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

NARMADA BACHAO ANDOLAN v. U.0.l. [KIRPAL, J.] 219

of the constitution and rights of Indians. The courts must, therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the Court will not interfere. When there is a valid law requiring the Government to act in a particular manner the Court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words the Court itself is not above the law.

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

What the petitioner wants the Court to do in this case is precisely that. The facts enumerated hereinabove clearly indicate that the Central Government had taken a decision to construct the Dam as that was the only solution F available to it for providing water to water scare areas. It was known at that time that people will be displaced and will have to be rehabilitated. There is no material to enable this Court to come to the conclusion that the decision was ma/a fide. A hard decision need not necessarily be a bad decision. G Furthermore environment concern has not only to be of the area which is going to be submerged and its surrounding area. The impact on environment should be seen in relation to the project as a whole. While an area of land wit.I submerge but the construction of the Dam will result in multifold improvement in the environment of the areas where the canal waters will reach. Apart from bringing drinking water within easy reach the supply of H

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A water to Rajasthan will also help in checking the advancement of the Thar Desert. Human habitation will increase there which, in tum, will help in protecting the so far porous border with Pakistan.

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

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

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

In the case of projects of national importance where Union of India and/ or more than one State(s) are involved and the project would benefit a large section of the society and there is evidence to show that the said project had been contemplated and considered over a period of time at the highest level of the States and the Union of India and more so when the project is

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 221 evaluated and approval granted by the Planning Commission, then there should be no occasion for any Court carrying out any review of the same or directing its review by any outside or "independent" agency or body. In a

- democratic set up, it is for the elected Government to decide what project ,. should be undertaken for the benefit of the people. Once such a decision had been taken that unless and until it can be proved or shown that there is a blatant illegality in the undertaking of the project or in its execution, the Court B ought not to interfere with the execution of the project.

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

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A of the oustees will be much better than what they had in their tribal hamlets.

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

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

So far a number of such river valley projects have been undertaken in all parts of India. The petitioner has not been able to point out a single instance where the construction of a Dam has, on the whole, had an adverse environmental impact. On the contrary the environment has improved. That F being so there is no reason to suspect, with all the experience gained so far, that the position here will be any different and there will not be overall improvement and prosperity. It should not be forgotten that poverty is regarded as one of the causes of degradation of environment. With improved irrigation system the people wit.I prosper. The construction of Bhakra Dam is a shining example for all to see how the backward area of erstwhile undivided Punjab has now become the granary of India with improved environment than what was there before the completion of the Bhakra Nangal project.

The A ward of the Tribunal is binding on the Stat~s concerned. The said Award also envisages the relief and rehabilitation measures which are to be undertaken. If for any reason, any of the State Governments involved lag

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, J.] 223 behind in providing adequate relief and rehabilitation then the proper course, for a Court to take, would be to direct the Award's implementation and not to stop the execution of the project. This Court, as a Federal Court of the country specially in a case of inter-State river dispute where an Award had been made, has to ensure that the binding Award is implemented. In this regard, the Court would have the jurisdiction to issue necessary directions to the State which, though bound, chooses not to carry out its obligations under the Award. Just as an ordinary litigant is bound by the decree, similarly a State is bound by the Award. Just as the execution of a decree can be ordered, similarly, the implementation of the Award can be directed. If there is a short fall in carrying out the R&R measures, a time bound direction can and should be given in order to ensure the irnplernentati.on of the Award. C Putting the project on hold is no solution. It only encourages recalcitrant State to flout and not implement the award with impunity. This certainly cannot be pennitted. Nor is it desirable in the national interest that where fundamental right to life of the people who continue to suffer d~e to shortage of water to such an extent that even the drinking water becomes scarce, non- cooperation of a State results in the stagnation of the project. D

The clamour for the early completion of the project and for the water to flow in "the canal is not by Gujarat but is also raised by Rajasthan.

As per Clause 3 of the final decision of the Tribunal published in the E Gazette notification of India dated 12th December, 1979, the State of Rajasthan has been allocated 0.5 MAF of Narmada water in national interest from Sardar Sarovar Darn. This was allocated to the State of Rajasthan to utilise the same for irrigation and drinking purposes in the arid and drought-prone areas of Jalore and Barmer districts of Rajasthan situated on the international border with Pakistan, which have no other available source of water. F Water is the basic need for the survival of human beings and is part of right of life and human rights as enshrined in Article 21 of the Constitution of India and can be served only by providing source of water where there is none. The Resolution of the U.N.O. in 1977 to which India is a signatory, G during the United Nations Water Conference resolved unanimously inter alia as under:

"All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in , , quantum and of a quality equal to their basic needs." H

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

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

As already seen, the State of Madhya Pradesh is keen for the reduction of the dam's height to 436 ft. Apart from Gujarat and Rajasthan the State of Maharashtra also is not agreeable to this. The only benefit from the project which Maharashtra get is it's share of hydel power from the project. The lowering of the height from 455 ft. to 436 ft. will take away this benefit eve11 though 9399 hectares of it's land will be submerged. With the reduction of height to 436 ft. not only will there be loss of power generation but it would also render the generation of power seasonal and not throughout the year.

One of the indicators of the living standard of people is the per capita consumption of electricity. There is, however, perennial shortage of power in India and, therefore, it is necessary that the generation increases. The world over, countries having rich water and river syste!lJS have effectively exploited these for hydel power generation. In India, the share of hydel power in the total power generated was as high as 50% in the year 1962-63 but the share of hydel power started declining rapidly after I 980. There is more reliance now on thermal power projects. But these thermal power projects use fossil fuels, which are not only depleting fast but also contribute towards environmental pollution. Global warming due to the greenhouse effect has become a major cause of concern. One of the various factors responsible for this is the burning of fossil fuel in thermal power plants. There is, therefore, international concern for reduction of greenhouse gases which is shared by the World Bank resulting in the restriction of sanction of funds for thermal power projects. On the other hand, the hydel power's contribution in the greenhouse

NARMADA BACHAO ANDOLAN v. U.0.1. [KIRPAL, .I.] 225 . ·effect is negligible and it can be termed ecology friendly. Not only this but the cost of generation of electricity in hydel projects is significantly less. The Award of the Tribunal has taken all these factors into consideration while determining the height of the dam at 455 ft: Giving the option of generating eco-friendly electricity and substituting it by thennal power may not, therefore, be the best option. Perhaps the setting up of a thermal plant may not displace as many families as a hydel project may but at the same time the pollution caused by the thermal plant and the adverse affect on the neighbourhood could be far greater than the inconvenience caused in shifting and rehabilitating the oustees of a reservoir.

There is and has been in the recent past protests and agitations not only against hydel projects but also against the setting up of nuclear or thermal power plants. In each case reasons are put forth against the execution of the prop~sed project either as being dangerous (in case of nuclear) or causing pollution and ecological degradation (in the case of thermal) or rendering people homeless and posses adverse environment impacts as has been argued in the present case. But then electricity has to be generated and one or more of these options exercised. What option to exercise, in our Constitutional framework, is for the Government to decide keeping various factors in mind. In the present case, a considered decision has been taken and an Award made whereby a high dam having an FRL of 455 ft. with capability of developing hydel power to be constructed. In the facts and circumstances enumerated hereinabove, even if this Court could go into the question, the decision so taken cannot be faulted.

DIRECTIONS

While issuing directions and disposing of this case, two conditions have to be kept in mind, (i) the completion of project at the earliest and (ii) ensuring compliance with conditions on which clearance of the project was given including completion of relief and rehabilitation work and taking of ameliorative and compensatory measures for environmental protection in compliance with the scheme framed by the Government thereby protecting the rights under Article 21 of the Constitution. Keeping these principles in view, we issue the following directions.

(1) Construction of the dam will continue as per the Award of the Tribunal.

(2) As the Relief and Rehabilitation Sub-group has cleared the H

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

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

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

(5) The reports of the Grievances Redressal Authorities, and of Madhya Pradesh in particular, shows that there is a considerable slackness in the work of identification of land, acquisition of E suitable land and the consequent steps necessary to be taken to rehabilitate the project oustees. We direct the States of Madhya Pradesh, Maharashtra and Gujarat to implement the Award and give relief and rehabilitation to the oustees in terms of the packages offered by them and these States shall comply with any direction in this regard which is given either by the NCA F or the Review Committee or the Grievances Redressal Authorities. (6) Even though there has been substantial compliance with the conditions imposed under the environment clearance the NCA and the Environment Sub-group will continue to monitor and ensure that all steps are taken not only to protect but to restore and improve the environment. (7) The NCA will within four weeks from today draw up an Action Plan in relation to further construction and the relief and rehabilitation work to be undertaken. Such an Action Plan will fix a time frame so as to ensure relief and rehabilitation pari passu with the increase in the height of the dam. Each State shall

NARMADA BACHAO ANDOLAN v. U.0.1. [BHARUCHA, J.] 227 abide by the terms of the action plan so prepared by the NCA A and in the event of any dispute or difficulty arising, representation may be made to the Review Committee. However, each State shall be bound to comply with the directions of the NCA with regard to the acquisition of land for the purpose of relief and rehabilitation to the. extent and within the period B specified by the NCA. (8) The Review Committee shall meet whenever required to do so in the event of there being any un-resolved dispute on an issue which is before the NCA. In any event the Review Committee shall meet at least once in three months so as to oversee the progress of construction of the dam and implementation of the c R&R programmes. If for any reason serious differences in implementation of the Award arise and the same cannot be resolved in the Review Committee, the Committee may refer the same to the Prime Minister whose decision, in respect thereof, shall be final and binding on all concerned. (9) The Grievances Redressal Authorities will be at liberty, in case the need arises, to issue appropriate directions to the respective States for due implementation of the R&R programmes and in case of non-implementation of its directions, the GRAs will be at liberty to approach the Review Committee for appropriate orders. (10) Every endeavour shall be made to see that the project is completed as expeditiously as possible. F This and connected petitions are disposed off in the aforesaid terms.

BHARUCHA, J. I have read the judgment proposed to be delivered by my learned brother, the Hon'ble Mr. Justice B.N. Kirpal. Respectfully, I regret my inability to agree therewith. G I do not set out the facts here: they are detailed in Brother Kirpal's judgment.

I take the view that the Sardar Sarovar Project does not require to be re-examined, having regard to its cost effectiveness or otherwise, and that the seismicity aspect of the Project has been sufficiently examined and no further H

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A consideration thereof is· called for. I do not accept the submission on behalf of the petitioner that those ousted by reason of the canals emanating from the reservoir in the Project must have the same relief and rehabilitation .! benefits as those ousted on account of the reservoir itself; this is for the reason that the two fall in different classes.

B Having said this, I tum to the aspect of the environmental clearance of the Project. The Planning Commission accorded provisional sanction to the Project subject t.o the environment clearance thereof being obtained. At the relevant time, the responsibility for giving environmental clearance lay with the Department of Environment in the Ministry of Environment and Forests C of the Union Government. The Department had in January, 1985 issued Guidelines for Environmental Impact Assessment of River Valley Projects. The Preface thereof stated that environmental appraisal was an important responsibility assigned to the Department. It involved the evaluation of the environmental implications of, and the incorporation of necessary safeguards in, activities having a bearing on environmental quality. While river valley projects were a basic necessity to a country whose economy was largely based on agriculture, over the years the realisation had dawned that river valley projects had their due quota of positive and adverse impacts which had to be carefully assessed and balanced for achieving sustained benefits. Therefore, it had been decided in the late 70s that all river valley projects should be subjected to a rigorous assessment of their environmental impact so that necessary mitigative measures could be duly incorporated therein at the inception stage. The Guidelines set out the procedure to be adopted for carrying out environmental impact assessments. In the Chapter headed Relevance of Environmental Aspects for River Valley Development Projects, the Guidelines stated, "Concern for environmental pollution is rather a recent phenomenon which has been triggered mainly by the backlash effect of accelerated industrial growth in the developed countries. The two major criteria - the project should maximise economic returns and it should be technically feasible - are no longer considered adequate to decide the desirability or even the viability of the project. It is now widely recognised that the development effort may frequently produce not. only sought for G 'benefits, but other - often unanticipated - undesirable consequences as well which may nullify the socio-economic benefits for which the project is designed." After reference to the strong feelings that were often expressed in favour of measures that would provide the provision of adequate food and shelter to the millions, the Guidelines stated, "Such strong feelings are easy to understand in the context of the prevailing economic stagnation. It does

NARMADA BACHAO ANDOLAN v. U.0.1. [BHARUCHA. J.] 229 not, however, follow that the arguments advanced are valid. The basic flaw in these arguments is that they presume incompatibility between environmental

- conservation and the development effort." Apart from some selected cases where the uniqueness of the natural resources, like wildlife, flora and genetic pool, which demanded exclusive earmarking of a given region for their specific use, the majority of cases did not call for a choice between development projects and preservation of the natural environmental; but in all cases there was great need to consider the environmental aspects along with other feasibility considerations. It was imperative to analyse whether the_ adoption of environmental measures was going to result in any short or long term social or economic benefits. A careful study of the direct costs involved, which would be caused by the absence of environmental mitigative measures on river valley projects, was an eye opener. These included effects on health, plant genetic resources, aquatic resources, water-logging and salinity of irrigated soils, deforestation and soil conservation. During the planning and feasibility assessment stages, several factors had to be taken into account, including short and long term impact on population and human settlements in the inundated and watershed areas, impact of flora and fauna (wildlife) in the vicinity, impact on wildlife, including birds, impact on national parks and sanctuaries, on sites and monuments of historical, cultural and religious significance and on forests, agriculture, fisheries and recreation and tourism. Requisite date for impact assessment was not readily available, this being relatively a new discipline, and it had to be generated through such field surveys as :

- "Pre-impoundment census of flora & fauna, particularly the rare & endangered species, in submergence areas;

- Census of animal population and available grazing areas; F - Land-use pattern in the area with details of extent & type of forest;

- Pre-impoundment survey of fish habitat and nutrients levels; - Groundwater level, its quality, and existing water use pattern;

- Mineral resources, including injurious minerals, in the impounciment. G - Living conditions of affected tribals/aboriginals etc.

The cost of proposed remedial and mitigative measures to protect the environment had to be included in the project cost. Mitigative measures included, among other things, compensatory afforestation. Only when the incorporation of environmental aspects in the project planning was made a H

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A part and parcel of all river valley projects would there be hope to protect and preserve "our national environment and fulfill the objective of rapid economic development on the sustained basis while safeguarding the natural resources including the air, water, land, flora and fauna for the benefit of present and future generations." The necessary data that was required to be collected. for B impact assessment was set out in the Guidelines. A chart of the impact assessment procedure was also contained in the Guidelines.

It appears that, though it ought rightly to have been taken by the Ministry of Environment and Forests, the decision whether or not to accord environmental clearance to the Project was left to the Prime Minister. c A note was prepared by the Ministry of Water Resources in or about October, 1986 on the environmental aspects of the Sardar Sarovar and the Narmada Sagar Multi Purpose Projects. It stated that a decision on the clearance of these projects from the environmental angle and under the Forest Conservation-Act, 1980 had become a matter ofurgency. Delays had occurred which had necessitated a recasting of the schedule. The Ministry of Environment and Forests had been doing its best to expedite the process of examination and clea_rance "but have been finding the material submitted inadequate and unsatisfactory. ......... ". While the State Governments had done their best to meet the requirements, "some of the information and action will necessarily take time and will have to proceed pari passu with the implementation of the project, which in any case will take a decade or more to complete." The Note stated that the Ministry of Water Resources shared the concerns and anxieties of the Ministry of Environment and Forests, as also the sense of urgency of the Governments of Gujarat and Madhya Pradesh, who felt that it was urgently of the Governments of Gujarat and Madhya F Pradesh, who felt that it was urgently necessary to take a decision in regard to the clearance. Under the sub-heading, "Should the projects be taken up at all?'', the Note stated that the abandonment of the projects would mean the abandonment of the generation of 2450 MW of power and of the possibilities of economic development which that quantum of power would bring, as also increased agricultural production resulting from the creation of an irrigation potential of 2.041 million hectares. No effective alternatives to the two projects were available. Reference to the adverse environmental impact of the project carried the implicit assumption that if the projects were not sanctioned the status-quo would remain and there would be no deterioration of the environment. Such an assumption was not warranted. Despite the submergence of land and displacement of people and livestock, there was no

NARMADA BACHAO ANDOLAN v. U.0.1. [BHARUCHA, J.) 231 case for the abandonment of the projects. What needed to be done was to take appropriate and adequate counter measures to off-set the environmental impact of the projects. The Note then gave a broad picture of the likely environmental impact of the two projects. In respect of the flora and fauna, ' it said, "Quantified data not yet available." In respect of the possibitity of soil " erosion from the catchment leading to excessive siltation of the reservoirs, it said, "Extent of critically degraded area needing treatment to be identified". B Specifically in respect of the Sardar Sarovar Project, the Note said that for the area to be submerged in Maharashtra, the Maharashtra Government had proposed compensatory afforestation over an area of 6490 hectares and the Madhya Pradesh was preparing an action plan to reforest about 5500 hectares of the denuded forest in the impact area. In respect of fauna, the Note said that the Narmada Sagar Project authorities had commissioned a wildlife census of the areas by the Zoological Survey of India and were negotiating terms with the Indian Institute of Wildlife Management, Dehradun, for carrying out detailed wildlife studies for re-location purposes. They proposed to undertake all necessary steps to minimise the adverse impact of the Project on wildlife. Gujarat and Maharashtra were also taking similar action with the help of specialised agencies. In respect of the Projects' flora, the Note said that the first preliminary survey in the area by the Botanical Survey of India was started in December, 1985 and it was estimated that the survey would take two to three years to be completed. In respect of catchment area treatment, the Note said that field surveys were likely to be started shortly. The Project E authorities had identified three representative pilot project areas. The biological and engineering measures to be adopted in the treatment of the balance of the catchment area would be designed on the basis of the experience to be gained from these pilot projects. Under the sub-heading, "What still remains to be done", the Note stated, "While some .plans have been made, studies

- undertaken and action initiated, it will be clear from the preceding paragraphs that much still remains to be done. Indeed, it is the view of the Ministry of Environment, Forests and Wildlife that what has been done so far whether by way of action or by way of studies does not amount to much, F

and that many matters are as yet in the early and preliminary stages." What was then set out was an enumeration of what remained to be done. The survey G offlora, to assess if there were any rare or threatened plant species, had been assigned to the Botanical Survey of India, which was expected to be completed in a period of two years. The wildlife survey undertaken by the Zoological Survey of India was also likely to take two take two years. The Indian Institute of Wildlife Management, Dehradun was to consider and assess the impact on wildlife of the destruction of their habitant, and to prepare a project H

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A report for their re-location. After all these reports became available, a master plan had to be prepared. Field surveys for the identification of the critically eroding areas was necessary and would take three years. The results from pilot studies would be available only after three years. Then, under the sub- heading, "Options in regard to the Clearance of the Projt:'.cts", the Note stated:

B "There are two options :

(i) As a number of studies, censuses, field surveys, mapping of areas, etc., are likely to take between 2 and 3 years, one possibility is that all these should be completed; detailed operational plans for catchment treatment compensatory afforestation, c rehabilitation and resettlement of affected population; and remedial or re-location measures for planned species, wildlife, etc., formulated; the responsibility for their implementation clearly identified; and then the projects should be given a clearance from the environmental and forest angles. This will mean a D postponement of the clearance of projects by about 3 years.

(ii) The other option is that the projects should be given the necessary clearance now, with clear conditions and stipulations in regard to the actions to be taken on the various environmental aspects and appropriate monitoring arrangement to ensure that the actions are taken in a time-bound manner. ·

13.2. The arguments against a postponement of clearance by three years are very strong."

The postponement of the decision at this stage seemed, to the writers of Note, scarcely conceivable. A postponement would lead to substantial increases in project costs and the benefits expected from the projects would be delayed. Also the work that had already been doQe would be rendered infructuous. The deferment of clearance by three years would put the organisational set-up that had been built up into a state of uncertainty retard the momentum that had been gathered, and sap the organisational morale and motivation. The Note added, "Finally, the numerous studies, surveys, data collection exercises, plans for remedial measures, etc., where have been enumerated earlier would involve time, money and organisation commitment. With the project decision postponed for three years, and with no assurance that at the end of that period,. the decision will be positive, it is difficult believe that all these studies, surveys and plans relating to the environmental

NARMADA BACHAO ANDOLAN v. U.0.1. [BHARUCHA, J.] 233 aspect will be pursued with energy and enthusiasm, and the necessary A . resources devoted to them. In other words, the postponement of the decision in the interest of collecting the information relating to the environmental aspects and completing the formulation of the necessary operational plans may in fact prove to be a self defeating exercise. On the other hand, if the project decisions are taken now, subject to firm conditions and stipulations regarding the environmental aspects, there is greater likelihood of these conditions being met... ........A possible argument against the immediate clearance of the projects could be that once the projects are cleared, the management would concentrate on the engineering and construction aspects and would not pay adequate attention to the environmental and human aspects. There seems to be no need for such apprehensions. It should be entirely possible to give a conditional clearance and ensure that the conditions are properly met through a process of clear assignment of responsibility and frequent monitoring ............ Moreover, even assuming that the postponement of a decision by three years will improve the availability of detailed information and the state of preparedness on environmental matters, there can be no greater assurance at that stage than there is now regarding the whole-hearted and effective implementation of the remedial and ameliorative measures. We would still have to depend on proper monitoring ...... ". In conclusion, the Note urged that clearance for the environmental angle and under the Forest Conservation Act, 1980 be given immediately, subject to conditions and stipulations relating to the various environmental and related aspects outlined in the Note. (Emphasis E supplied)

Another Note was prepared by the Ministry of Water Resources and forwarded to the Additional Secretary to the Prime Minister on 20th November

1986. Insofar as catchment area treatment was conc·emed, it concluded that

.. it was certain that the catchment area treatment programme could not be realistically formulated and assessed for atleast another three years. Therefore, it was premature to comment on the efficacy or otherwise of the catchment area treatment programme which was still to be formulated. The action F

programme for Command area development was yet to be made available. The lining of the canal network and the digging of tubewells in the Command G could not be considered to be adequate. A lot of field work and planning was needed to be done to arrive at a workable and effective Command area development programme. As to compensatory afforestation, the land for the same was yet to be identified and procured before it could be evaluated for the purpose. In regard to the loss of flora and fauna, the following studies were considered absolutely essential to determine the adequacy or otherwise H

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

A of the left ov,,et' habitat to sustain wildlife:

"A wildlife census of the area" (ZSI will take atleast 2-3 years to complete the survey):

(0 Preparation of a Master Plan showing all protected areas, National B Parks, Wjldlife Reserves, Reserve and Protected Forests, etc. on which should be superimposed the area to be taken up for various reservoirs, roads, canals, S\'lttlement colonies, etc. (ii) Study of the carrying capacity of the surrounding areas where the wildlife from the submergence area will disperse." c In the circumstances, it was not considered possible to assess the impact of the loss of habitat on the wildlife and the overall loss of biological diversity. The absence and inadequacy of data on the following environmental aspects persisted :

D "(i) Rehabilitation; (ii) Catchment Area Treatment; (iii) Command Area Development;

(iv) Compensatory Afforestation; and E (v) Flora and Fauna."

Considering the magnitude of rehabilitation, involving a large percentage of tribals, loss of extensive forest area rich in biological diversity, enormous environmental cost of the project and considering the fact that the basic data on vital aspects was still not available "there could be but one conclusion, F that theproject(s) are not ready for approval. " "There were two options in regard to the clearance. As a number of studies, censuses, field surveys, mapping of areas etc. was likely to take between two and three years, one 1

possibility was that all these should be completed; detailed operational plans for catchment treatment, compensatory afforestation, rehabilitation and re- G settlement of affected population and remedial or re-location measures for .....: plant species, wildlife, etc. formulated; the responsibility for their implementation clearly identified; and then the projects should be given a clearance from the environmental and forest angles. This would mean a postponement of the clearance of projects by about three years." The other option was that the project should be given the necessary clearance with conditions and stipulations in regard to the actions to be taken on the various environmental

NARMADA BACHAO ANDOLAN v. U.0.1. [BHARUCHA, J.] 235

aspects with appropriate monetary arrangements. The Note recommended the latter option. (Emphasis supplied)

On 19th December, 1986 the Ministry of Environment and Forests sent to the Secretary to the Prime Minister a Note on the environment aspects of the Narmada Sagar and the Sardar Sarovar Projects. The Note stated that it covered the major environmental issues which included the rehabilitation of the affected population, catchment area treatment, Command area development, .... compensatory afforestation and the loss of flora and fauna. It explained the then status of each of these aspects in terms of availability of data and plans and the readiness to execute them. It said that other components of the environmental aspect like the higher incidence of water borne diseases and loss of mineral reserves were important but were not dealt with in detail in the note. It stated that the respect of catchment area treatment, the requirement was of demarcation of critically degraded area on the basis of aerial photographs, satellite imagery and ground checks; creation of a chain of nurseries of suitable species for biological treatment of the catchment area; and preparation of phased action programme for biological and engineering treatment of the degraded catchment area. Considering that catchment area treatment on an intensive scale was imperative, both to reduce silt load and to maintain ecological balance, and keeping in view the fact that the interpretation of the aerial photographs and satellite imagery would take at least one year for completion, to be followed by ground truth checks; the detailed land and soil surveys would take three years to be completed; the geo-morphological studies to suggest the engineering and biological treatment for the eroded areas were still to be taken up and the chain of nurseries needed to provide the necessary saplings in adequate quantity along with manpower and other infrastructure requirements were still to be mobilised, it was "reasonable to conclude that the catchment area treatment programme can be realistically formulated only after three years when these data become available". Command area development was to achieve the prevention of water-logging and salinity, the optimisation of water utilisation and the maintenance of water quality. A detailed survey of the Command area was required on priority to prepare a package of the nature and quantity of development and drainage and on farm works to fully uti'.ise the irrigation potential. An action programme was yet to be detailed. The Ministry of Water Resources was preparing an Evaluation Report covering the extent of likely water-logging and salinity problems and the effectiveness of measures proposed or likely to be proposed to combat these problems "as per the action programme to be formulated". In so far as compensatory afforestation H

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

A was concerned, the Project authorities had not been able to identify non- forest land for compensatory afforestation and had proposed to undertake afforestation on double the extent for degraded forest and, which proposal was fairly detailed and seemed satisfactory. In the matter of the loss of flora and fauna the Note stated "that the forest area, specially affected by the ...._ B Narmada Sagar Project, represents area harbouring rich heritage of genetic resources as well as wildlife. The. preliminary study carried out by the Environmental Planning and Coordination Organisation, Bhopal as well as the observations made by the World Bank clearly underlined the need for preparing a master plan showing not just the present status but also the likely scenarios after ~he project was implemented. The prime concern was to ascertain the loss of biological diversity and whether the wildlife would be able to sustain itself after the destruction of its habitat. The following studies were considered absolutely essential both to determine the loss of flora and the adequacy or otherwise of the left over habitat to sustain the wildlife :

A wildlife census of the area (ZSI will take at least 2-3 years to complete the survey);

Preparation of a Master Plan showing all protected areas i.e. National Parks, Wildlife Reserves, Reserve and Protected Forests, etc. on which should be superimposed the areas cannot be taken up for various reservoirs, roads, canals, settlement colonies, etc.;

Study of the carrying capacity of the surrounding areas where ': the wildlife from the submergence area will disperse.

These studies are considered specially important in the case ofNSP. The work initiated by BSI and ZSI at the request of the Project Authorities will be completed only by 1989. The other studies have not yet been initiated. Under the circumstances, it is not possible to assess the impact of the loss of habitat on the wildlife and the overall loss of biological diversity and genetic reserves.

G Even if one were to assume that the forests to be destroyed do not contain genetic resources, which in any case cannot be valued, the simple loss of these forests would have an environmental cost estimated at several thousand crore! of Rupees as per norms developed by FRL. The environmental cost is thus colossal".

H The Note concluded :

NARMADA BACHAO ANDOLAN v. U.0.1. [BHARUCHA, J.) 237 "(l) Taking note of the fact that the project formulation has been in A progress for more than three decades and the active interaction of the Project authorities with the Department of Environment has been going on for almost three years, the absence and inadequacy of data on some important environmental aspects still persists. B (2) In an objective sense the NSP is not ready for clearance from environmental angle. Even though SSP is in a fairly advanced stage of preparedness, it is neither desirable nor recommended that the SSP should be given approval in isolation on technical and other grounds. c (3) The state of readiness in the case of NSP is such that it gives just an outline of the Intention Plan. The fact that this Intention Plan will be converted to an Action Plan and there be effectively implemented has to be taken on trust. In case of Sardar Sarovar Project (SSP), readiness to execute is reasonably good except on the issue of rehabilitation of oustees specially from M.P. and Maharashtra.

(4) Holding up of the projects even for the next few months is not likely to improve the level of preparedness on most of the environmental aspects, specially in the case of NSP. In the meanwhile, further studies will not perhaps pick. up speed and thus at no time will the requisite information be fully available.

(5) A large amount of money has already ·been invested on SPP which is critically linked - on technical and operational aspects - to NSP. However, it may not be too late even now to modify some of the parameters of NSP and SSP to minimise environmental damage while at the same time ensuring option of utilisation of water resources.

G The Choice is difficult but a choice has to be maqe." (Emphasis supplied)

A Note was pr~pared on 15th January, 1987 in the Prime Minister's Office. It noted that the main issues on environmental concerns were the rehabilitation of the affected population, compensatory afforestation, treatment of the catchment area and Command area develop!llent, pertaining, particularly; H

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

A to drainage, water logging arid salinity. The Department of Environment and Forests·had raised the point that the rehabilitation plan was not ready, land had not been surveyed, areas of land use capability and water availability had not been identified and the land being suggested for rehabilitation, prima facie, appeared to be infertile. Detailed meetings with the State Governments B revealed that they were seriously undertaking surveys, land identification and preparation of a rehabilitation plan, of which the first phase was more or less ready. The catchment area treatment preparation would take time. A compensatory afforestation programme could be chalked out without difficulty. The issue was whether detailed plans should be made fully ready before giving environmental clearance or whether there could be a conditional clearance so that the Project could start. The Secretary to the Prime Minister had discussed the matter with the Secretary, Water Resources and the Secretary, Environment and Forests and it had been agreed that clearance might be given on the following conditions :

"Preparation in due time of detailed- and satisfactory plans for rehabilitation, catchment area treatment, compensatory afforestation and Command Area Development.

Setting up of Narmada_ Management Authority with adequate powers and teeth ·to ensure that environmental management plans are implemented pari passu .with engineering and other works".

Below the aforesaid Note, the Secretary to the Prime Minister sought his approval to conditional clearance of the Project from the environmental angle. The Project, she said, had been pending clearance for seven years and the Chief Ministers of Gujarat and Madhya Pradesh were keenly awaiting it. The Chief Minister of Gujarat had requested a "green signal" before 20th January, 1987.

On 19th January, 1987 the Prime Minister made a handwritten endorsement on the aforesaid Note, "Perhaps this is a good time to try for G a River Valley Authority. Discuss". But it appears that a River Valley Authority was not found feasible and the sanction to the Project from the environment of angle was issued by the Ministr.y of Environment and Forests on 24th June, 1987.

The environmental sanction to the Project reads thus : H

NARMADA BACHAO ANDOLAN v. U.0.1. [BHARUCHA, J.] 239 "Office Memorandum A Subject : Approval of Narmada Sagar Project, Madhya Pradesh and

- I. Sarovar Project, Gujarat from environmental angle.

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

2. On the basis of examination of details of these projects by the Environmental Appraisal Committee for River Valley Projects and discussions with the Central and State authorities, the following details were sought from the project authorities: C (i) Rehabilitation Master Plan.

(ii) Phased Catchment Area Treatment Scheme.

(iii) Compensatory Afforestation Plan. D (iv) Command Area Development

(v) Survey of Flora and Fauna.

(vi) Carrying Capacity of surrounding area.

(vii) Seismicity; and E

(viii) Health Aspects.

3. Field Surveys are yet to be completed. The first set of information has been made available and complete details have been assured to be furnished by 1989.

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

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

240 SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.

A (0 The Narmada Control Authority (NCA) will ensure that environmental safeguard measures are planned and implemented pari passu with progress of work on projects.

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

(iii) The Catchment Area Treatment programme and the Rehabilitation plans be so drawn as to be completed ahead of reservoir filling. -- (iv) The Department should be kept informed of progress on various C works periodically.

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

D 7. Approval from environmental and forestry angles for any other irrigation, power or development projects in the Narmada Basin should be obtained separately."

Even in 1987, when the environmental clearance to the Project was given, it had been found necessary by the Union of India to rigorously assess E the environmental impact of river valley projects. This was to determine whether the uniqueness of the natural resources, like wildlife, flora and the genetic pool in the region, demanded its exclusive earmarking for that purpose, in which event the river valley project would not be accorded clearance. Even otherwise, it was imperative to consider the Project's environmental aspects, p such as its effect on health, plant genetic resources, aquatic resources, water- logging and salinity of irrigated soils, deforestation and soil conservation. Its short and long term impact on population, on flora and fauna, on wildlife, on national parks and sanctuaries, on historical, cultural and religious monuments, on forests, agriculture, fisheries and recreation and tourism had to be taken in account. Field surveys were necessary for generating the requisite data for the impact assessment. The cost of the proposed remedial and mitigated measures had to be included in the project cost. The necessary data that was required to be collected for the purposes of the assessment of a project's environmental impact was set out in Guidelines for the purpose issued by the Ministry of Environment and Forests of the Union Government (which have been referred to above).

NARMADA BACHAO ANDOLAN v. U.O.I. [BHARUCHA, J.) 241 The contemporaneous Notes prepared by the Ministry of Water A Resources and the Ministry of Environment and Forests, also referred to above, leave no manner of doubt that the requisite data for assessment of the environmental impact of the Project was not available when the environmental clearance thereof was granted. In the words of one of the Notes, "While some plans have been made, studies undertaken and action initiated, it will be clear from the preceding paragraphs that muc'h still remains to be done. Indeed it is the view of the Ministry of Environment, Forests and Wildlife that what has been done so far whether by way of action or by ~ay of studies does not amount to much and that many matters are yet in the early and preliminary stages". The Notes make clear that the studies, censuses, mapping of areas and field surveys for the collection of data for assessment of the environmental impact of the Project were likely to take a further 2 to 3 ye~. An environmental clearance based on next to no data in regard to the environmental impact of the Project was contrary to the terms of the then policy of the Union of India in regard to environmental clearances and, therefore, no clearance at all.

The environmental clearance of 24th June, 1987 stated that details had been sought from the Project authorities in respect of the rehabilitation master plan, phased catchment area treatment· scheme, compensatory afforestation plan, Command area development, survey of flora and fauna, carrying capacity of surrounding area, seismicity and health aspects; field surveys had yet to be completed and complete details had been assured by 1989. Clearly, therefore, the necessary particulars in regard to the environmental impact of the Project, as required by the Guidelines, were not available when the environmental clearance was given, and it, therefore, could not have been given.

The conditions upon which the environmental clearance was given were that detailed surveys and studies would be carried out and the Narmada F Control Authority, whose terms of reference had been amplified, would ensure · that "environmental safeguard measures" were planned and implemented pari passu with the progress of work on the Project. No further assessment of the environmental impact of the Project was contemplated by the environmental clearance, nor, indeed, was it ever carried out. G What the environmental safeguards measures the Narmada Control Authority was to ensure were, and what their cost would be, was not known when the environmental clearance was given. There was, therefore, no way in which this cost could be included in the cost of the Project, whic~ was a requirement of the Guidelines.· H

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

._ A While the environmental safeguard measures were to be planned and implemented pari passu with the progress of the work on the Project, the catchment area treatment programme and the rehabilitation plans were required to be "so drawn as to be completed ahead of reservoir filling". This condition clearly required that before any water was impounded in the reservoir the catchment area treatment programme was not only to be drawn but also to B be completed; so also the rehabilitation plans. If, as the Project authorities interpreted this clause, only the drawing of the catchment area treatment programme and the rehabilitation plans were to be completed ahead of reservoir filling, the clause would have read: "The catchment area treatment programme and the rehabilitation plans shall be drawn ahead of reservoir filling". What C the clause as drawn required was that the catchment area treatment programme and the rehabilitation plans should be drawn in such a manner that the catchment area treatment and the rehabilitation works would be completed ahead of impoundment in the reservoir. This, plainly, was intended to off set, so far as was possible in the circumstances, the adverse effect of the .. impoundment of water in the reservoir upon the catchment and those who were required to be settled elsewhere. In fact, the impoundment began much before.

Learned counsel for the Union of India submitted that most of the necessary surveys and studies had been carried out in regard to the environmental impact of the Project before the environmental clearance was given, and the invited our attention to what had been done. The short answer to the submission on behalf of the Union of India is that the two concerned Ministries of the Union of India thought otherwise at the relevant time. To quote the Note of one Ministry again, "While some plans have been made, studies undertaken and action initiated, it would be clear from the preceding paragraph that much still remains to be done. Indeed it is the view of the Ministry of Environment, Forests and Wildlife that what has been done so far whether by way of action or by way of studies does not amount to much and that many matters are yet in the early and preliminary stages".

G The fact that the environmental clearance was given by the Prime Minister and not by the Ministry of Environment and Forests, as it would ordinarily have beeri done, makes no difference at all. Under its own policy, as indicated by the Guidelines, the Union of India was bound to give environmental clearance only after (a) all the necessary data in respect of the environmental impact of the Project had been collected and assessed; (b) the H assessment showed that the Project could proceed; and (c) the environmental

NARMADA BACHAO ANDOLAN v. U.0.1. [BHARUCHA, J.] 243

safeguard measures, and their cost, had been worked out. A

An adverse impact on the environment can have disastrous consequences for this generation and generations to come. This Court has in its judgments on Article 21 of the Constitution recognised this. This Court cannot place its seal of approval on so vast an undertaking as the Project B without first ensuring that those best fitted to do so have had the opportunity of gathering all necessary data on the environmental impact of the Project and of assessing it. They must then decide if environmental clearance to the Project can be given, and, if it can, what environmental safeguard measures have to be adopted, and their cost. While surveys and studies on the environmental aspects of the Project have been carried out subsequent to the environmental clearance, they are not, due to what are euphemistically called "slippages", complete. Those who now examine whether environmental clearance to the Project should be given must be free to commission or carry out such surveys and studies and the like as they deem necessary. They must also, of course, consider such surveys and studies as have already been carried out. Given that the construction of the dam and other work on the Project has already commenced, this factor must play a part in their deciding. whether or not environmental clearance should be accorded. Until environmental clearance to the Project is accorded by them, further construction work on the dam shall cease. E The Union of India has issued a notification on 27th January, 1994 called the "Environmental Impact Assessment Notification 1994" (and amended it on 4th May, 1994). Its terms are not applicable to the present proceedings, but its provisions are helpful in so far as they prescribe who is to assess the environmental impact assessment reports and environment management plans that are submitted by applicants for new projects including hydro-electric F projects. The notification says, "The reports submitted with the application shall be evaluated and assessed by the Impact Assessment Agency, and if deemed necessary it may consult a Committee of Experts, having a composition as specified in Schedule-III of this Notification. The Impact Assessment Agency (IAA) would be the Union Ministry of Environment and Forests. The G Committee of Experts mentioned above shall be constituted by the IAA or such other body under the Central Government authorised by the !AA in this regard .................. ".

Schedule III of the notification reads thus : H

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

A "COMPOSITION OF THE EXPERT COMMITTEES FOR ENVIRONMENTAL IMPACT ASSESSMENT

I. The Committees will consist of experts in the following disciplines:

(i) Eco-System Management B (ii) Air/Water Pollution Control

(iii) Water Resource Management

(iv) Flora/Fauna Conservation and Management

c (v) Land Use Planning

(vi) Social Sciences/Rehabilitation

(vii) Project Appraisal

(viii) Ecology D (ix) Environmental Health

(x) Subject Are Specialists

(XI) Representatives of NGOs/Persons concerned with Environmental E Issues.

2. The Chairman will be an outstanding and experienced ecologist or environmentalist or technical professional with wide managerial experience.

3. The representative of IAA will act as Member - Secretary. F

4. Chairman and members will serve in their individual capacities, except those specifically nominated as representatives.

5. The membership of a Committee shall not exceed 15".

G The Environmental Impact Agency of the Union Ministry of Environment and Forests shall now appoint a committee of experts composed of experts in the fields mentioned in Schedule III of the notification. and that committee of experts shall assess the environmental impact of the Project as stated above.

When the writ petition was heard at the admission stage, this Court was most concerned about the distressing state of the relief to and rehabilitation

NARMADA BACHAO ANDOLAN v. U.O.I. [BHARUCHA, J.] 245

of those ousted on account of the Project. The proper implementation of relief and rehabilitation measures was the aim of the Court at that time; but it was not contemplated that the other issues in the writ petition would not to be considered at the stage of its final hearing.

The many interim orders that this Court made in the years in which this writ petition was pending show how very little had been done in regard to the relief and rehabilitation of those ousted. It is by reason of the interim orders, and, in fairness, the co-operation and assistance of learned counsel who appeared for the States, that much that was wrong has now been redressed. The States have also been persuaded to set up Grievance Redressal Authorities and it will be the responsibility of these Authorities to ensure that those ousted by reason of the Project are given relief and rehabilitation in due measure.

The States are lagging behind in the matter of the identification -and acquisition of land upon which the oustees are to be resettled. Having regard to the experience of the past, only the Grievance Redressal Authorities can be trusted by this Court to ensure that the States are in possession of vacant lands suitable for the rehabilitation of the oustees. During the time that it takes to assess the environmental impact of the Project, the States must take steps to obtain, by acquisition or otherwise, vacant possession of suitable lands upon which the oustees can be rehabilitated. When the Project obtains environmental clearance, assuming that it does, each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra must certify, after inspection, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present level have already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who will be ~msted by the increase in the height of the dam by another 5 meters is already in the possession of the respective States; and this process must be repeated for every successive proposed 5 meter increase in the dam height.

Only by ensuring that relief and rehabilitation is so supervised by the G Grievance Redressal Authorities can this Court be assured that the oustees will get their due.

It is necessary to provide for the contingency that, for one or other reason, the work on the Project, now or at any time in the future, does not proceed and the Project is not completed. Should that happen, all oustees H

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

A who have been rehabilitated must have option to continue to reside where they were ousted from, provided such place remains habitable, and they must not be made at all liable in monetary or other terms on this account.

When the writ p1tition was filed the process of relief and rehabilitation, such as it was, was going on. The writ petitioners were not guilty of any B !aches in that regard. In the writ petition they raised other issues, one among them being related to the environmental clearance of the Project. Given what has been held in respect of the environmental clearance, when the public interest is so demonstrably involved, it would be against public interest to decline relief only on the ground that the Court was approached belatedly. c I should not be deemed to have agreed to anything stated in Brother Kirpal's judgment for the reason that I have not traversed it in the course of what I have stated.

In the premises, D (I) The Environmental Impact Agency of the Ministry of Environment and Forests of the Union of India shall forthwith appoint a Committee of Experts in the fields mentioned in Schedule III of the notification dated 27th January, 1994, called the Environmental Impact Assessment Notification 1994. E (2) The Committee of Experts shall gather all necessary data on the environmental impact of the Project. They shall be free to commission or carry out such surveys and studies and the like as they deem necessary. They shall also consider such surveys and studies as have already been carried out. F (3) Upon such data, the Committee of Experts shall assess the environmental impact of the Project and decide if environmental clearance to the Project can be given and, if it can, what environmental safeguard measures must be adopted, and their cost. G (4) In so doing, the Committee of Experts shall take into consideration the fact that the construction of the dam and other work on the Project has already commenced.

(5) Until environmental clearance to the Project is accorded by the H Committee of Experts as aforestated, further construction work

NARMADA BACHAO ANDOLAN v. U.O.l. [BHARUCHA, J.] 247

on the dam shall cease. A (6) The Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall ensure that those ousted by reason of the Project are given relief and rehabilitation in due measures. When the Project obtains environmental clearance, assuming B (7) that it does, each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall, after inspection, certify, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present . C level have already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who will be ousted by the increase in· the height of the dam by another 5 meters is already in the possession of the respective States. (8) This process shall be repeated for every successive proposed D 5 meter increase in the dam height. (~) If for any reason the work on the Project, now or at any time in the future, cannot proceed and the Project is not completed, all oustees who have been rehabilitated shall have the option to continue to reside where they have been rehabilitated or to E return to where they were ousted from, provided such place remains habitable, and they shall not be made at all liable in monetary or other terms on this account.

The writ petition is allowed in the aforesaid terms. The connected matters are disposed of in the same terms. F No order as to costs.

B.K.M. Petitions, Appeal and T.C. disposed of.