N.D. JA YAL AND ANR. v. UNION OF INDIA AND ORS.

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A partially affected who are not to be relocated but are to be paid cash compensation for their part-land coming under submergence. Besides, they would be provided all other benefits as laid down in the Policy for them.

B **The figures are based on the survey conducted by Rehabilitation Directorate, Government of Uttaranchal in 200 I.

PRESENT STATUS OF RURAL REHABILITATION S. Description No. of Total No. of Fully No. of fully Balance No. affected land Affected affected affected of fully c Villagers affected (in acres) Families families to be families affected rehabilited families rehabilitat- from ed rehabilition

TOTAL 109 4930.841 9239 5429 3007 2422

E Add 5% Extra (for landless persons + increase families since last survey) : 121

BALANCE FAMILIES OF TEHRI DAM FOR RESETTLEMENT: 2543.

F Note : (i) Above details are based on survey conducted in the year 200 I.

(ii) *3810 families are partially affected families, which are not to be shifted."

G A socio-economic study of the families rehabilitated was conducted by the Administrative Staff College of India, Hyderbad in March 1993. Similarly, the Estimates Committee of U.P. Legislature has also visited some of the resettlement colonies in 1989 and an extract from their report reads as follows :

H "The Committee during its visit inspected the resettlement colonies

N.D. JAYAL v. U.0.I. [RAJENDRA BABU, J.] 197 at Bhaniawala, Raiwala and Pathri Block The Committee found A that the facilities provided in these colonies are better than any village in the country. There are well laid roads. There is provision for street lighting. Provisions for Irrigation and Drinking water are available. Efforts have been made to provide the facilities of Hospitals and Schools." B There have been several further improvements in the rehabilitation package for the Project affected families. House construction assistance for Old Tehri land owners was increased from the minimum of Rs. 60,000 to Rs. 1,25,000 without any deduction of previously paid compensation which corresponding increase in other slabs. Thus, the amount of house construction assistance admissible to urban house/land owner families as under:

I. Tenants to be provided constructed flat at lower rate of pre-1989 cost i.e., @Rs. 1819 per sq.m. in place of Rs. 3771 per sq.m. The hire purchase scheme, therefore, as mentioned in the rehabilitation policy has been withdrawn.

2. The shop keepers of old Tehri town to be provided shops in NIT/ Dehradun!Rishikesh at pre-1989 cost i.e., @Rs. 1440 per sq.m. in place of Rs. 3707 per sq.m. E

3. The Government ofUttaranchal have on 7.7.2001 allowed to the shopkeepers of Old Tehri Town a goodwill grant varying from Rs. I to 3 lacs on handing over the possession of their shops. 620 shopkeepers have been paid this amount upto 31.10.200 I. F

4. The Government of Uttaranchal have also allowed 46 nos. of advocates who were practicing before year 1985 to receive a grant of Rs. 1.50 lacs each, distribution of which is under process.

Further proposals have also been made for changes in the conditions of eligibility for allotment of 2 acres of land for such of those persons who G had sold their holding to meet emergent needs before the issue of Section 4( I) notification under the Land Acquisition Act, grant of house construction allowance to rural families, increase in the amount of cash grants for purchase of seeds and fertilizers, and increase in the amount of cash in lieu of land allotment to Rs. 5 lacs as against the existing limit of Rs. 2 lacs. H

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A Proposals had since been discussed with the Government of India in inter- ministerial meeting held on 14.12.2001. Further developmental activities are also to be carried out including construction of bridges and roads, establishment of degree and intermediate colleges in rural areas, an ITI, upgradation and setting up of hospital/medical facilities, improvement of B electricity lines and sub-station, etc. The Government further gives the details of the land available and the proposed number of families for resettlement. For grievance redressal certain camps had been organised by the Director, Rehabilitation approved by the Government and a grievance redressal cell is functioning in the Rehabilitation Directorate, Uttaranchal C Government. Coordination Committee under the Chairmanship of the Commissioner, Garhwal and Co-chairmanship of the CMD, THDC and having Government officials and public representatives as its members, monitors the progress and coordinates between different departments about the progress of work and redresses the difficulties experienced by different departments and partially affected families and give its decision/directions. D The Government has also set out details on the Project Works to which reference at this stage may not be necessary.

On the question of resettlement and rehabilitation, the first phase covering those affected due to construction of coffer dam and closure of E diversion tunnels T3/T4 is complete and in the second phase, all remaining families to be affected due to impoundment of reservoir would be rehabilitated. Details of the same are set out as under :

"Urban Total Affected Families:

F 5291 [100% families have been compensated in the form of houses, plots and shops except affected families from Koteshwar dam]

Gramin Total Affected Families:

9239 (Compensation paid - 7291 compensation yet to be paid - G 1948]." It is no doubt true that in regard to certain aspects such as Catchment Area Treatment, conditions imposed are not fully implemented and it is not very clear from various affidavits filed whether in regard flora and fauna also the conditions have been fulfilled or not. When pari-passu

N.D. JAYAL v. U.0.1. [RAJENDRA BABU, J.] 199

conditions have been imposed, it is necessary that the conditions are fulfilled along with the construction of the engineering works. In refuting the contention of the petitioners that impoundment in the reservoir has been done before the pari-passu implementation of environment and forest conditional clearances, it is stated as follows:

"Diversiun tunnels on the right bank, T3/T4 have been closed in B December 200 I for taking up construction of stilling basin and shaft spillway. The reduced levels of T3 and T4 tunnels are 606 Mand 609 M respectively. Diversion tunnels on the left bank, Tl/ T2 have been kept open for discharging the water downstream. The reduced level of both Tl and T2 is the same viz., 632 M. The C current quantity of discharge remains unabated from the discharge prior to the start of project construction. There is no alteration/ reduction in quantity of water discharged from the river prior to taking up the project and as of now. The maximum discharge in the river observed during floods in the year 1978, that is 3669 D cumecs.

Impoundment in the reservoir is generally done for the purpose of deriving benefits from the storage by creating facility for irrigation, drinking water supply, power generation etc. As a E matter of fact, none of the benefits are presently accruing from the project at the current stage. Diversion tunnels T3/T4 have been closed for taking up construction of stilling basin before they are permanently closed."

It is submitted on behalfof the respondents that the initial impoundment in the reservoir will start with the closure of diversion tunnels nm and water level rising to EL 700 M. The maximum draw down level is EL 740 M. The reservoir spread at EL 700 M will be 10 sq. km. Compared to full reservoir spread at 830 M of 44 sq.km. The present water spread ofreservoir at EL 632 Mis 1.2 sq.km. only. It is also made clear on behalf of the respondents that this implied that commensurate safeguards in the works related to Catchment Area Treatment, Command Area Development, Rehabilitation and resettlement, protection of flora and fauna, disaster management plan, etc. are ensured along with the progress of the construction works and it was also implied that the completion of project meant rise H

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A in water level in the reservoir and simultaneously increase in the water spread.

It is made clear that the condition of pari-passu implementation of conditions prior to the commissioning of the project shall be closely B monitored under the existing mechanism set up by MoEF and the project authorities will ensure that prior to closing of diversion tunnels Tl /T2 for impoundm'ent of the reservoir, evacuation, resettlement and rehabilitation are completed in all respects. In addition, the catchment area treatment of direct draining areas shall be completed and the project authority will obtain clearance from MoEF before closing the outlet at EL 700 M. An C additional affidavit has also been filed on behalf of the Union of India to the effect that a high level inter-ministerial review committee would be constituted consisting of Secretaries of all the concerned Ministries of the Central Government to examine various aspects and closely monitoring of the same. It is only after the completion of these conditions, impoundment D would start. This categorical statement made by the respondents should assure the petitioners that no impoundment would be allowed until all the conditions in the Environmental Clearance Certificate of the Tehri Dam dated July 19, 1990 are complied with and stand fulfilled.

E The petitioners have disputed that the respondents have complied with the conditions of clearance. But a careful analysis of their pleadings will indicate the dispute is to the extent of compliance only and not that there is no compliance at all. On behalf of the Union of India a status report supported by an affidavit is filed which indicates that there is substantial compliance with all the conditions. We have in detail discussed the various facts set out in the said affidavit and status in the earlier portion of this order.

In this background, we find that the petitioners have not established or is there any material to conclude that the Project work is being carried on without complying with the conditions of clearance. Though there were certain lapses at certain stages, they were taken care of by monitoring agencies.

To ensure that all the conditions for environmental clearance are fulfilled and for proper monitoring, we transfer all these cases to the High

N.D. JAY AL v. U.0.1. [RAJENDRA BABU, J.] 201

Court ofUttaranchal to be dealt with by a Division Bench. The High Court A shall deal with these matters as if filed before it and shall be at liberty to pass any orders. However, it is made clear that it shall not be open to re-examine the matters such as safety of the dam and other aspects relating to implementation of conditions contained in the Government orders which have been decided in this case. This course we are adopting following a line of cases in Indian Council For Enviro-Legal Action v. Union of India & Ors., [1996] 5 SCC 281; ML. Sud & Ors. v. Union of India & Ors., [1992] Supp. 2 SCC 123, and Mohan Chand v. Union of India & Ors., [1995] Supp. 3 SCC 425, which were all cases filed under Article 32 of the Constitution and in one of the cases, which pertained to environmental issues, it was observed as follows :

"As far as this Court is concerned, being conscious of its constitutional obligation to protect the fundamental rights of the people, it has issued directions in various types of cases relating to the protection of environment and preventing pollution. For effective orders to be passed, so as to ensure that there can be protection of environment along with development, it becomes necessary for the court dealing with such issues to know about the local conditions. Such conditions in different parts of the country are supposed to be better known to the High Courts. The High E Courts would be in a better position to ascertain facts and to ensure and examine the implementation of the anti-pollution laws where the allegations relate to the spreading of pollution or non- compliance of other legal provisions leading to the infringement of the anti-pollution laws. For a more effective control and monitoring of such laws, the High Courts have to shoulder greater responsibilities in tackling such issues which arise or pertain to the geographical areas within their respective States. Even in case~ which have ramifications all over India, where general directions are issued by this Court, more effective implementation of the same can, in a number of cases, be effected, if the High Courts concerned assume the responsibility of seeing to the enforcement of the laws and examine the complaints, mostly made by the local inhabitants, about the infringement of the laws and spreading of pollution or degradation of ecology." H

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A [See: Indian Council For Enviro-Legal Action's case (supra), at p. 301]

Proceedings arising under Article 32 need not always be dealt with by this Court alone and in appropriate cases suitable directions, including transfer of the matter, can be issued to High Courts or other authorities (Like, National Human Rights Commission) to deal with such matters. Thus, we find that it is legal and expedient to transfer these cases to the High Court of Uttaranchal.

Accordingly, with these directions, this petition shall stand disposed of.

T.C. (C) NO. 5011996, T.C. (C) NO. 5111996, T.C. (C) N0.5211996, T.C. (C) NO. 5311996 :

In the light of the orders made in Writ Petition No. 295 OF 1992, D these Transferred Cases shall stand disposed of in the same terms as set forth above.

DHARMADHIKARI, J. : Having carefully perused the opinion of learned Brother S. Rajendra Babu J. I find myself unable to agree with him E that no directions to the respondents in this Writ Petition are required. In my considered opinion, looking to the dimensions and implications of the case on environment and human rights a monitoring mechanism is required to be set up and activated to ensure compliance of the conditions on which clearance was granted to the construction of a dam in Himalayan Valley p near Tehri. It may be legal but not efficacious to transfer this writ petition under Article 32 of the Constitution of India to the High Court of Uttaranchal for monitoring the compliance of the conditions on which environmental clearance was given to the Tehri Dam Project. With utmost respect, therefore, I have considered it necessary to record my separate opinion with conclusions containing the directions which are required to be issued to the respondents in theis writ petition.

Learned Brother S. Rajendra Babu J. has in detail given necessary facts an events leading to the fillign the writ petition. I would, therefore, confine myself to giving the necessary background on which my opinion and conclusions are based.

N.D. JA YAL V. U.0.1. [DHARMADHIKARI, J.] 203

Jn this writ petition under Article 32 of the C<instition of India filed by the petitioners in public interest, directions are sought to be issued to the respondents, representing the authorities and Corporation or Union and State Governments, to take necessary measures for protecting environment and human rights which are likely to be adversely affected by construction of Dam in the Valley of Himalayas near Tehri town of the new State of B Uttaranchal.

The rivers Bhagirathi and Bhilangana rise from glaciers in the Himalayas, part of Garhwal of erstwhile North-Western UP and now part of the new State of Uttaranchal. The two rivers flow south to the plains to form confluence as the Holy river Ganga. Close to the Garhwal town ofTehri at the confluence of two rivers Bhagirathi and Bhilangana more than three billion $ clay core rockfill dam is beign constructed in the upper Ganga basin. The dam area will cover 45 kms. Bhagirathi valley and 25 kms. Bhilangana valley with water spread over an area of 42.5 sq. kms. which will submerge nearly I 00 villages including the town Tehri as many as 90,000 families will be relocated as the result of the dam project. The Government oflndia and the State fo Uttranchal claim that the dam project had undertaken to generate 2,400 mg. watt of electricity and will create irrigation facilities for 2,070 lakh hectares of land. There are plans also to create supply of 500 cusecs of water of New Delhi. E Human Rights and environment activists have approached this Court to protect the interest of general public and particularly the people living in Tehri town and in surrounding area of Garhwal who are likely to be dispalced fo completion of the Project. They have also raised issues of great importance such as the safety of the Dam and the likely devastation and Joss of properties and lives of the people in the down stream, if the Dam, being situated in a highly earth quake prone area, bursts or leaks. It is stated that structurally the dam may be incapable of withstanding earthquake of above seven on Richter scale. It is submitted that great danger is posed to down stream cities and population particularly the holy Pilgrim centres like Haridwar and Rishikesh which are in danger zone. The structural flows of the dam and rehabilitation policies provoked public agitation and international attention. The Dam Project was stopped which had begun in 1978. H

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A A petition was filed in this Court by Tehri Banch Virodhi Sangh Samiti in the year 1985 for intervention of the Court to stop construction of the Dam as it puts great threat to the safety and lives of the people living in surrounding villages and towns and also holy places down stream. The petition was dismissed by this court and the decision is reported in (1992] B Suppl. I sec 44. The Court relied on the techincal data furnished by the Government which had prepared the Plans for Tehri Dam Project and held that since all aspects of safely have been taken into account by Indian and foreign Experts, the Court has no ground before it to restrain the authorities from proceeding ahead with the implementation of the Project.

c In the year 1986, the Soviet Union agreed to fund the project with loan on concessional terms. As a part of the agreement with the Government of India for funding the Project, the Soviet Experts conducted a review of the proposed Project and gave a finding that the highest seismicity of the Tehri area had not been adequately taken into consideration by Indian D planners. The combined Soviet and Indian teams also found that the life of the Dam claimed to be 100 years may not be accurate and its life would be 62 years or less. They also found that about 85 ,600 people would be displaced by the project.

E At this stage of hearing of the case, several developments which took place in the interregnum are required to be stated. As a result of public agitation and protest from the people of Garhwal region to the Project for construction of Dam, in March 1980, the then Prime Minister of India intervened and directed an in-depth review of the Project by an expert group constituted by the Ministry of Science and Technology. The F technical group submitted its report in 1986 and recommended abandonment of the Project despite expenditure already incurred in the sum of Rs. 2,006 crores. Environmental Appraisal Committee (EAC) which is a Expert Body within the Ministry of Environment and Forests recorded a unanimous conclusion that Tehri Project did not merit environmental clearance and G should be dropped. The Tehri Project was thereafter revived only when USSR Government agreed to provide technical and financial assistance. The Dam Project which was initially taken up by the Irrigation Committee of erstwhile State of Uttar Pradesh was taken over by a joint venture company of Government of India and State Corporation viz., Tehri Hyde! H Development Corporation (respondent herein). The Corporation took over

N.D. JAY AL v. U.0.1. [DHARMADHIKARI, J.] 205 the construction of Dam in July 1988. The Corporation reformulated A Environment Policy. It was in February 1990 that the EAC in the Ministry of Environment and Forests came to the conclusion that taking into consideration the risks and hazards involving ecological and social impact with huge cost and less benefits, the Dam Project does not merit environmental clearance. The exact words of EAC are as under : B "Therefore, taking into consideration the geological seismic setting, risks and hazards and ecological and social impact accompanying the Project, the costs benefits expected and and after a careful examination of the information and data available, the Committee has come to the unanimous conclusion that Tehri Dam Project, c as proposed, should not be taken up as it does not merit environmenal clearance".

In noITfl.a! course, the conclusion of the EAC should have closed the. matter for abandoning the Project, Surprisingly, the continuance of the D Project was entrusted to a Committee of Secretaries. The Committee re- assigned the task to the Department of Mines. The Department of Mines relied on the opinion of Prof. Jaikrishna who is an earthquake Engineer when Dr. V.K. Gaur who is seismologist had given a dissenting opinion and so also the foreign expert Dr. N. Brune. E It is after this re-appraisal of Project from safety point of view by the Department of Mines based on the expert opinion of earthquake Engineer Prof. Jai Krishna, cleamance given was given on 19 .7.1990 to the Project by the Ministry of Environment and Forests. Since by this time the Environment Protection Act 1986 with Environment Protection Rules F framed therefunder had already come into force making it a statutory requirement to obtain clearance from the Environment Department for undertaking the Project of such dimension affecting environment, ecology and human beings, only a conditional clearance was granted to the Project. The various conditions subject to which the environmental clearance to the G Project was granted have been reproduced in the opinion ofleamed Brother S. Rajendra Babu J.

The final condition stated thus : ifthe completion ofstudies,formulation ofAction Plan and their implementation to be scheduled in such a way that H

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A their execution is pari passu with the engineering works is not adhered to, all engineering works of the Project should be stopped and this condition will be enforced under the Provision of Environment Protection Act 1986.

The Ministry of Environment and Forests wrote a letter on 12.4.1991 B expressing dis-satisfaction on failure to comply with the conditions on which environmental clearance was given. The respondent-Corporation was directed to submit comprehensive Environmental Plan for effective implementation failing which remedial or prohibitive action under the Act of 1986 was proposed.

C On 5.1.1991 the petitioner gave a notice under Section !9B of the Act to the Secretary of the Ministry of Environment and Forests stating that the result of non-fulfillment of condition of clearance of the Project by the Corporation, direction should be issued to stop the Project work. Significantly, after service of this notice on 21.10.1991 an earthquake measuring 6.1 on Richter scale hit the Garhwal region causing massive damages to Uttarkashi and Chamoli villages killing 2,000 people. Damage was also caused to constructions for dam already made and Tehri town itself. The Power Ministry, however, maintained that half finished Dam works, were not damaged. This earthquake which shook Garhwal region naturally revived dabates and protests on the location of the Dam and its safety in such a highly earthquake prone region. The petitioners again raised the question as to whether the Dam as designed and completed would withstand likely earthquakes of more than 6.1 on Richter scale. The present petition was filed on 7.12.1991 in which issues of safety of the Dam, its adverse impact on environment, displacement of people and their rehabilitation have all been raised. Specific issue has been raised that due to non-fulfillment of the condition of environmental clearance, there is no legal justification to allow further construction works at the Dam site.

In the communication dated 21. I 0.1994, Additional Director, Ministry G of Environment clearly mentioned that after grant of clearance in 1990, 'the status of implementation of various safeguard measures were lagging far behind'. It was also pointed out that there is an urgent need to evolve monitoring mechanism for the Tehri Dam Project. On 5.12.1995 through an intervention application a leading Human Righ Activist of Garhwal Shri H Sunder Lal Bahuguna sought opportunity of participation in the case by

N.D. JA YAL v. U.0.1. [DHARMADHIKARI, J.) 207 producing on the soot studies of the impact of the Project on the environment and the people of the region.

On the orders of this Court made in this petition on 17. 7.1996 the Government set up two Expert Committees; one on the safety aspects and other on the environment and rehabilitation aspects. The case stood thereafter adjourned several times awaiting the report of the Expert Committees. The subsequent developments were reported to this Court that the Reports of the Committt;es were under consideration of National Committee of seismic design parameters and an Inter-Ministerial Committee of Secretaries of the Department of Environment and Rehabilitation. On 27.10.1998, an affidavit was filed by Secretary, Ministry of Power C indicating that the State Government has given its concurrence to the Report of the Committee on Environment and Rehabilitation aspects.

0'1 2.2.1999 again an affidavit was filed by the Secretary, Ministry of Power placing on record the Government of India's decision to implement the recommendations of both the Committees. In the said affidavit it was also stated that the Government had issued a final order accepting conclusions of group of experts on safet aspects. It is reported, that there is no necessity to undertake further steps as recommended by the experts viz. (1) 3-D Non-Linear Analysis of Dam to evaluate its performance against the maximum credible earthquake (2) Simulated Dam Brake Analysis suggested to be undertaken as a matter of abundant caution by the four experts. It may be mentioned that in the mean time the new State of Uttranchal having been formed comprising Garhwal in which the site of dam falls, the State of Uttranchal has been impleaded as the successor to the erstwhile State of Uttar Pradesh. F

The learned counsel appearing for the petitioner and the intervener in their separate submissions mainly raised two questions based on the constitutional law and the statutory laws i.e. the Environmental Act and the Rules framed thereunder. The thrust of the argument is that from safety G aspect and from adverse impact on environment and human life of the area and more so when conditions on which clearance to the Project had been given have not been fulfilled, this Court should interdict the Project at least till all conditions are fulfilled to the complete satisfaction of the Department of Environment, and this Court. H

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A It is undeniable that execution of river valley projects is an important element of growth and development strategy. The dams have become symbol of national development. The dams too have potentials of solving many economic problems. Control of floods, famines, food shortages, unemployment, urban water shortages and the power shortages are all possible with the help of execution of such dams. These projects do have benefits but they have adverse environmental implications. Tehri dam project is in the valley on Himalayas. The Dam project would involve ousting of thousands of poor villagers and farmers living in the valley. The old Tehri town would be under submergence. The new Tehri Town has been raised and being developed. The basic environmental issues are saving the flora and fauna that is abounding the region. The other aspect is of danger to the upstream and down stream human population because Tehri dam area and surrounding Uttarkashi area had already suffered successive earthquakes in short intervals and the area is known to be seismically unstable. It is held by the exprets, as earthquake-prone. The D Project will also destroy and has already destroyed to a large extent forest tracks. Along the river deforestation has endangered the river itself and after impounding of water there would be large scale erosion of river bank. When such projects are undertaken, there are competing claims of technocrats and engineers eager to put the country on the path of development and E environmentalists who see a serious danger to ecology and environment. These are the two conflicting claims and aspects which need Court's intervention for a balanced approach and consequential remedial action. The problem before the country with more and more dam projects being undertaken is how to make use of natural resources for improving human health, welfare and comfort without depleting or damaging them over a F foreseeable period of time. A strategy for conserving or resources-effective use of non-renewable resources is the imperative demand of modem times. Whereas, minimum sustainable development must not endanger the natural system that supports life on earth, constant technological efforts are demanded for resources-effective production, so that sacrifice of one eco- G system is counter balanced or compensated by recreating another system.

(See discussion on the topic in the Book 'Environmental Solution and Development' authored by Chander Pal at pages 198-201 & 236-237)

By river valley dam projects ther are adverse up-stream impacts and H down stream impacts on environment. The upstrem environmental and

N.D. JA YAL v. U.0.1. [DHARMADHIKARI, J.] 209 ecological impaccts of big dams are : A (I) Soil erosion (2) micro-climatic changes (3) loss of forests, flora & fauna (4) changes in fisheries, especially on spawning grounds (5) chain effects on catchment area due to construction and displacement etc. (6) landslips, siltation and sedimentation (7) breeding of vectors in the B reservoir and increase in related diseases (8) seismicity (9) loss of non forest land (IO) water-logging around reservoir (11) growth of weeds.

Down stream impacts

The down stream environment impacts of the large dams are : c (I) Water-logging and salinity (2) micro-climatic changes (3) reduced water flow and deposition in river, with related impacts on aquatic eco- system, flora and fauna (4)flash floods (5) loss of land fertility along with river (6) vector breeding and increase in related diseases. D These adverse effects have long tenn and irreversible loss of quality of human life and other creatures in the region. In order to meet such adverse impact on environment, a thorough environment impact assessment has to be made before the clearance of the dam. The Department of Environment and Forests has prepared detailed guidelines before a project is cleared. Wherever certain conditions for clearance are imposed they are to be strictly adhered to.

There are economic costs as well as social costs and environment costs involved in a project of construction of large dam. The social costs is also too heavy. It results in wide spread displacement of local people from their ancestral habitat and loww of their traditional occupations. The displacement of economically weaker sections of the society and tribals, is the most serios aspect of displacement from the point of view ofuprooting them from their natural suroundings. Absence of these surroundings in the new settlement colonies shatters theri social, cultural and physical links. G The large dam projects are, therefore, required to be taken care by the Government with utmost concern of the poor and the deprived sections of the society who are necessarily to be displaced from their habitat and shifted to a totally new environment and way of life. The poor and the H

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A marginalized group in carrying out of a dam project suffer most because the natural resources-base of their survival are eroded and cash compensation of land at a different location many times does not fully rehabilitate them. The dams are built by public funds with the aim to satisfy the energy and water needs but what benefit ultimately it would give to the displaced people should also be taken care of. The conflicts over natural resources which frequently come to Courts are therefore conflicts over rights between haves and haves not.

The protest of ecologists, as is brought before us in this Public Interest Litigation, is not to be seen as obstructionists and anti-progress because the petitioners are actuated by desire to obstruct ecological destruction and to halt the process that results in progress for a few and hardships for many.

The Government can utilize the natural resources for common good but cannot be allowed to exploit or virtually plunder it in a manner to deprive those presently sustaining their lives on those natural resources and deprive the coming generations who have also a right of living on those resources. On these fundamental issues, there is a cleavage between technological experts, environmentalists and human rights activists. The court is faced with an issue not easy to decide as to which Section of experts and environmentalists is right in their approach.

Ours is a constitutional democracy and we are called a 'Welfare State'. "Welfare" not me'an that we have only to strive for fulfillment of political theory "Greatest good of greatest number". Our motto from vedic times has been sarva jan Hitay, sarva jan sukhai (benefit of all and happiness of all).

Our Vedic prayer is ....

"Let all be happy, let all be sin-free, let everyone see good in everything. There should be no suffering anywhere. " G It is, therefore, necessary that when a multimillion big dam project is undertaken to generate electricity and for providing water for irrigation and dimking, we should not leave those living by the side of river from generations to a suffering by displacement to a far off place which would deprive them of their life and life style. In the march of progress, the

N.D. JAY AL v. U.0.1. [DHARMADHIKARI, J.] 211

humblest and the weakest should not be left behind. Man living in the hills or valleys is dependant for survival on natural resources. To remove him and rehabilitate him in the plains is taking a fish from the river and putting it into a artificial reservoir or an equarium where it might survive but can never be happy. All efforts are, therefore, required to be made that the dispalced or oustees, who were hitherto getting benefits form the river for their survival, are adequately compensated by minimum possible disturbance to their life sources and style of life. In implementation of large river dam projects the utmost concern of the State should be interest of the oustees. Before electricity is generated and drinking water is made available to urban population up to Delhi, care has to be first given to the needs and demands of the people who live in the hills and valley and face ouster. Before the reservoir is full to its optimum capacity to generate electricity and provide irrigation, the work of rehabilitation to the optimum satisfaction of the oustets must be completed. In this direction, the affidavit filed by the Ministry of Environment, does not vouchsafe that the work of rehabilitation has been completed to the satisfaction ofnot only the officials of the rehabilitation department but the oustees themselves speaking individually or collectively.

On behalf of Union oflnida and the Tehri Development Corporation, the separate reply on affidavit has been filed to counter the allegations made by the petitioner that the conditions granted in the order of clearance given by the Ministry fo Environment have not been complied with Learned counsel Shri Kirit Rawal made strenuous effort by taking us through to the several reports of the committees received from time to time. The techinical data and other information collected in this matter of fulfillment of the conditions of clearance have all been placed before us. F The submission made is that where the conditions imposed for clearance are to be implemented pari passu with the engineering works, it is comtemplated by the conditions themselves that side by side with the engineering work, the conditons to protect environment for treatment of catchment area, development of Common Area and rehabilitation will go G on. In a project of such huge dimensions involving multifarious engineering and non-engineering activities, fulfillment of conditions laid down to undertake the Project have to be taken up simultaneously with the construction work of the dam and proportionately with the progress of engineering work. A Chart to show such progress has been submitted by H

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A Tehri Development Corporation to impress upon this Court that although the time schedule has not been strictly adhered to because of the several difficulties and obstructions in the progress of the project, the conditions have been achieved in proportion to the engineering work already taken. It is submitted that Corporation is not guilty of non-fulfillment of the B conditions and no !lrohibitive action is called for.

So far as the safety aspects of the dam are concerned, reliance is placed on the technical opinion of the exoerts, which says that a rock fill dam does not require three-dimensional studies to estimate its safety against earthquake. It is submitted that such computer based theree- C dimensional studies have been found to be only of theoretical value. Two- dimensional test already done fully ensures safety of the "dam against an earthquake even up to 7 on Richter Scale. It is submitted that the two- dimensional studies of the dam is made on an assumption that the impact of earthquake of 7 or more Richter Scale would be unifonn throughout the D length and breadth of the dam. The experts have found such two- dimensional studies sufficient for the safety of the dam. Suggestion of only one of the experts for conducting a three-dimensional test only by way of an abundant caution has been found by the team of experts neither feasible nor desirable.

E Attempt has also been made by filing item-wise comments that various recommendations of Hanumantha Rao Committee were in-depth gone into by Inter-Departmental Committee and most of the recommendations except a few have been accepted and also substantially implemented in proportion to the construction work already undertaken. F On behalf of the Corporation, a categorical statement has been made that until all the conditions for the clearance are not fulfilled, Tunnel Nos. 3 & 4 shall not be opened and the reservoir shall not be filled beyond its present water level. People presently living in the catchment area in Tehri town would not be evacuated till they are paid either cash compensation or land in lieu thereof, with shelter. The Corporation has also presented before us in the course of hearing Status Report of fulfillment of the various conditions at the project site up to 31.01.2003.

The project for construction of large dams has been undertaken to provide electricity and irrigation facilities. From environmental and social

N.D. JAYAL v. U.0.1. [DHARMADHIKARI, J.] 213 prospective, large dams raise variety of issues. They entail massive incursions into natural eco-system and human settlements. When the project is undertaken, it is asserted that these incursions can be minimised by appropriate steps like Environmental Impact Assesssment and preventive/ ameliorative measures. It is with this porpose that the Environmental Act and rules require the project to ·take care of the adverse impact on environment and human population. Environmental clearance now is a legal requirement. A machanism has also been evolved for evalution of the environmental impact and its monitoring. Construction of large dams are accompanied by significant alterations in the up-stream and the down- stream, physical and biological environment. For building reservoirs, large track of forest lands get submerged. Water logging and salinasation affect the canal irrigated land with varying degrees of severity. Several species of wild animals and plants become extinct. There is a likelihood of several diseases like Malaria spreading.

On the positive side, the alleviation of water scarcity leads to improvement in the health standard of people and reduction in diseases caused by shortage of potable water. Barren lands become green. New habitats are created for water birds.

In order to take care of the negative aspects of the large dams, the conditions for clearance generally require:-

I. Compensatory afforestation.

2. Treatment of catchment area to prevent prematured silt in other aspects.

3. Measures to prevent or minimise water logging and salinasation in the command area and around the reservoir.

4. Measures to prevent and minimise impact on health.

5. Safeguards against ill effects to the seismicity.

6. Ways of saving translocated wild plants and animals. G

7. Proving alternative fules to project labour and ladders for migrant fish to cross over the dam.

The Tehri Dam Project has obtaind a clearance and a major portion of the dam has already been constructed. The catchment area has not been H

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A filled with water as the two diversion channels having gates have not been closed for filling the dam. This is the right stage when there is necessity of close monitoring, evaluation and reappraisal of work to ascertain compliance of the conditions and check adverse impact on environment as also ensure rehabilitation of the people displaced from the dam area and the old Tehri town. In the instant case, the Corpration claims that it has fulfilled the conditions parri passu with the engineering works. This high claim is with the admission that the time Schedule in the condition of clearance has not been kept up. This is the proper stage when a thorough assessment by a team of experts in relevant branches is required to be undertaken for ascertaining whether the conditions of clearance have been fulfilled pari passu with the engineering works. If this is not done before the dam is allowed to be filled, adverse impact caused on environment would be irreversible and would not be compensated because of the severe scale of the ecological intervention. The mistake that might have been done in the past with regard to other similar large and small dams should not be allowed to be repeated in the Tehri Dam Project which is different from other dam Projects in plains. Tehri dam being located in the Himalayas the adverse environmental impact would both be up-stream and down-stream. Meticulous care and precaution, therefore, is required to be taken for a dam which is being constructed on a high altitude area posing threat to down- E stream population. If the safety aspects are not fully taken care of and the command area treatment is not done to the desired level or standard, the consequence may be catastrophic and beyond repair.

Only two aspects, in my considered opinion, need special attention and consequent directions by this Court to the concerned authorities represented through the respondents in this case.

J. Safety aspect of the Dam:

Tehri Dam have been cleared for construction in a seismically, unstable, earthquake prone area in the valley of Himalayas.

The project was earlier not cleared on the opinion of the experts as a severe earthquake could burst the dam and destroy several important temples, towns and holy places like Rishikesh and Haridwar. There are other thickly populated towns and villages down stream. The members of

N.D. JAYAL v. U.0.1. [DHARMADHIKARI, J.] 215 the Environmental Appraisal Committee (EAC) which has an expert body within the Ministry of Environmental amd Forest had earlier unanimously concluded that the Tehri project diC: not merit environment clearance and should be abandoned. Thereafter, a Committee of Secretaries of concerned Departments was constituted which did not agree with the EAC's recommendati0ns. A dissenting note was submitted by expert Dr. V.K. B Gaur to the Committee of Secretaries. The Committee then assigned reassessment of the task of safety to the department of mines. Professor Jai Krishna an earthquake engineer but not a seismologist opined in favour of the project. The foreign expert Professor James D. Brune was a seismologist who did not favour the project due to safety aspect involved. C On safety aspects the matter was brought to this Court in case reported in Tehri Bandh Virodhi Sangarsh Samiti and Ors. v. State of U.P. & Ors., [I 992] (supp) I SCC 44 by environmentalists. This Court while refusing to interfere with the matter went by the opinion of Earthquake Engineer Professor Jai Krishna. In his own language, "The design of the Tehri Dam D as suggested by Indian and Soviet experts was quiet safe against the strongest earthquake in the region".

The petitioners in this case on the basis of expert's opinion of Professor Jai Krishna and foreign expert James D. Brune submitted that as an extra precautionary measure 3-D Non-Linear Analysis of the dam should be undertaken to evaluate its performance against the maximum possible earthquake. A simulated Dam Break Analysis (OBA) has also been suggested by the four experts as a matter of abundant caution.

On behalf of the respondents the counsel separately appearing for different departments and the project authorities have taken uniform stand that 3-D Non-Linear Analysis is neither essential nor feasible for_ want of necessary competent expertise in India and even abroad. It has also been argued that challenge to Si:!fety aspects have been negatived in the earlier decision of this Court rendered in 1992 and the project was allowed to go ahead and by now has progressed to a very large extent.

On the safety aspect of the dam particularly when the location of the dam is in a highly earthquake prone zone in the valleys of Himalayas, all additional safeguards are required to be undertaken on the 'precautionary principle' as contained in 'the RIO Declaration on Environment and H

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A Development' taken in the United Nation conference held in January 1992 to which India is a party. The precautionary principle in RIO declaration reads:

"In order to protect the environment, the precautionary approach shall be widely applied by State accordingly to their capabilities. B Where there are threats of series of reversible damage lack offull scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environment degradation" [Emphasis supplied}

C The precautionary principle accepted by India being a party and significatory to international agreement and understandings in the field of environment has become part of domestic law i.e. Environmental (Protection) Act. The Governmental authorities in India cannot be permitted to set up plea of scientific uncertainty of 3-D Non-Linear Analysis of the dam. On D the safety aspect the pleas like res judicata based on earlier decision of this. Court cannot be allowed to be raised when further developments and events in the course of the project require further precautions to be taken before filling the dam to the optimum capacity. It is not the casse of the respondents that 3-D Non-Linear Analysis of the dam cannot be undertaken with the assistance of foreign experts on the subject. To take care of all E eventualities of damage to dam by earthquake, 3-D Non-Linear Analysis of the dam suggested by four experts as a matter of abundant caution must be undertaken. It is only after 3-D Non-Linear Analysis of the dam is completed and the opinion of the experts on the safety aspect is again sought that further impoundment of the dam should be allowed. In M. C. F Mehta v. Union ofIndia (Trapezium matter), [1997] 2 SCC 353 this Court has applied 'Polluter pays principle' and 'Precautionary principle' of International law as law of the land of this country, India being party to the United Nation Conference and signatory to International Declarations and Agreements. G Requirement of the provisions of the Act and the conditional clearance

Before taking up the rehabilitation aspect for issuing necessary directions it is required to be stated that in accordance with the provisions of Section 3 of Environment Protection Act, 1986 and Rule 5 of the H Environmental Rules 1986, the Tehri Dam Project was granted conditional

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clearance. A notification dated 27th January, 1994 has been issued under A the Act and the rules on Environmental Impact Assessment of Development Preflect. Under the said notification an Environmental Impact Assessment is required to be made by the Impact Assessment Agency. Without a proper environmental impact assessment no project can be accorded environmental clearance. In the present case the environmental clearance was given on B

19. 7. I 990 before the issuance of the notification on 27th January, I 994 on the Environmental Impact Assessment of Development Project. Nonetheless, the directions and guidelines contained in the said notification have to be applied even to the existing dam projects and a strict monitoring of the Impact of the project of the environment has to be done by the Central Government through its Ministry of Environment and Forests. The clearance C to the project was given in the year I 990 on amongst others the following specific condition "completion of status, formulation of action plans and their implementation will be scheduled in such a way that their execution is pari passu failing which the works could be brought to a halt". This condition was enforceable under the provisions of Environment (Protection) D Act, 1986.

The letter of the Secretary of Ministry of Environment and Forest to the Secretary Ministry of Labour dated 12.4.1991 clearly shows failure on the part ofTehri Haydel Development Corporation (THDC) to comply with E the conditions granted for environment clearance. The Ministry has expressed total dissatisfaction on the compliance. The petitioners gave a notice under Section 19(b) of the Act on 5.9.1991 to the Authorities pointing out that non-fulfillment of the conditions provided in the environment clearance within the stipulated time-frame has resulted in lapse of said clearance and the work of project should be stopped forthwith. F On 20.10.1991 earthquake of 6.6 on ritchter scale hit Uttarkashi causing immense destruction of property and life. The uncompleted dam also suffered trauma but no damage was reported. Even during pendency of this petition successive earthquakes shook Uttranchal regions in the vicinity of dam site. Thereafter, the petitioners had been constantly writing to the G authorities that for want' of non-fulfillment of the conditional clearance the project construction work should be stopped. There is on record a note dated 21.10.1994 of Additional Director of Ministry of Environment recording that although the environment clearance was granted to the project in the year 1990, 'the status of implementation of various safeguard H

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A measures were lagging far behind'. It was also pointed out in the note of the Director that there was an urgent need 'to evolve a monitoring mechanism for the Tehri Dam Project'.

Where the requirements of law as contained in the Act, the Rules and the notification issued thereunder contemplate imposition of conditions for clearance to a project to minimise its adverse impact on environment, the Authorities granting such clearance possess a power couple with duty and obligation to ensure fulfillment of the conditions on the basis of which the environmental clearance is granted. We are sorry to note that in the face of so may conflicting expert opinions on the project undertaken in a highly earthquake prone region the conditional environmental clearance was granted without monitoring the work of the project to ensure fulfillment of those conditions.

A strict vigil on fulfillment of the conditions of environmental clearance was required by the Ministry of Environment and Forest and stringent action should have been taken against the Authorities for not adhering to pari passu condition of clearance. In the latest affidavit filed by the Ministry of Environment and Forest it is promised that in future strict monitoring of the fulfillment of the conditions granted for environment clearance would be done. Granting a conditional clearance is not a mere formality. The power to grant clearance even though with conditions was accompanied by duty on the part of the Ministry to have effective check on the progress of project and ensure fulfillment of the conditions in accordance with pari passu clause. Since the Ministry of Environment and Forest has failed to discharge its duty of exercising proper check on the fulfillment of pari passu clause of conditional clearance, it is necessary to provide an independent mechanism through a forum of inter-departmental authorities and experts so that the project presently undertaken by the Corporation which the aid, asistance and finances provided by the States, Central Goverment and the World Bank is allowed to progress and be completed strictly on fulfillment of the conditions on which environmental clearance was granted.

2. Rehabilitation aspect

The Ministry of Environment and Forests has filed an affidavit before us showing the present position of progress in resettlement and rehabilitation

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activities undertaken as part of fullfillment of the conditional clearance of A the project. It may be recalled that the Ministry of Welfare of Government

- of India in the year 1985 initiated a Rehabilitation Policy. It came to be approved only in the year 1997. Thus the National policy, Packages and Guidelines for resettlement and rehabilitation accept the following principles :- B

1Copy pinpoint1. Displacement should be minimised. So people displacing projects should be the last option after studying non-displacing and least displacing projects, and if this is the only alternative.

2Copy pinpoint2. The public purpose based on which people are displaced or C otherwise deprived of their livelihood should be defined. Prior informed consent to be affected by it should be mandatory after the project is explained to them and if they see that is according to the public purpose thus defined properly. D

3Copy pinpoint3. Replacement value to be the norm for compensation, against the present norm of market value which is totally inadequate.

4Copy pinpoint4. Right to life with dignity enshrined in Article 21 of the Constitution should be respected. So, the displaced persons should have a better lifestyle E after displacement than before it because they are paying the price of national development.

5Copy pinpoint5. Displaced Persons (DPs/PAPs) should be the first beneficiaries of any project. F

6Copy pinpoint6. Rehabilitation is mandatory and should go on side by side with the project.

7Copy pinpoint7. Land for land is recommended to all and is mandatory for tribals. Compensation is to be provided for common property resources and forest G lands that may be acquired from their dependants.

8Copy pinpoint8. The DPs/PAPs are defined in a way as to include not only land onwers but also those who depend on it without owning it, and those who have common property resources as their sustenance. H

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A This Court in the case of Karjan Jalasay Yojana Assargrasth Shakhar Ane Snagharsh Samiti v. State of Gujarat. AIR (1987) SC 532 has held thus:

"Simultaneously with taking possession of the acquired land from any person in occupation of it, such person shall be provided B either alternative land of equal quality but not exceeding three acres in areaand ifthat is not possible, then alternative employment where he woud be assured a minimum wage ...... No possession of any part of the acquired land shall be taken from any person unless and until he is either provided with alternative land or c alternative employment which is not tern porary in character so that he and the members of his family do not remain without means of subsistance ... if for any reason the State Government is not able to provide alternative land or arrange for alternative employment, the State Government will subject to the same D exception, pay to the head of the family at the latter place of residence compensation equivalent to minimum wage every fortnight during the period alternative land or employment is not provided."

E The above directions of this Court in the case of Karjan Jalasay (supra) were based on the factual realities that for most marginal farmers and tribals monetary compensation for acquisition of land can never be sustainable source of dignified living. A new piece of alternative land of equal quality should be given to those dispossessed from land due to F acquisition for public purpose. In the last affidavit submitted by Ministry of Environment and Forests before us to show the status of the progress of rehabilitation ..... as on 3rd February, 2003, the figures disclose that out of total 9,239 rural affected families cash compensation is not paid to 1,948 families and 260 families affected by Koteshwar Dam have also not received cash compensation. G For providing agricultural land to farmers who have been ousted it is stated that land is being acquired down the valley in the vicinity of Dehradun city. The Government has thus been involved in exercise of rehabilitating the dam oustees on acquired land from other land holders who in tum will have to be ousted. This will give rise to chain reaction

N.D. JAY AL V. U.0.l. [DHARMADHIKARI, J.] 221

of making other people landless. The process has not yet been completed and according to the affidavit of the Ministry itself the work of resettlement and rehabilitation is underway.

When natural resources are exploited in a big way for big projects by State with all sincerity and good intentions for general common benefit, social conflicts arise as a natural adverse consequence. Generally the conflicts arise between marginal farmers, peasants and other landless persons who survive on natural resources and those who are better off, rich or affluent and who desire to undertake agriculture and industry. When river projects for dams are undertaken to generate electricity and improve irrigation facilities, conflicts arise between people living up-stream who have to necessarily lose their source of living and habitat and those living down-stream who need water and electricity for their homes, industries and agricultural fields. When such social conflicts between different social groups i.e. up-stream population and down-stream population, between rural population and urban population, between poor surviving on natural resources and others needing natural resources for further development arise what should be the duty and priorities of the State and its authorities who have undertaken the projects? When such . social conflicts arise between poor and more needy on one side and rich or affluent or less needy on the other, prior attention has to be paid to the former group which is both financially and politically weak. Such less advantaged group is expected to be given prior attention by Welfare State like ours which is committed and obliged by the Constitution, particularly by its provisions contained in the Preamble, Fundamental rights, Fundamental duties and Directive Principles, to take care of such deprived sections of people who are likely to lose their home and source of livelihood.

Mistakes in resettlement and rehabilitation of people ousted by other similar Projects committed in the past have to be avoided. The construction of dam cannot be allowed to proceed and be completed leaving the oustees ~~~ G The oustees of Tehri Dam Project who are used to valley life in Himalayas are proposed to be resettled and rehabilitated in newly built Tehri Town and those depending on forest and agriculture and proposed to be given cash compenation or land down-stream near Dehradun city. H

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A The Ministry of Environment and Forests (MoEF) in their last affidavit has given a status report to show that resettlement work is in progress but not completed. In the affidavit it is promised as under : .. "The Project authority shall ensure that prior to closing of diversion turnnels Tl/T2 for impoundment of the Reservoir; evacuation, resettlement B and rehabilitation are completed in all respects. In addition, the catchment area and treatment of direct draining areas etc. shall be completed. The Project Authority shall obtain clearance from MoEF before closing the outlet at EL 700 m ."

C The RIO declaration of environment and development in the United Nations' Conference held in June 1992 to which India was a party and signatory and on which the Environment Protection Act, its Rules and Policies are modeled, obligates the Authorities oflndia by the norms fixed in International and Domestic Law that "the environmental and natural D resources of people under operation, domination and occupation shall be protected." A mention has already been made above of the !ates rehabilitation policy framed by the Government of India and relevant part has been quoted. These legal and policy obligations are enforceable against the State.

E In my considered option, therefoe, the present status of dam project, keeping in view the pari passu condition on which "environmental clearance" has been granted by MoEF, calls for issuing following directions to the respondents who represent various Ministries & departments of Central and State Government as also the Corporation to which the project F has been entrusted for implementation.

(I) The Central Government in terms of the recommendations of Expert Committee for Environmental Impact Assessment as contained in Schedule III of the Notification dated 27th January, 1994 issued in exercise of powers under sub-section (i) and Cl.V of sub-section (2) of Section 3 G of Environment (Portection) Act, 1986 read with Cl.(f) of sub-Rule (3) of Rule 5 of Environment (Protection) Act, 1986 shall constitute a Committee of Expertrs and representatives ofNGOs (if not already constituted) for the purpose of investigating, ascertaining and reporting whether the pari passu condition laid down in the environment clearance of the Project have been JI fulfilled or not by the authorites of the Project. The aforesaid committee

N.D. JA YAL v. U.0.1. [DHARMADHIKARI, J.] 223 will inspect and report on the status of the work to the Central Government A every three months and in case the conditions, as laid down in the clearance, are not fulfilled recommend the remedial or corrective measures/ ' • actions .

(2) To take care of the safety aspect,until 3-D Non-Linear Analysis B and Dam Break Analysis are completed as recommended by the Committee on safety and the result assessed by the aforesaid Expert Committee is submitted to the Central Government, diversion tunnels TIIT2 for impoundment of the Reservoir shall not be closed.

(3) The Expert Committee for environment Impact Assessment C constituted under Schedule III of Notification dated 27th January 1994 will also look into and submit status report on the progress of resettlement and rehabilitation measures. There will be no impoundment of the Reservoir untill resettlement and rehabilitation work is fully completed in all respects. D (4) An effective Grievance Redressal Cell headed by an independent expert in the field of social science shall be set up by the State Government with the help of Central Government for solving rehabilitation and resettlement problems of the oustees of the Project. The Grievance Redressal Cell shall submit its status report every three months to the Expert Committee constituted under Schedule III of the notification E (supra).

This writ petition succeeds to the extent of directions made above.

All connected matters and applications also stand disposed of. The p petitioners shall be entitled to all costs incurred by them in prosecuting these petitions in public interest from the respondents who will share them in equal proportion.

S.M. Petition/Transferred cases disposed of. G