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(For Dr. Anand, C.J. and himself) (Majority View) – 5. The Central Water
and Power Commission carried out a study of the hydroelectric potential of the Narmada
basin in the year 1955. After the investigations were carried out by the Central Water and
Power Commission, the Navagam site was finally decided upon in consultation with the
erstwhile Government of Bombay for the construction of the dam. The Central Water and
Power Commission forwarded its recommendations to the then Government of Bombay. At
that time the implementation was contemplated in two stages. In Stage I, full reservoir level
(“FRL”) was restricted to 160 ft with provision for wider foundations to enable raising of the
dam to FRL 300 ft in Stage II. A high-level canal was envisaged in Stage II. The erstwhile
Bombay Government suggested two modifications, first FRL of the dam be raised from 300
to 320 ft in Stage II and second the provision of a powerhouse in the riverbed and a
powerhouse at the head of the low-level canal be also made. This project was then reviewed
by a panel of consultants appointed by the Ministry of Irrigation and Power who in a report in
1960 suggested that the two stages of the Navagam Dam as proposed should be combined
into one and the dam be constructed to its final FRL 320 ft in one stage only. The consultants
also stated that there was scope for extending irrigation from the high-level canal towards the
Rann of Kutch.
- In November 1963 the Union Minister of Irrigation and Power held a meeting with the
Chief Ministers of Gujarat and Madhya Pradesh at Bhopal. As a result of the discussions and
exchange of views, an agreement (Bhopal Agreement) was arrived at. The salient features of
the said agreement were:
(a) That the Navagam Dam should be built to FRL 425 by the Government of
Gujarat and its entire benefits were to be enjoyed by the State of Gujarat.
(b) Punasa Dam (Madhya Pradesh) should be built to FRL 850. The costs and
power benefits of Punasa Power Project shall be shared in the ratio 1:2 between the
Governments of Gujarat and Madhya Pradesh. Out of the power available to Madhya
Pradesh half of the quantum was to be given to the State of Maharashtra for a period
of 25 years for which the State of Maharashtra was to provide a loan to the extent of
one-third the cost of Punasa Dam. The loan to be given by the State of Maharashtra
was to be returned within a period of 25 years.
(c) Bargi Project was to be implemented by the State of Madhya Pradesh. Bargi
Dam was to be built to FRL 1365 in Stage I and FRL 1390 in Stage II and the
Governments of Gujarat and Maharashtra were to give a total loan assistance of
Rs 10 crores for the same. - On 16-10-1969 the Government of India made another reference of certain issues
raised by the State of Rajasthan to the said Tribunal. - The State of Madhya Pradesh filed a Demurrer before the Tribunal stating that the
constitution of the Tribunal and reference to it were ultra vires of the Act. The Tribunal
framed 24 issues which included the issues relating to Gujarat having a right to construct a
high dam with FRL 530 feet and a canal with FSL 300 feet or thereabouts. Issues 1(a), 1(b),
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1(A), 2, 3 and 19 were tried as preliminary issues of law and by its decision dated 23-2-1972
the said issues were decided against the respondents herein. It was held that the notification of
the Central Government dated 16-10-1969 referring the matters raised by the State of
Rajasthan by its complaint was ultra vires of the Act but constitution of the Tribunal and
making a reference of the water dispute regarding inter-State River Narmada was not ultra
vires of the Act and the Tribunal had jurisdiction to decide the dispute referred to it at the
instance of the State of Gujarat. 17. Against the aforesaid judgment of the Tribunal on the
preliminary issues, the States of Madhya Pradesh and Rajasthan filed appeals by special leave
to this Court and obtained a stay of the proceedings before the Tribunal to a limited extent.
This Court directed that the proceedings before the Tribunal should be stayed but discovery,
inspection and other miscellaneous proceedings before the Tribunal may go on. The State of
Rajasthan was directed to participate in these interlocutory proceedings. - On 16-8-1978, the Tribunal declared its award under Section 5(2) read with Section
5(4) of the Inter-State Water Disputes Act, 1956. Thereafter, References Nos. 1, 2, 3, 4 and 5
of 1978 were filed by the Union of India and the States of Gujarat, Madhya Pradesh,
Maharashtra and Rajasthan respectively under Section 5(3) of the Inter-State Water Disputes
Act, 1956. These references were heard by the Tribunal, which on 7-12-1979 gave its final
order. The same was published in the Extraordinary Gazette by the Government of India on
12-12-1979. In arriving at its final decision, the issues regarding allocation, height of dam,
hydrology and other related issues came to be subjected to comprehensive and thorough
examination by the Tribunal. Extensive studies were done by the Irrigation Commission and
Drought Research Unit of India, Meteorological Department in matters of catchment area of
Narmada basin, major tributaries of Narmada basin, drainage area of Narmada basin, climate,
rainfall, variability of rainfall, arid and semi-arid zones and scarcity area of Gujarat. The
perusal of the report shows that the Tribunal also took into consideration various technical
literature before giving its award. - The Tribunal in its award directed for the constitution of an inter-State administrative
authority i.e. Narmada Control Authority for the purpose of securing compliance with and
implementation of the decision and directions of the Tribunal. The Tribunal also directed for
constitution of a Review Committee consisting of the Union Minister for Irrigation (now
substituted by Union Minister for Water Resources) as its Chairperson and the Chief
Ministers of Madhya Pradesh, Maharashtra, Gujarat and Rajasthan as its members. The
Review Committee might review the decisions of the Narmada Control Authority and the
Sardar Sarovar Construction Advisory Committee. The Sardar Sarovar Construction Advisory
Committee headed by the Secretary, Ministry of Water Resources as its Chairperson was
directed to be constituted for ensuring efficient, economical and early execution of the
project. - The Narmada Control Authority is a high-powered committee having the Secretary,
Ministry of Water Resources, Government of India as its Chairperson, Secretaries in the
Ministry of Power, Ministry of Environment and Forests, Ministry of Welfare, Chief
Secretaries of the four States concerned as members. In addition thereto, there are a number
of technical persons like Chief Engineers as the members.
61 - The Narmada Bachao Andolan, the petitioner herein, had been in the forefront of
agitation against the construction of the Sardar Sarovar Dam. Apparently because of this, the
Government of India, Ministry of Water Resources vide office memorandum dated 3-8-1993
constituted a Five- Member Group to be headed by Dr Jayant Patil, Member, Planning
Commission and Dr Vasant Gowariker, Mr Ramaswamy R. Iyer, Mr L.C. Jain and Dr V.C.
Kulandaiswamy as its members to continue discussions with the Narmada Bachao Andolan
on issues relating to the Sardar Sarovar Project. Three months’ time was given to this Group
to submit its report. - During this time, the construction of the dam continued and on 22-2-1994 the
Ministry of Water Resources conveyed its decision regarding closure of the construction
sluices. This decision was given effect to and on 23-2-1994 closure of ten construction sluices
was effected. - In April 1994 the petitioner filed the present writ petition inter alia praying that the
Union of India and other respondents should be restrained from proceeding with the
construction of the dam and they should be ordered to open the aforesaid sluices. It appears
that the Gujarat High Court had passed an order staying the publication of the report of the
Five-Member Group established by the Ministry of Water Resources. On 15-11-1994 this
Court called for the report of the Five-Member Group and the Government of India was also
directed to give its response to the said report. - By order dated 13-12-1994, this Court directed, that the report of the Five-Member
Group be made public and responses to the same were required to be filed by the States and
the report was to be considered by the Narmada Control Authority. This report was discussed
by the Narmada Control Authority on 2-1-1995 wherein disagreement was expressed by the
State of Madhya Pradesh on the issues of height and hydrology. Separate responses were filed
in this Court to the said Five-Member Group report by the Government of India and the
Governments of Gujarat and Madhya Pradesh.
Rival contentions - While strongly championing the cause of environment and of the tribals who are to be
ousted as a result of the submergence, it was submitted that the environmental clearance
which was granted in 1987 was without any or proper application of mind as complete studies
in that behalf were not available and till this is done the project should not be allowed to
proceed further. With regard to relief and rehabilitation a number of contentions were raised
with a view to persuade this Court that further submergence should not take place and the
height of the dam, if at all it is to be allowed to be constructed, should be considerably
reduced as it is not possible to have satisfactory relief and rehabilitation of the oustees as per
the Tribunal’s award as a result of which their fundamental rights under Article 21 would be
violated.
General issues relating to displacement of tribals and alleged violation of the rights under
Article 21 of the Constitution - The submission of Shri Shanti Bhushan, learned Senior Counsel for the petitioners
was that the forcible displacement of tribals and other marginal farmers from their land and
other sources of livelihood for a project which was not in the national or public interest was a
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violation of their fundamental rights under Article 21 of the Constitution of India read with
ILO Convention No. 107 to which India is a signatory. Elaborating this contention, it was
submitted that this Court had held in a large number of cases that international treaties and
covenants could be read into the domestic law of the country and could be used by the courts
to elucidate the interpretation of fundamental rights guaranteed by the Constitution. In this
connection, our attention was drawn to ILO Convention No. 107 which stipulated that tribal
populations shall not be removed from their lands without their free consent from their
habitual territories except in accordance with national laws and regulations for reasons
relating to national security or in the interest of national economic development. It was further
stated that the said Convention provided that in such cases where removal of this population
is necessary as an exceptional measure, they shall be provided with lands of quality at least
equal to that of lands previously occupied by them, suitable to provide for their present needs
and future development. Shri Shanti Bhushan further contended that while Sardar Sarovar
Project will displace and have an impact on thousands of tribal families, it had not been
proven that this displacement was required as an exceptional measure. He further submitted
that given the seriously flawed assumptions of the project and the serious problems with the
rehabilitation and environmental mitigation, it could not be said that the project was in the
best national interest. It was also submitted that the question arose whether the Sardar Sarovar
Project could be said to be in the national and public interest in view of its current best
estimates of cost, benefits and evaluation of alternatives and specially in view of the large
displacement of tribals and other marginal farmers involved in the project. Elaborating this
contention, it was contended that serious doubts had been raised about the benefits of the
project – the very rationale which was sought to justify the huge displacement and the massive
environmental impacts etc. It was contended on behalf of the petitioners that a project which
was sought to be justified on the grounds of providing a permanent solution to water problems
of the drought-prone areas of Gujarat would touch only the fringes of these areas, namely,
Saurashtra and Kutch and even this water, which was allocated on paper, would not really
accrue due to a host of reasons. - Refuting the aforesaid arguments, it has been submitted on behalf of the Union of
India and the State of Gujarat that the petitioners have given a highly exaggerated picture of
the submergence and other impacts of this project. It was also submitted that the petitioner’s
assertion that there was large-scale relocation and uprooting of tribals was not factually
correct. According to the respondents, the project would affect only 245 villages in Gujarat,
Maharashtra and Madhya Pradesh due to pondage and backwater effect corresponding to 1 in
100-year flood. The State-wise break-up of affected villages and the number of projectaffected families (PAFs) shows that only four villages would be fully affected (three in
Gujarat and one in Madhya Pradesh) and 241 would be partially affected (16 in Gujarat, 33 in
Maharashtra and 192 in Madhya Pradesh). The total project-affected families who would be
affected were 40,827.
Environmental issues - The four issues raised under this head by Shri Shanti Bhushan are as under:
I. Whether the execution of a large project, having diverse and far-reaching
environmental impact, without the proper study and understanding of its environmental
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impact and without proper planning of mitigative measures is a violation of fundamental
rights of the affected people guaranteed under Article 21 of the Constitution of India?
II. Whether the diverse environmental impacts of the Sardar Sarovar Project have
been properly studied and understood?
III. Whether any independent authority has examined the environmental costs and
mitigative measures to be undertaken in order to decide whether the environmental costs
are acceptable and mitigative measures practical?
IV. Whether the environmental conditions imposed by the Ministry of Environment
have been violated and if so, what is the legal effect of the violations? - According to Shri Shanti Bhushan, when the environmental clearance was given in
1987, proper study and analysis of the environmental impacts and mitigative measures which
were required to be taken, were not available and, therefore, this clearance was not valid. The
decision to construct the dam was stated to be a political one and was not a considered
decision after taking into account the environmental impacts of the project. The execution of
SSP without a comprehensive assessment and evaluation of its environmental impacts and a
decision regarding its acceptability was alleged to be a violation of the rights of the affected
people under Article 21 of the Constitution of India. It was further submitted that no
independent authority has examined vehemently the environmental costs and mitigative
measures to be undertaken in order to decide whether the environmental costs are acceptable
and mitigative measures practical. With regard to the environmental clearance given in June
1987, the submission of Shri Shanti Bhushan was that this was the conditional clearance and
the conditions imposed by the Ministry of Environment and Forests had been violated. The
letter granting clearance, it was submitted, disclosed that even the basic minimum studies and
plans required for the environmental impact assessment had not been done. Furthermore it
was contended that in the year 1990, as the deadline for completion of the studies was not
met, the Ministry of Environment and Forests had declared that the clearance had lapsed. The
Secretary of the said Ministry had requested the Ministry of Water Resources to seek
extension of the clearance but ultimately no extension was sought or given and the studies and
action plans continued to lag to the extent that there was no comprehensive environmental
impact assessment of the project, proper mitigation plans were absent and the costs of the
environmental measures were neither fully assessed nor included in the project costs. In
support of his contentions, Shri Shanti Bhushan relied upon the report of a commission called
the Independent Review or the Morse Commission. The said Commission had been set up by
World Bank and it submitted its report in June 1992. In its report, the Commission had
adversely commented on practically all aspects of the project. - Shri Shanti Bhushan submitted that it had become necessary for some independent
judicial authority to review the entire project, examine the current-best estimates of all costs
(social, environmental, financial), benefits and alternatives in order to determine whether the
project is required in its present form in the national interest, or whether it needs to be
restructured/modified. - Shri Shanti Bhushan further submitted that environmental impacts of the projects
were going to be massive and full assessment of these impacts had not been done. According
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to him the latest available studies show that studies and action plans had not been completed
and even now they were lagging behind pari passu. It was also contended that mere listing of
the studies does not imply that everything is taken care of. Some of the studies were of poor
quality and based on improper data and no independent body had subjected these to critical
evaluation.
Re: environmental clearance - As considerable stress was laid by Shri Shanti Bhushan challenging the validity of the
environmental clearance granted in 1987 inter alia on the ground that it was not preceded by
adequate studies and it was not a considered opinion and there was non-application of mind
while clearing the project, we first propose to deal with the contention. - The events after the award and up to the environmental clearance granted by the
Government vide its letter dated 24-6-1987 would clearly show that some studies, though
incomplete, had been made with regard to different aspects of the environment. Learned
counsel for the respondents stated that in fact on the examination of the situation, the claim
made with regard to the satisfactory progress was not correct. In order to carry out the
directions in the award about the setting up of an authority, the Inter-State Water Disputes
Act, 1956 was amended and Section 6-A was inserted to set out how a statutory body could
be constituted under the Act. On 10-9-1980 in exercise of the powers conferred by Section 6-
A of the Act the Central Government framed a scheme, constituted Narmada Control
Authority to give effect to the decision of the award. - The clearance of June 1987 required the work to be done pari passu with the
construction of the dams and the filling of the reservoir. The area wherein the rainfall water is
collected and drained into the river or reservoir is called catchment area and the catchment
area treatment was essentially aimed at checking of soil erosion and minimising the silting in
the reservoir within the immediate vicinity of the reservoir in the catchment area. The
respondents had proceeded on the basis that the requirement in the letter of June 1987 that
catchment area treatment programme and rehabilitation plans be drawn up and completed
ahead of reservoir filling would imply that the work was to be done pari passu, as far as
catchment area treatment programme is concerned, with the filling of reservoir. Even though
the filling of the reservoir started in 1994, the impoundment award was much less than the
catchment area treatment which had been affected. The status of compliance with respect to
pari passu conditions indicated that in the year 1999, the reservoir level was 88.0 metres, the
impoundment area was 6881 hectares (19%) and the area where catchment treatment had
been carried out was 1,28,230 hectares being 71.56% of the total work required to be done.
The minutes of the Environmental Subgroup as on 28-9-1999 stated that catchment area
treatment works were nearing completion in the States of Gujarat and Maharashtra. Though,
there was some slippage in Madhya Pradesh, however, overall works by and large were on
schedule. This clearly showed that the monitoring of the catchment treatment plan was being
done by the Environmental Subgroup quite effectively. - While granting approval in 1987 to the submergence of forest land and/or diversion
thereof for SSP, the Ministry of Environment and Forests had laid down a condition that for
every hectare of forest land submerged or diverted for construction of the project, there
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should be compensatory afforestation on one hectare of non-forest land plus reforestation on
two hectares of degraded forest. According to the State of Gujarat, it had fully complied with
the condition by raising afforestation in 4650 hectares of non-forest areas and 9300 hectares
in degraded forest areas before 1995-96 against the impoundment area of 19%. The pari
passu achievement of afforestation in Gujarat was stated to be 99.62%. - If afforestation was taking place on wasteland or lesser quality land, it did not
necessarily follow, as was contended by the petitioners, that the forests would be of lesser
quality or quantity. - In A.P. Pollution Control Board case, this Court was dealing with the case where an
application was submitted by a company to the Pollution Control Board for permission to set
up an industry for the production of “BSS castor oil derivatives”. Though later on a letter of
intent had been received by the said Company, the Pollution Control Board did not give its
no-objection certificate to the location of the industry at the site proposed by it. The Pollution
Control Board, while rejecting the application for consent, inter alia, stated that the unit was a
polluting industry which fell under the red category of polluting industry and it would not be
desirable to locate such an industry in the catchment area of Himayat Sagar, a lake in Andhra
Pradesh. The appeal filed by the Company against the decision of the Pollution Control Board
was accepted by the appellate authority. A writ petition was filed in the nature of public
interest litigation and also by the Gram Panchayat challenging the order of the Appellate
Authority but the same was dismissed by the High Court. On the other hand, the writ petition
filed by the Company was allowed and the High Court directed the Pollution Control Board to
grant consent subject to such conditions as may be imposed by it. - It is this decision which was the subject-matter of challenge in this Court. After
referring to the different concepts in relation to environmental cases like the “precautionary
principle” and the “polluter-pays principle”, this Court relied upon the earlier decision of this
Court in Vellore Citizens’ Welfare Forum v. Union of India [AIR 1996 SC 2715] and
observed that there was a new concept which places the burden of proof on the developer or
industrialist who is proposing to alter the status quo and has become part of our
environmental law. It was noticed that inadequacies of science had led to the precautionary
principle and the said “precautionary principle” in its turn had led to the special principle of
burden of proof in environmental cases where burden as to the absence of injurious effect of
the actions proposed is placed on those who want to change the status quo. At p. 735, this
Court, while relying upon a report of the International Law Commission, observed as follows: - The precautionary principle suggests that where there is an identifiable risk of serious
or irreversible harm, including, for example, extinction of species, widespread toxic pollution
in major threats to essential ecological processes, it may be appropriate to place the burden of
proof on the person or entity proposing the activity that is potentially harmful to the
environment. - It appears to us that the “precautionary principle” and the corresponding burden of
proof on the person who wants to change the status quo will ordinarily apply in a case of
polluting or other project or industry where the extent of damage likely to be inflicted is not
known. When there is a state of uncertainty due to lack of data or material about the extent of
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damage or pollution likely to be caused then, in order to maintain the ecology balance, the
burden of proof that the said balance will be maintained must necessarily be on the industry or
the unit which is likely to cause pollution. On the other hand where the effect on ecology or
environment of setting up of an industry is known, what has to be seen is that if the
environment is likely to suffer, then what mitigative steps can be taken to offset the same.
Merely because there will be a change is no reason to presume that there will be an ecological
disaster. It is when the effect of the project is known that the principle of sustainable
development would come into play which will ensure that mitigative steps are and can be
taken to preserve the ecological balance. Sustainable development means what type or extent
of development can take place which can be sustained by nature/ecology with or without
mitigation. - In the present case we are not concerned with the polluting industry which is being
established. What is being constructed is a large dam. The dam is neither a nuclear
establishment nor a polluting industry. The construction of a dam undoubtedly would result in
the change of environment but it will not be correct to presume that the construction of a large
dam like the Sardar Sarovar will result in an ecological disaster. India has an experience of
over 40 years in the construction of dams. The experience does not show that construction of
a large dam is not cost-effective or leads to ecological or environmental degradation. On the
contrary there has been ecological upgradation with the construction of large dams. What is
the impact on environment with the construction of a dam is well known in India and,
therefore, the decision in A.P. Pollution Control Board case [AIR 1999 SC 812] will have no
application in the present case. - Reference was made by Shri Shanti Bhushan to the decision of the United States
District Court in the case of Sierra Club etc. v. Robert F. Froehlke [(1973) 350bF.
Supp.1280]. In that case work had begun on Wallisville Project which, inter alia, consisted of
construction of a low dam. It was the case of the plaintiff that the construction of the project
would destroy hundreds of thousands of trees and enormous grain, fish and other wildlife will
lose their habitat and perish. It was contended that the defendants were proceeding in
violation of law by not complying with the requirements of the National Environmental
Policy Act, 1969 (NEPA). The plaintiff, inter alia, sought an injunction for restraining the
undertaking of the project in violation of the said Act. The District Court held that
notwithstanding that a substantial amount of work had already been done in connection with
the project but due to the failure to satisfy full disclosure requirement of NEPA, injunction
would be issued to halt any further construction until requirements of NEPA had been
complied with, that even though there was no Act like NEPA in India at the time when
environmental clearance was granted in 1987, nevertheless by virtue of Stockholm
Convention and Article 21 of the Constitution the principles of Sierra Club decision should
be applied. - In India notification had been issued under Section 3 of the Environmental Act
regarding prior environmental clearance in the case of undertaking of projects and setting up
of industries including the inter-State river project. This notification has been made effective
from 1994. There was, at the time when the environmental clearance was granted in 1987, no
obligation to obtain any statutory clearance. The environmental clearance which was granted
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in 1987 was essentially administrative in nature, having regard and concern for the
environment in the region. Change in the environment does not per se violate any right under
Article 21 of the Constitution of India especially when ameliorative steps are taken not only
to preserve but to improve the ecology and environment and in case of displacement, prior
relief and rehabilitation measures take place pari passu with the construction of the dam.
Conclusion - Water is one element without which life cannot sustain. Therefore, it is to be
regarded as one of the primary duties of the Government to ensure availability of water to the
people. - There are only three sources of water. They are rainfall, groundwater or from the
river. A river itself gets water either by the melting of snow or from the rainfall while the
groundwater is again dependent on the rainfall or from the river. In most parts of India,
rainfall takes place during a period of about 3 to 4 months known as the monsoon season.
Even at the time when the monsoon is regarded as normal, the amount of rainfall varies from
region to region. For example, North-Eastern States of India receive much more rainfall than
some of the other States like Punjab, Haryana or Rajasthan. Dams are constructed not only to
provide water whenever required but they also help in flood control by storing extra water.
Excess of rainfall causes floods while deficiency thereof results in drought. Studies show that
75% of the monsoon water drains into the sea after flooding a large land area due to absence
of the storage capacity. According to a study conducted by the Central Water Commission in
1998, surface water resources were estimated at 1869 cu km and rechargeable groundwater
resources at 432 cu km. It is believed that only 690 cu km of surface water resources (out of
1869 cu km) can be utilised by storage. At present the storage capacity of all dams in India is
174 cu km which is incidentally less than the capacity of Kariba Dam in Zambia/Zimbabwe
(180.6 cu km) and only 12 cu km more than Aswan High Dam of Egypt. - While the reservoir of a dam stores water and is usually situated at a place where it
can receive a lot of rainfall, the canals take water from this reservoir to distant places where
water is a scarce commodity. It was, of course, contended on behalf of the petitioner that if
the practice of water harvesting is resorted to and some check dams are constructed, there
would really be no need for a high dam like Sardar Sarovar. The answer to this given by the
respondent is that water harvesting serves a useful purpose but it cannot ensure adequate
supply to meet all the requirements of the people. Water harvesting means to collect, preserve
and use the rain water. The problem of the area in question is that there is deficient rainfall
and small-scale water-harvesting projects may not be adequate. During the non-rainy days,
one of the essential ingredients of water harvesting is the storing of water. It will not be wrong
to say that the biggest dams to the smallest percolating tanks meant to tap the rain water are
nothing but water-harvesting structures to function by receiving water from the common
rainfall. - Dam serves a number of purposes. It stores water, generates electricity and releases
water throughout the year and at times of scarcity. Its storage capacity is meant to control
floods and the canal system which emanates therefrom is meant to convey and provide water
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for drinking, agriculture and industry. In addition thereto, it can also be a source of generating
hydropower. Dam has, therefore, necessarily to be regarded as an infrastructural project. - There are three stages with regard to the undertaking of an infrastructural project.
One is conception or planning, second is decision to undertake the project and the third is the
execution of the project. The conception and the decision to undertake a project is to be
regarded as a policy decision. While there is always a need for such projects not being unduly
delayed, it is at the same time expected that a thorough possible study will be undertaken
before a decision is taken to start a project. Once such a considered decision is taken, the
proper execution of the same should be undertaken expeditiously. It is for the Government to
decide how to do its job. When it has put a system in place for the execution of a project and
such a system cannot be said to be arbitrary, then the only role which a court may have to play
is to see that the system works in the manner it was envisaged. - A project may be executed departmentally or by an outside agency. The choice has
to be of the Government. When it undertakes the execution itself, with or without the help of
another organisation, it will be expected to undertake the exercise according to some
procedure or set manner. NCA was constituted to give effect to the award, various subgroups
have been established under NCA and to look after the grievances of the resettled oustees,
each State has set up a grievance redressal machinery. Over and above NCA is the Review
Committee. There is no reason now to assume that these authorities will not function
properly. In our opinion the Court should have no role to play. - It is now well settled that the courts, in the exercise of their jurisdiction, will not
transgress into the field of policy decision. Whether to have an infrastructural project or not
and what is the type of project to be undertaken and how it has to be executed, are part of
policy-making process and the courts are ill-equipped to adjudicate on a policy decision so
undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law
is violated and people’s fundamental rights are not transgressed upon except to the extent
permissible under the Constitution. Even then any challenge to such a policy decision must be
before the execution of the project is undertaken. Any delay in the execution of the project
means overrun in costs and the decision to undertake a project, if challenged after its
execution has commenced, should be thrown out at the very threshold on the ground of laches
if the petitioner had the knowledge of such a decision and could have approached the court at
that time. Just because a petition is termed as a PIL does not mean that ordinary principles
applicable to litigation will not apply. Laches is one of them. - Public interest litigation (PIL) was an innovation essentially to safeguard and protect
the human rights of those people who were unable to protect themselves. With the passage of
time PIL jurisdiction has been ballooning so as to encompass within its ambit subjects such as
probity in public life, granting of largess in the form of licences, protecting environment and
the like. But the balloon should not be inflated so much that it bursts. Public interest litigation
should not be allowed to degenerate to becoming publicity interest litigation or private
inquisitiveness litigation. - While exercising jurisdiction in PIL cases the court has not forsaken its duty and role
as a court of law dispensing justice in accordance with law. It is only where there has been a
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failure on the part of any authority in acting according to law or in non-action or acting in
violation of the law that the court has stepped in. No directions are issued which are in
conflict with any legal provisions. Directions have, in appropriate cases, been given where the
law is silent and inaction would result in violation of the fundamental rights or other legal
provisions. - While protecting the rights of the people from being violated in any manner, utmost
care has to be taken that the court does not transgress its jurisdiction. There is, in our
constitutional framework a fairly clear demarcation of powers. The court has come down
heavily whenever the executive has sought to impinge upon the court’s jurisdiction. - At the same time, in exercise of its enormous power the court should not be called
upon to or undertake governmental duties or functions. The courts cannot run the Government
nor can the administration indulge in abuse or non-use of power and get away with it. The
essence of judicial review is a constitutional fundamental. The role of the higher judiciary
under the Constitution casts on it a great obligation as the sentinel to defend the values of the
Constitution and the 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. 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 due deliberation the court should 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 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 available to it for providing water to the waterscarce 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 mala fide. A hard decision need not necessarily be a bad decision.
70 - Furthermore, environmental concern has not only to be of the area which is going to
be submerged but also its surrounding area. The impact on environment should be seen in
relation to the project as a whole. While an area of land will 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 water to
Rajasthan will also help in checking the advancement of the Thar Desert. Human habitation
will increase there which, in turn, 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 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 the Narmada, the hardships of the oustees from Madhya Pradesh 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. - Since long the people of India have been deriving the benefits of the river valley
projects. At the time of independence, foodgrain was being imported into India but with the
passage of time and the construction of more dams, the position has been reversed. The largescale river valley projects per se all over the country have made India more than selfsufficient in food. Famines which used to occur have now become a thing of the past.
Considering 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 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 shortage of water has been
there since time immemorial. - In the case of projects of national importance where the 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 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 then unless and until it can be proved or shown that there is a
71
blatant illegality in the undertaking of the project or in its execution, the court 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
inaccessible 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 the larger good. A natural river is not only
meant for the people close by but it should be for the benefit of those who can make use of it,
being away from it or nearby. 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 takeover for dam or any other developmental activity, the projectimplementing authorities have to implement R&R programmes. The R&R plans are required
to be specially drafted and implemented to mitigate problems whatsoever relating to all,
whether rich or poor, landowner or encroacher, farmer or tenant, employee or employer, tribal
or non-tribal. A properly drafted R&R plan would improve the living standards of displaced
persons after displacement. For example residents of villages around Bhakra Nangal Dam,
Nagarjuna Sagar Dam, Tehri, Bhilai Steel Plant, Bokaro and Bala 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
undeveloped 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 lifestyle. Should 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
of the oustees will be much better than what they had in their tribal hamlets. - The 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 deforestation due to other reasons like cutting of trees
for fuel, it is true that large dams cause 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
wasteland into agricultural land and make the area greener. Large dams can also become
instruments in improving the environment, as has been the case in western Rajasthan, which
transformed into a green area because of Indira Gandhi Canal which draws water from Bhakra
Nangal Dam. This project not only allows the farmers to grow crops in deserts but also checks
the spread of Thar Desert in the adjoining areas of Punjab and Haryana. - The environmental and ecological consideration must, of course, be given due
consideration but with proper channelisation of developmental activities ecology and
environment can be enhanced. For example, Periyar Dam Reservoir has become an elephant
sanctuary with thick green forests all around while at the same time it wiped out famines that
72
used to haunt the district of Madurai in Tamil Nadu before its construction. Similarly
Krishnaraja Sagar Dam which has turned Mandya District which was once covered with
shrub forests with wild beasts into a prosperous one with green paddy and sugarcane fields all
around. - So far a number of such river valley projects have been undertaken in all parts of
India. The petitioner has not been able to point out a single instance where the construction of
a dam has, on the whole, had an adverse environmental impact. On the contrary the
environment has improved. That being so, there is 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 will
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 award of the Tribunal is binding on the States concerned. The said award also
envisages the relief and rehabilitation measures which are to be undertaken. If for any reason,
any of the State Governments involved lag behind in providing adequate relief and
rehabilitation then the proper course, for a court to take, would be to direct the award’s
implementation and not to stop the execution of the project. 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 shortfall in carrying
out the R&R measures, a time-bound direction can and should be given in order to ensure the
implementation of the award. Putting the project on hold is no solution. It only encourages the
recalcitrant State to flout and not implement the award with impunity. This certainly cannot
be permitted. Nor is it desirable in the national interest that where fundamental right to life of
the people who continue to suffer due 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. - The clamour for the early completion of the project and for the water to flow in the
canal is not only by Gujarat but is also raised by Rajasthan. - As per clause 3 of the final decision of the Tribunal published in the Gazette
notification of India dated 12-12-1979 the State of Rajasthan has been allocated 0.5 MAF of
Narmada water in national interest from Sardar Sarovar Dam. This was allocated to the State
of Rajasthan to utilise the same for irrigation and drinking purposes in the arid and droughtprone areas of Jalore and Barmer Districts of Rajasthan situated on the international border
with Pakistan, which have no other available source of water.
73 - Water is the basic need for the survival of human beings and is part of the right to
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 UNO in 1977 to
which India is a signatory, 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. - 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 a 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 half a century of freedom, water is not available to all citizens even for
their basic drinking necessity, violating the human rights resolution of UNO 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. - The availability of drinking water will benefit about 1.91 lakh 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† would get is its share
of hydel power from the project. The lowering of the height from 455 ft to 436 ft will take
away this benefit even though 9399 hectares of its 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
systems 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 1980. 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 World Bank
resulting in the restriction of sanction of funds for thermal-power projects. On the other hand,
the hydel power’s contribution to the greenhouse effect is negligible and it can be termed
ecology-friendly. Not only this but the cost of generation of electricity in hydel projects is
significantly less. The award of the Tribunal has taken all these factors into consideration
while determining the height of the dam at 455 ft. Giving the option of generating eco-
74
friendly electricity and substituting it by thermal 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 effect 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 proposed 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 posing 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 is 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 the project at the earliest, and (ii) ensuring compliance with the
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 Subgroup has cleared the construction up to 90
metres, the same can be undertaken immediately. Further raising of the height will be
only pari passu with the implementation of the relief and rehabilitation measures and on
the clearance by the Relief and Rehabilitation Subgroup. The Relief and Rehabilitation
Subgroup will give clearance for further construction after consulting the three Grievance
Redressal Authorities.
(3) The Environment Subgroup under the Secretary, Ministry of Environment and
Forests, Government of India will consider and give, at each stage of the construction of
the dam, environment clearance before further construction beyond 90 metres can be
undertaken.
(4) The permission to raise the dam height beyond 90 metres will be given by the
Narmada Control Authority, from time to time, after it obtains the above-mentioned
clearances from the Relief and Rehabilitation Subgroup and the Environment Subgroup.
(5) The reports of the Grievance Redressal Authorities, and of Madhya Pradesh in
particular, show that there is a considerable slackness in the work of identification of
75
land, acquisition of 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 NCA or the Review Committee or the Grievance
Redressal Authorities.
(6) Even though there has been substantial compliance with the conditions imposed
under the environment clearance, NCA and the Environment Subgroup will continue to
monitor and ensure that all steps are taken not only to protect but to restore and improve
the environment.
(7) 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 abide by the terms of the action
plan so prepared by NCA 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 NCA with regard to the acquisition of land for the
purpose of relief and rehabilitation to the extent and within the period specified by NCA.
(8) The Review Committee shall meet whenever required to do so in the event of
there being any unresolved dispute on an issue which is before 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 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 Grievance 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, 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.
This and connected petitions are disposed of in the aforesaid terms.
BHARUCHA, J. (dissenting) – 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. - 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 consideration thereof is called for. I do
not accept the submission on behalf of the petitioner that those ousted by reason of the canals
76
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. - Having said this, I turn to the aspect of the environmental clearance of the project.
The Planning Commission accorded provisional sanction to the project subject to 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 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 the 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 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 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 environment; but in all cases there was great need to consider
the environmental aspects along with the 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
77
projects, was an eye-opener. These included effects on health, plant genetic resources, aquatic
resources, waterlogging 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 on 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 data for impact assessment was not readily available, this
being relatively a new discipline, and it had to be generated through such field surveys as:
(P)re-impoundment census of flora and fauna, particularly the rare and
endangered species, in submergence areas;
census of animal population and available grazing areas;
land-use pattern in the area with details of extent and type of forest;
pre-impoundment survey of fish habitat and nutrient levels;
groundwater level, its quality, and existing water-use pattern;
mineral resources, including injurious minerals, in the impoundment; and
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 part and parcel of all river valley projects would there be hope to
protect and preserve our natural environment and fulfil 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 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 the environmental clearance
to the project was left to the Prime Minister. - The fact that the environmental clearance was given by the Prime Minister and not
by the Ministry of Environment and Forests, as it would ordinarily have been done, makes no
difference at all. 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 assessment
showed that the project could proceed; and (c) the environmental safeguard measures, and
their cost, had been worked out. - 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 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
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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. - The Union of India has issued a notification on 27-1-1994 called the “Environmental
Impact Assessment Notification, 1994” (and amended it on 4-5-1994). Its terms are not
applicable to the present proceedings, but its provisions are helpful insofar 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 hydroelectric 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 Committee of
Experts mentioned above shall be constituted by IAA or such other body under the Central
Government authorised by IAA in this regard.
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 filed the process of relief and rehabilitation, such as it
was, was going on. The writ petitioners were not guilty of any laches 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. - 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,
(1) The Environmental Impact Agency of the Ministry of Environment and Forests of
the Union of India shall forthwith appoint a Committee of Experts in the fields mentioned
in Schedule III of the Notification dated 27-1-1994, called the Environmental Impact
Assessment Notification, 1994.
79
(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.
(3) Upon such data, the Committee of Experts shall assess the environmental impact
of the project and decide if the environmental clearance to the project can be given and, if
it can, what environmental safeguard measures must be adopted, and their cost.
(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 Committee of
Experts as aforestated, further construction work on the dam shall cease.
(6) The Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh
and Maharashtra shall ensure that those ousted by reason of the project are given relief
and rehabilitation in due measure.
(7) 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 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 metres from its present 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 metres is already in the possession of the respective States.
(8) This process shall be repeated for every successive proposed 5 metre increase in
the dam height.
(9) 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 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.
