 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, ag'ricultural land was to . be allotted-only ifthe 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% F 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 of28% 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 ofNimad 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:

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 143 "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. T~e 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 oftribals and weaker ~ections. 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 tetum 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 ~0pulation 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 equai, if not better, H

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A than what they had owned.

The allegat.ion 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, w~mld necessitate the need of2788 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 i;tlain source of water in India is rainfall which occurs in about 4 months in a year and the temporal distribution of rainfall is so un~ven 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 dC?mand 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. E 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 developm~nt is very low with only 3 to 4 Maf of waters being used by the ·F party States for irrigation and drinking water. against 28 Maf availability of water at 75% dependability as fixed by NWDT and about I 00 MW power developed. 85% of the waters are estimated as flowing waste to sea. The project will· provide safe and c'lean drinking water to 8215 villages and 135 towns in Gujarat and 131 villages in desert areas of Jalore district of Rajasthan, G 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 m 1990 and the following passage speaks for itself:

H "The argument in favour of the Sardar Sarovar Project is that the

NARMADA BACHAO ANOOLAN v. U.0.1. [KIRPAL, .I:) 145 benefits are so large that they substantially outweigh the ·costs of the A 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 escalatin~ B human deprivation, particularly in the dry ateas 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" C 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: !.. .. "

There is merit in the contention of the respondents that there would be a D positive impact on preservation of ecology as a result from the project. The SSP would be making positive contribution for preserv~tion of environment in several ways. The project by taking water to drought-prone and arid parts ofqujarat 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 H

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A unCler:

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

II. Whether the diverse environmental impacts of•he Sardar Sarovar Project ha.ve been properly stl}died and ·understood ? .. c Ill. Whether any independent authority· has examined the environmental costs and mitigative measures to. ~e undertaken in order to decide whether the environmental costs are acceptable and mitigative measures practical ? . ' IV. Whether the environmental conditions imposed .by the Ministry D 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 i!1 the concerned States wotild require a proper study and understanding of the environmental impacts. He E contended that the study and planning with regard to environmental impacts must precede construction. According. to Sh. Shanti Bhoshan, when the envirpnmental 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 F considered decision after taking into account the environmental impac!s 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 aµthority has examined vehemently the envirnnmental costs and mitigative measurers to be unpertaken in order to decide whether the environmental costs are acceptable and mitigative measures practical. With regard to tile enviro'!mental 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

NARMADA·BACHAO A!NDOLAN v: U.0.1. [KIRPAL, J.] 147

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 C 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 D 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. E 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 n.ot been properly considered or a~equately addressed. F 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." G 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. H

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A 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 ntere 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 CLEARANCE:

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. F 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 wi.th various aspects like engineering details, canal systems, geology of area, coverage of command area etc. On 15th February, J980 the Central Water Commission referred SSP to the then Department of ' • G 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: H (i) Excessive sedimentation of the reservoir

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 149 (ii) Water logging A (iii) Increase in salinity of the ground water

(iv) Ground water recharge (v) Health hazard-water borne diseases, industrial ponution etc. (vi) Submergence of important minerals B (vii)Submergence of monuments (viii) Fish culture and aquatic life (ix) Plant life-forests (x) Life of migratory birds c (xi) National Parle and Sanctuaries (xii) 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 F 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 G 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. H

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A After the project was approved, in principle, studies and collections of data were continuing. In May, 1983 the Namiada 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, develop~ent pla~ of the command, B 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 Govemment_ofGujarat, covering the issues as mentioned below: - *Climate c *Geology *Soil *Land use *Forest and Wildlife, Aquatic Vegetation D *Water Regime (Salinity, Tidal movements etc.) *Fisheries *Health *Seismicity

E 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 Environm~nt. 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 l' -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.

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.) 151

The consid.eration 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 I 0th June, 1_985 from the Chief Minister of Gujarat to the Mi,nister 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 Secrl!tary, Ministry of Environment and Forests who invited other high officials in a review meeting which was held on 31st December, 1985 under his chairmanship. C In this meeting, detailed presentations were made by the State officials of Gujarat, Madhya Pradesh and Maharasthra as well as the ex~erts who were involved in preparation of plans. The Secretary, Ministry of Environment and For~sts assessed and reviewed readiness on various environmental aspects like Catchment Area Treatment, Cpmpensatory Afforesation, Rehabilitation, Command area Development, Labour force and health issues, aquatic species, D seismicity etc. and discussed the available reports in detail in the prese~ce 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, J?eputy Inspector General, Assistant. Inspector General of Forest, Government of India, senior officers of the Ministry of Environment and Forests, Secretary, E Irrigation. As a follow up, the Government of Maharashtra submitted environmental data regarding affected areas in Maharashtra. This included:

*Impact assessment on wild life F *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 G afforestation for growing.

*Data regarding.alternate ·land in large blocks.

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

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A *Alternative fuels to the labourers.

*Micro-climatic changes.

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

B *Steps taken for preserving archaeological and historical monuments.

*Proper land use

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

C *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: D Forests and Wildlife Fish and Fisheries Health aspects

The work plan on forests and wildlife incorporated actions to be taken on the E 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 F 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 G 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

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 153

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: B I. Madhya Pradesh to complete the detailed survey of population likely to be affected in all phases of N.S.P. ...... Three years

2. Maharashtra to prepare a detailed rehabilitation plan for 33 villages under phase I of SSP .... Three years c

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

4. Survey of flora in Nannada valley assigned to Botanical Survey of India. .... Two years

5. Survey of Wildlife by Zoological Survey of India. .... Two years D

6. 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. E Pilot studies to detennine 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 otherwas to clear it with certain conditions with appropriate monitoring authorities to ensure that the action is taken within the time bound programme. F 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 G through a note of the Secretary, Ministry of Environment and Forests. It took the view that following surveys/stu~ies as set out therein might take at least 2-3 years. It noted in this regard that:

(i) The estimate of Ministry of Water Resources on analysis of aerial photographs and satellite imageries as 2-3 years. · H

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A . (ii) Catchme_nt area treatment programme can be fonnulated by three years thereafter; (iii) Wildlife census by Zoological Survey of India would take at least three years; ' (iv) Survey by Botanical Survey of India would take three years. B 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 I ensure that environment management plan is implemented pari passu with C engineering and other works. lt concluded that effective implementation of the engineering and environmental measures simultaneously will go long a way and that such a project could be implemented by. harmonizing environmental conservation needs with 'the developmental effort.

D The Ministry of Environment and Forests had not given environmental ciearance of N~rmada 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 Minister's 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 E Ministry of Environment & Forests. This led to the matter being referred to the P.rime Minister's Secretariat fo.r clearance at ~he 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 Min'istry of Environment and Forests after dealing with the environmental aspects relating F to rehabilitation, catchment area treatment, command area development, compensatory· afforestation, flora and .fauna. This note i.ndicated 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 a·nd the second option was that the project should be given the n_ecessary clearance subject to the stipulation with regard to the .. 4;.;..t

G action to be taken in connection with vario.us · environm~ntal aspects and appropriate monitoring arrangements to ensure that the actions were tak~n in a time bound manner. The Ministry of Water Resources recomm~ded 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 H of responsibility and frequent monitoring. The modus operandi for instituting

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 155 a monitoring system could be discussed at the meeting. A On 26th November, 1986, a meeting took place which was attended, inter a/ia, by the S.ecretary, Ministry of Water Resources, Secretary, Ministry of Environment & Forests, Additional Secretary, Prime MiRister Secretariat and representatives of the Governments of Madhya Pradesh and Gujarat regarding the environmental aspects of the Narmada Sagar and Sardar Sarovar B 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 C 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. D On 19th December, 1986, the Secretary, Ministry of En_vironment 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 a/ia, 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 E 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: F "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 G professional environmentalists, can be overcome. Effective implementation of the engineering and environmental measurers simultaneously would go a long way to prove ~hat even such a project can be implemented by harmonising environmental conservation needs with the development effort. H

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A 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 B l. Dam construction Rs. 1400 crores Rs. 4240 crores ( 1981 price level ) (1982·price level)

2. Loss of forest Rs. 320 crores -r- c 3. Environmental cost of loss of forests Rs. 30923 crores + - Rs. 8190 crores ~

4. Catchment area development Rs. 300 crores Not available

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

6. Loss of Mineral Reserves

7. Diversion of 42 km Railway line

8Copy pinpoint8. Population affected 129396 (1981 census) 86572 (Excluding ropulation with land submerged for short period every year)

9Copy pinpoint9. Land submerged 91348 ha 39134 ha

Benefits

10Copy pinpoint10. Area irrigated 123000 ha 1792000 ha Net culturable land 140960 ha 2120000 ha

11Copy pinpoint11. Power Generations 223.5 MW(firm power) 300 MW I 000 MV (Installed 1450 (Installed capacity) 118.3 MW in 2023 A.O." After a series of meetings held between the Secretary to Prime Minister's H office as well as the Ministry of Water Resources, a detailed note dated 15th

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 157 January, 1987 was prepared by Mrs. Otima Bordia, Additional Secretary to the A 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 developmerit, 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:

(i) Review of design parameters to examine the feasibility of modifying the height of the dam;

(ii) Preparation in due time, detailed and satisfactory plans for rehabilitation, catchment area treatment, compensatory afforestation and command area development; (iii) 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 ~~ E 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 F 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) G 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 Minister's approval was sought on giving conditional clearance. On this note, Mrs. Serla Grewal, Secretary to the Prime Minister noted as follows: H

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A "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 B Environment and Forests have recommended clearance of this project subject' to conditions which will take care of P.M's apprehensions. I shall request Secretary, Water Res~urces, who will be Chairman of the Monitoring Agency, to see that no violation of any sort takes place and P.M's office will be kept informed of the progress of this project c 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 appr?ve."

The Prime Minister Shri Raj iv Gandhi, instead of giving the approval, made D. 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 bver 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 b~ 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 Minister's Office dated 2nd May, 2000, some correspondence exchanged between Legislature and the Prime Minister has also been placed on record

NARMADA BACHAO ANDOLAN v. U.O.I. [KIRPAL, J.] 159

relating to the granting of the environmental clearance by the Prime Minister. A 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 a/ia, 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 Tribunal's Award, Mrs. Indira Gandhi had cleared the project in 1978, but B 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: C "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 D 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, E 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 F 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 G 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 peopJe 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 H

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A 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 B 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 Nannada project and it was stated that the dry land of Gujarat and Saurashfra would be fertilised through Nannada Vojna. 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 E · environmental aspects of the Nannada 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 Minister's Secretariat and the concern of the Prime Minister with regard to the environment and F desire to safeguard the interest of the tribals resulted in some time being taken. The Prime Minister gave environmental clearance on 13th April, I 987 and formal letter was iss1,1ed thereafter on 24th June, 1987.

It is not possible, in view of the aforesaid state of affairs, for this Court G 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 H clearance and in order to ensure that environmental management plans are

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.) 161

implemented pari passu with engineering and other works, the Narmada A Management Authority was directed to be constituted. This is also reflected from the letter dated 24th June, t 987 of Shri Mudgal giving formal clearance to the project:

Re: OTHER ISSUES RELATING TO ENVIRONMENT B 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 C June 24, 1987 were:

(a) The NCA would ensure that the environmental safeguard measures are planned and· implemented pari passu with the progress of work on the project. D (b) The detailed survey/studies assur~d will be carried out as per the schedule proposed and details made available to the department for assessment. (c) The catchment area treatment programme and rehabilitation plans be so drawn so as to be completed ahead of reservoir filling. E (d) 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. (a) 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. · (b) The second condition - the conducting of surveys by its very nature - could not be made time bound. Tile 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 H

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A shows that a large number of surveys were carried out right from 1983 and also after 1987. (c) The third condition has already stood fully complied with as observed by Environment Sub-Group. _. (d) 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 ar~ 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 a/ia, 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 E 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 thaj, 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 F 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 G 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 H fisheries and a revised action plan based· thereon be also sent \

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 163

expeditiously." A 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. E 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. F 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 St~te for Environment and Forests stating G 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 H

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A 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 17th September, 1993, the Minister of State for Environment B 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 C 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 D works done by the respective States in the matter of the status of studies, surveys and environmental action plans in relation with:

(i) phased catchment area treatment; (ii) compensatory afforestation;

E (iii) command area development; (iv) survey of flora, fauna etc. (v) archeological and anthropological survey; (vi) seismicity and rim stability of reservoir (vii) health aspects and F (viii) 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. G 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, t 9n where it was, inter a/ia, stated as follows:

H "The Morse Commission provided a draft of its report to the Bank for

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 165 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), ~ank management agrees with the description of the R&R situation in each of the three states and with the report's conclusions about the sh~rtcomings in the preparation and appraisal of the project's 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 peopl~s. D Efforts are being intensified to achieve this.

On envi.ronment, 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 matters in Gujarat. However, management does not share the review's 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 yide its letter dated 7th August, 1992 from the Secretary, Ministry of Environment and Forests did not accept the report and commented adversely on it G 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 H

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A 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 B 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 stYdies, 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. c 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 D 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; E - water quality; - forest loss; - potential impact on flora and fauna; - effects on public health; F - 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 ma:in objectives of carrying out these studies was to prevent excessive use of ground wa!er and water-logging. G There is no reason whatsoever as to why independent experts should be required to examine tl)e 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 H believe that they wou,ld not be able to handle any problem, if and when, it

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 167

arises or to doubt the correctness of the studies made. A It was submitted by Sh. Shanti Bhushan that the catchment area treatmem 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, I 987 wherein conditional environmental clearance was granted, inter alia, on the condition that "the catchment area treatment programme B 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 C · 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. H

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A 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.

B 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 C 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%.

D 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 suppl!' 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 I 0000 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 SarovarNarmada Nigam Limited issued an approach paper on environmental impact assessment for the river reach downstream. This provided technical understanding of the likely

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 169

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 I covers the period roughly from the completion of Sardar Sarovar Dam B 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 3 covers the period upto and beyond full basin development. The report given by Mis. H.R. Wallingford in March, 1993 in respect of the down stream impacts of Sardar Sarovar Dam observes, inter a/ia, as under:

"The overall conclusion of the team undertaking the assessment described in this report is that there are no down stream impacts whose magnitude and effect are such as to cause doubts to be cast over the wisdom of proceeding with the Sardar Sarovar Projects E 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." F The said Mis. 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 G being the effect of flood attenuation on Hi Isa 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 H

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

A 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 petitioner's 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 ofrich 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 D 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:

E Type I: 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

F 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. G In the case of Sardar Sarovar, where several sites may be submerged, the NOWT award stipulated that the entire cost of relocation and protection should be chargeable to Gujarat. Relocation work was to be supervised by the Depart~ent of Archaeology under the provisions of the Ancient H Monuments and Archaeological Sites and Remains Act, 1958.

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 171 The three State Governments carried out a complete survey of cultural A 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 cultijral 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 B 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 C examination of evidence of ancient dwellings and cultural artifacts. The principal studies in this behalf are described below:

Anthropological Survey oflndia: Narmada Salvage Plan: The Narmada ... Salvage ·Plan contains detailed background data on palaeoanthropological, human ecological and other aspects of the D 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 E 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 Complete for all items in the State F submergence zone

Identification of cultural sites Complete for all items in the State

Collection of data and Complete documentation of sites G 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 submergen~e area of the project. H

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

A 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.

D 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 go.od 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 a~imals.

G It was also contended on behalf of petitioners that the whole project will have sedous 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

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 173 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 IO 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 E 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. F 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 G the Government of India. Para 4.5.2 of the report ofFive Member Group which relates to creation of the Environment Sub-group commends it's establishment, it's 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 H

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A 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 B 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 c 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 D political importance of these two points of view in our system. This can be remedied only in the long term through persuation and education, and not immediately through. institutional arrangements which run counter to the system." (Emphasis added)

E 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. F Sh. Shanti Bhushan, learned Senior Counsel while relying upon A.P. Pollution Control Board v. 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 Board's 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

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 175 certificate to the location of the industry at the site proposed by it. The A 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 B by the appellate authority. A writ petition was filed in the nature of public interest litigation and also by the Gram Pancliayat 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. C 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 Ve/lore Citizens~ Welfare Forum v. Union of India, [1996) 5 SCC 647 and observed that there D 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 tum had led to the special principle of burden of proof in environmental cases E I where burden as to the ab~ence 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 p 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. G 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 polluting 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, H

176 SUPREME COURT REPORTS [ 1998] I S.C.R.

A 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 B 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. c 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 D 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 E environment with the construction of a dam is well-known in India and, therefore, the decision in A.P. Pollution Control Board's 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. F Froehlke, 350bF. Supp.1280 (1973). In that case work had begun on Wall\sville Project which, inter a/ia, 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 G Environmental Policy Act, 1969, [NEPA]. Plaintiff, inter a/ia, 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,

NARMADA BACHAO ANDOLAN v. U.O.l. [KIRPAL, J.] 177

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. D 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.

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A 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 continu.ed existence of snail darter which was an endangered species would be comJ)1~~_ely jeopardised.