TaxTMI 
TaxTMI 
2003 (9) TMI 772
X X X X Extracts X X X X
X X X X Extracts X X X X
....missions on both sides have been addressed at length. Before adverting to the contentions of safety, environmental clearance and rehabilitation, it is necessary to draw a demarcating line between the realm of policy and the permissible areas for judicial interference in the context of present case. For this, a brief factual survey is warranted. This is also necessary to appreciate the broader issues advanced before us. Investigation for the purpose of construction of a dam at Tehri for hydel power generation was commenced as early as in 1961. In the year 1972, the Planning Commission envisaged a cost of Rs. 197.92 crores and in 1976, administrative clearance to the Project was given by the Government of U.P. In March 1980, a direction was issued by the then Prime Minister for an in- depth review of the whole project. Consequently, an Expert Group was constituted by the Ministry of Science and Technology. The Prime Minister's note on the file reads as follows: "There are several proposals which were agreed to earlier but would need to be looked into again. Amongst them are Silent Valley, the dam in Tehri Garhwal and the dam in Lalpur, Gujarat. It seems that larger areas of ver....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d that completion of status, formulation of action plans and their implementation will be scheduled in such a manner that their execution is pari-passu with the construction, failing which the engineering works would be brought to a halt and this condition will be enforced among others under the provisions of the Environment Protection Act, 1986. The petitioners raised the question before us that when a decision had been taken in 1990 to abandon the project as to how clearance could be given on July 19, 1990? Again they pointed out that on 21.10.1994 serious consequences of the implementation lagging behind was taken note of but the project was allowed to continue. From the narration of various events set out earlier, it is clear that even by August 1986 an expenditure of Rs. 206 crores had been incurred for the construction of the dam. It is after the THDC Action Plans for consideration and assessment by MoEF have been submitted. These were considered on two occasions: firstly, in February 1990 and again on July 19, 1990 and it is thereafter the conditional clearance was given. It is contended that the environmental clearance which was granted on July 19, 1990 is without proper ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n. However, a note of caution was struck that the Courts have a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights as guaranteed under the Constitution are not transgressed upon except to the extent permissible under the Constitution. When a law has been enacted in relation to the protection of environment and such law is being given effect to and there is no challenge to such law, the duty of the Courts would be to see that the Government and other respondents act in accordance with law and there is no other obligation for the Court to examine further in the matter. We respectfully agree with the view expressed in the Sardar Sarovar project's case and apply the same to the facts arising in this, case. Further, it was noticed in the aforesaid decision that in cases where a project is taken up of the present nature, the Court will certainly bear in mind that environmental concern should be examined not only with reference to the submerged areas but also its surrounding areas. The impact has to be examined on the project as a whole and at the same time it should also be noticed that the construction of a dam would result in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rived at a conclusion that such tests are neither practical nor necessary in the present case. The respondents added that the studies related to site specific assessment of seismicity, testing of fill materials for determining dynamic properties and detailed dynamic analysis, were carried out independently by two agencies; that they are the Department of Earthquake Engineering, University of Roorkee, and Hydro Project Institute (HPI), Moscow; that the result of their studies indicated that earth and rockfill type dams as chosen for Tehri are the safest man-made structures in earthquake prone zones due to their large inertia, high damping and high flexibility; that the dam fill material is being compacted to concrete like density, which provides high strength while retaining the flexibility; that relatively flat slopes have been adopted for up-stream and down stream of the dam, which are flatter than the slopes provided in some recent high dams built/ planned in regions of similar high seismicity; that, therefore, the Tehri Dam is a fail-safe structure and the design has been found safe against the worst earthquake scenario of the area, even when very conservative and severe seismi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ientific and technical reports and other information relating to safety of the Tehri Dam and make its recommendations to the Government for consideration. In the selection of the experts Shri Sandra Bahuguna, who has been spearheading the movement against the construction of the Tehri Dam, was also associated and he recommended the inclusion of two engineers apart from the three seismologist. Thus the names of all the five Experts were suggested by Shri Bahuguna. The Group of Five Experts, after a detailed discussion on the various issues related to the seismic safety of the Tehri Dam, concluded that a comprehensive appraisal of the seismic safety of the dam required completion of the two key exercises by employing recent advances in conceptual and computational capabilities and they are, (i) quantitative estimation of seismic hazard at all the Tehri Dam site, and (ii) evaluation of the performance of the Tehri Dam as currently designed, if it was exposed to the estimated seismic hazard at the site. Accordingly, the Group of Experts got conducted the necessary exercises at their own decided parameters and methods. The Group also considered the International Commission on Large Da....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... particularly examined with reference to the fact that site of the project is being within the earthquake prone zone and this Court, after specific examination of the record observed that the project was considered by the Environmental Appraisal Committee of MoEF, Committee of Secretaries, High Level Committee comprising experts of scientific and specialised organisations and also by a renowned expert of international repute and, therefore, the Government considered the question of safety of the project from various details more than once and on being satisfied with the reports of the experts gave clearance to the project. In those circumstances, this Court thought fit not to interfere with the same. This Court dealt with the safety concerns and held that : "...In our opinion the Court can only investigate and adjudicate the question as to whether the government was conscious to the inherent danger as pointed out by the petitioners and applied its mind to the safety of the dam. We have already given facts in detail, which show that the government has considered the question on several occasions in the light of the opinions expressed by the experts. The government was satisfied wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sideration of material or is thoroughly arbitrary, then the Court will get in the way. Here the only point to consider is whether the decision-making agency took a well-informed decision or not. If the answer is 'yes', then there is no need to interfere. The consideration in such cases is in the process of decision and not in its merits. In this context, reliance is sought to be placed on the decision of this Court in A.P. Pollution Control Board v. Prof. M. V. Nayudu (Retd.) & Ors., [1999] 2 SCC 718. In that decision, this Court viewed that in scientific matters of complex nature resulting in uncertainty, reference has to be made to a specialised technical/expert body and not merely decide the matter on well known principles of administrative law of court not re- examining the matter if all relevant considerations have been taken note of. In the present case when once a decision had been given by this Court on safety aspects on an earlier occasion and thereafter the matter was again examined by the Government through different agencies and had taken a decision as to the necessity of further test by way of abundant caution should be relevant or not, we do not think, we can....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion of a dam undoubtedly would result in a 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 will have no application in the present case." [at pp. 727-728] Aspects Related to Conditional Clearance Before adverting to other issues, certain aspects pertaining to the preservation of ecology and development have to be noticed. In Vellore Citizens Welfare Forum v. Union of India, [1996] 5 SCC 647, and in M C Mehta v. Union of India, [2002] 4 SCC 356, it was observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of' sustainable development....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ainable development' cannot be singled out. Therefore, the concept of 'sustainable development' is to be treated an integral part of 'life' under Article 21. The weighty concepts like inter-generational equity State of Himachal Pradesh v. Ganesh Wood Products, [1995] 6 SCC 363, public trust doctrine M C Mehta v. Kamal Nath, [1997] 1 SCC 388 and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development. To ensure sustainable development is one of the goals of Environmental Protection Act, 1986 (for short 'the Act') and this is quiet necessary to guarantee 'right to life' under Article 21. If the Act is not armed with the powers to ensure sustainable development, it will become a barren shell. In other words, sustainable development is one of the means to achieve the object and purpose of the Act as well as the protection of 'life' under Article 21. Acknowledgment of this principle will breath new life into our environmental jurisprudence and constitutional resolve. Sustainable development could be achieved only by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the recommendations of the Remote Sensing Applications Centre, UP, identify the critically degraded areas conforming to the "very high" and "high" erodability classification and prepare action plans by 31.12.90 for the treatment of these areas in consultation with the Government of Uttar Pradesh. (b) The action plans prepared will ensure that the catchment area treatment is completed before 31.12.1995 on the basis of detailed annual action plans. (c) The THDC will put at the disposal of the Government of Uttar Pradesh all the requisite resources annually to implement the action plans. Obligation of the Government of U.P. The Government of U.P. will cooperate in the preparation of comprehensive action plans for catchment area treatment by 31.12.1990 and to implement these action plans by 31.12.1995 with the resources provided by THDC. 3.2. Rehabilitation The THDC will, through a reputed institution, undertake a socio-economic study of the measures needed to ensure that the standard of living of the oustees is not affected due to the project. The study will be completed by 30.6.1991. The THDC will implement such recommendations as may be made by the Ministry of Environment and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... India wherein it is stated as under :- "...after a careful examination of the information and data available, the Committee has come to the unanimous conclusion that the Tehri Dam Project, as proposed, should not be taken up as it does not merit environmental clearance." It was also mentioned in another letter dated 19.7.1990 that "conditional clearance to the project was given by the Ministry of Environment and Forests. It was specifically provided that 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 engineering work would be brought to a halt. This condition will be enforced among others under the provisions of the Environment (Protection) Act, 1986. " On 12.4.1991 another letter was sent again noticing the failure of Tehri Hydel Development Corporation (THDC) to comply with the conditional environment clearance and pointed out total dissatisfaction on the compliance contained in the conditional clearance. It was stated that THDC should submit comprehensive environmental plans as a component of the overall environment management plans and that the plan should be effe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of India, on demand for further examination of certain rehabilitation and environmental issues relating to the Tehri Project, appointed a Committee headed by Prof. C H Hanumantha Rao. This Committee basically looked into the Rehabilitation Policy, its implementation and the implementation of various conditions for environmental clearance. Later, Hanumantha Rao Committee submitted it Report (hereinafter, HRC Report) in October 1997. Government of India accepted certain vital suggestions in the HRC Report. The petitioners allege that even the HRC Report, as accepted by the Government, was not complied with. They argued, based on the clearance certificate that the conditions have to be carried out pari passu with the engineering works. And prayed that the impoundment shall not be allowed till its compliance. The respondents deny this contention and submit that the environmental plans connected with the project are to be implemented pari-passu with the implementation of engineering works and submit that various actions have already been initiated in this regard. On the question of Catchment Area Treatment, it is contended that the Remote Sensing Application Centre, U.P. made a report....
X X X X Extracts X X X X
X X X X Extracts X X X X
....F while according environmental clearance to the Project had laid down certain conditions in their letter dated July 19, 1990. These conditions had, inter alia, enumerated certain studies which were to be carried out and based on their findings, action plans had to be drawn up for execution pari-passu with the construction of the project. It is also pointed out that all the required studies had been completed and their reports submitted to the MoEF and these studies indicated that no environmental damage would be caused by the construction of the project which cannot be remedied by adoption of appropriate measures and for this purpose, action plans wherever called for have been and are being formulated for environmental upgradation. It is further pointed out that implementation of the project and the action being taken in regard to environmental concerns at the cost of the project would lead to improvement in the existing environment/ ecology of this region. HRC was constituted to examine the implementation of various conditions of environmental clearance except that relating to safety aspects and design of the Tehri Dam and suggest additional or improved environmental safeguards, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the Union Government entrusts the responsibility of treatment of degraded areas of 'high' and 'very high' erodability to the THDC. At the same time the State Government has to formulate separate plans for the treatment of 'medium' and 'low' categories of erosion. On principle the Union accepts to treat the entire degraded catchment of all categories. The treatment of entire catchment of high and very high erodability classification has to be completed part passu with the construction of the project. It is submitted on behalf of the Respondents that an area of 37589 ha.-- has been treated till December 2001 and soil conservation measures are being implemented as part of treatment program for upgrading the environment of the entire region. The treatment of the remaining area i.e.; 3670.60 ha, is proposed to be completed by September 2003. On the question of Catchment Area Treatment, it is stated that treating degraded areas in the Bhagirathi catchment started even as early as in 1970. The area coverage under CAT since the inception of the project was 22000 hectares which does not include the areas covered under CAT prior to inception of the project.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to MoEF for treatment of an additional catchment area of 13500 hectares in addition to area earlier treated, i.e., a total area of [22746+13500] equivalent to 36246 hectares. MoEF, however, directed in July 1998 that 52204 hectares of high and very high erosion classification, in the entire catchment, was to be treated at the cost of Tehri Project. This requirement was incorporated by the Government in its decisions on the HRC recommendations. As decided by the Government, the project is now doing CAT in the entire degraded catchment in area of high and very high erosion class after excluding the areas already treated. An area of 37591.4 hectares has already been treated till December 2001. The soil conservation measures are being implemented as part of the CAT Programme for upgrading the environment of the region. The remaining area is proposed to be treated by 2002-2003. The CAT Programme is presently being implemented by the Government of Uttaranchal. Command Area Development : Command Area Development primarily aims to avert the problems of water logging and emergence of salinity. This is very important in maintaining the environmental balance. Union government fixes the re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sheries, Bhimtal. A Botanical Garden in an area of 14.28 hectares is also under implementation by the Uttaranchal State Forest Department near the reservoir and about 50% of its work is completed. It is also submitted that the site development work is completed and induced artificial breeding work will be completed by March 2004. Water Quality Maintenance : At the threshold itself HRC observed that it is not in a position to go into the correctness of the scientific conclusions of various bodies on the maintenance of water quality. Nevertheless they expressed certain opinion regarding the general maintenance of water quality. Central Government decides to follow the advice of Central Water Commission pertaining to the effect of water quality due to impoundment. They also submitted that the THDC is asked to formulate action plan to set-up water quality monitoring stations and to study the impact on quality of water downstream, aspects of mineral contamination etc. and to take appropriate steps. As regards the water quality monitoring, a report was submitted by the University of Roorkee and its report established that water quality of reservoir shall not be harmful for aquatic lif....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and mandated to get the plan approved by the Ministry of Health, Government of India. It also recommended to its quick implementation. The Government accepted this reference in the HRC Report. Apart from this acceptance, the petitioners allege that no works have been carried out. Right to health is a fundamental right under Article 21. Protection of this is inextricably linked with the clean environment. Clean and healthy environment itself is a fundamental right. This position was reiterated by this Court in M C Metha v. Union of India [2001] 3 SCC 756. Therefore the impact of the Project on Human Health cannot be given a go by. It has to be seriously scrutinized. All the above-discussed aspects aimed at maintaining the ecological balance and protecting human rights are integral elements of sustainable development. Rupture to the Himalayan environment, if any, due to the dam construction could only be compensated by strictly complying with these conditions attached to the clearance. These aspects are vital for life and sustainable development of the area. If these aspects are not complied with, the human life and whole Himalayan environment will be the casualty. Only its strict....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Government in every district under the chairmanship of district magistrate for flood fighting and related activities and the Steering group will implement the disaster management plan in case of any eventuality from the dam. The Government of Uttaranchal has also constituted a Steering group under the Chairmanship of the Principal Secretary (Irrigation and Energy), to meet any emergency situation due to the dam. But effectiveness of all these exercises is in the proper carrying out of management activities. Rehabilitation : The construction of Tehri and Koteshwar dams will result in the formation of two lakes having a spread of 42 sq. kms and 2.65 sq. kms respectively at full reservoir levels. The Tehri dam will submerge Tehri town and 22 villages. Another 74 villages will be partially affected. A major potion will get affected in the first phase with the construction of the Cofferdam and the remaining by final impoundment. In addition 2 villages fully and 14 villages partially will be affected by the Koteshwar dam. By the construction of New Tehri Town, project works and colony construction will affect another 13 villages. In total, Tehri power project will affect 37 villages f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f India and the Government of U.P. in the ratio of 60:40 and it was also decided that the Government of U.P. shall take over the direct responsibility for the entire rehabilitation task to be handled directly by its officers under the overall supervision and control of the Commissioner, Garhwal Division for which the State Government shall issue appropriate orders accordingly. Recommendations of the HRC, as accepted by the Government, have been produced before us. It is contended on behalf of the Government that though developmental programme are intended to benefit the citizens of the country but when displacement is on large scale it is the moral duty of the State to ensure that those who are being displaced are properly looked after. This Court in Narmada Bachao Andolan 's case (supra) noticed that displacement of people living on the proposed project sites and the areas to be submerged is an important issue and a properly drafted relief and rehabilitation plan would improve the living standards of displaced persons after displacement. When clearances are given, conditions regarding preservation, conservation and rehabilitation are imposed and those conditions will have to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e families and such discrimination would be violative of their fundamental rights under the Constitution and it is contended that all major married sons should be given 2 hectares of land as a minimum and all the other benefits due to them as a displaced family under the package and they can be given the option of taking cash, equivalent to the value of 2 hectares of land in lieu of the land, if they so desire. This argument also cannot be accepted because as stated earlier on account of scarcity of land it may not be feasible to provide land to every family and even such families as have been treated for purposes of giving larger benefit major sons and unmarried daughters are treated as a separate family and not for any other purposes. Similarly other contention that the unmarried sons and daughters should be treated as a half a family unit and should be given half hectare of land or cash in lieu thereof, cannot be accepted. 4. The contention now put forth is that the lands have not been acquired as yet for the purpose of rehabilitation and the affected population is not rehabilitated as yet and until they are relocated together no further progress of the work should be allowed a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....accepted by the Government. It is contended on behalf of the petitioners that HRC's recommendations should be accepted by the Government but the Government has formulated another scheme instead of what is recommended by HRC and have suggested payment of ex-gratia amount in the same manner as is given in respect of the affected families and, therefore, no exception can be taken to the decision of the Government. The villages were identified by HRC as fully affected where 75% or more families are fully affected. HRC recommended that in the partially affected villages [where less than 75% families are fully affected], the fully affected families will have the option of resettling else where with rehabilitation provisions or remain in the unaffected part of the village. The families that remain there will be allotted land on pattas from the left over surplus land. The Government accepted the recommendations as to the categorisation of the fully and partially affected families and also stated that they would be entitled to rehabilitation benefits as admissible in the existing policy and all additional family members of those families would also be entitled to receive ex-gratia paym....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d has been identified and is being provided and acquired in Hardwar and Dehradun Districts. Approval of 275.20 hectares of land at Pashulok and 1083 hectares of land at Pathari Block, on lease basis, has been accorded by the Government for resettlement of the remaining fully affected rural families. In addition, proposal for acquisition of about 900 acres of land in District Hardwar and Dehradun is being processed. The State Government proposes to complete rehabilitation by June 2003. The present status of the urban rehabilitation programme covers Tehri Town involving a total of 5291 families falling within the cut-off date of 6th June, 1985. The rehabilitation package available for them is as follows : (i) "Under Urban resettlement programme, affected families are being rehabilitated at the New Tehri Town [NTT] or at Rishikesh and Dehradun, as per their option. Apart from compensation for their existing/shops and other structures at the Old Tehru Town, land/house owner oustees are provided with plots at a nominal cost for building their houses. The tenants at the old Tehri Town are being given built-up flats, on payment on subsidised terms. (ii) For the urban shop-keepers, shop....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dless persons + increase families since last survey) : ___________________________________________________________________________ __________ BALANCE FAMILIES OF TEHRI DAM FOR RESETTLEMENT : 2543. Note : (i) Above details are based on survey conducted in the year 2001. (ii) *3810 families are partially affected families, which are not to be shifted." 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 : "The Committee during its visit inspected the resettlement colonies at Bhaniawala, Raiwala and Pathri Block The Committee found 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. Piovisions for Irrigation and Drinking water are available. Efforts have been made to provide the facilities of Hospitals and Schools." There have been several further improvements in the rehabilitation package for the Project affected families. House ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aranchal 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. 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 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: 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 -1948]." It is no doubt true that in regard to certain....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ith the progress of the construction works and it was also implied that the completion of project meant rise 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 monitored under the existing mechanism set up by MoEF and the project authorities will ensure that prior to closing of diversion tunnels T1/T2 for impoundment 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 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 would start. This categorical statement made by the responde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment, 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 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 cases 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." [See : Indian Council For Enviro-Legal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the new State of 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 of Tehri 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 100 villages including the town Tehri as many as 90,000 families will be relocated as the result of the dam project. The Government of India and the State of 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. 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 surroundi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er 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 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 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 Hydel Development Corporation (respondent herein). The Corporation took over the construction of Dam in July 1988. The Corporation reformulated 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion was directed to submit comprehensive Environmental Plan for effective implementation failing which remedial or prohibitive action under the Act of 1986 was proposed. On 5.1.1991 the petitioner gave a notice under Section 19B 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 7.1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned 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. 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 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. 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 pos....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ra & 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 reservoir and increase in related diseases (8) seismicity (9) loss of non forest land (10) water-logging around reservoir (11) growth of weeds. Down stream impacts The down stream environment impacts of the large dams are : (1) 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. These adverse effects have long term 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. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y 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. " It is, therefore, necessary that when a multimillion big dam project is undertaken to generate electricity and for providing water for irrigation and dirnking, 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 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 compensate....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n proportion to the engineering work already taken. It is submitted that Corporation is not guilty of non-fulfillment of the conditions and no prohibitive action is called for. So far as the safety aspects of the dam are concerned, reliance is placed on the technical opinion of the experts, 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 three-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 uniform throughout the 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. Attempt has also been made by filing item-wise comments that various r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....estation. 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. 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 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 pari passu with the engineering works. This high claim is with the admission that the time Schedule in the condition of clearance....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vour of the project. The foreign expert Professor James D. Brune was a seismologist who did not favour the project due to safety aspect involved. 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., [1992] (supp) 1 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 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 (DBA) 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le' 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. 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 Environmental Rules 1986, the Tehri Dam Project was granted conditional clearance. A notification dated 27th January, 1994 has been issued under the Act and the rules on Environmental Impact Assessment of Development Project. 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 19.7.1990 before the issuance of the notification on 27th January, 1994 on the Environmental Impact Assessment of Development Project. Nonetheless, the directions and guidelines contained in the sai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 pan 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 wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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. 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 either alternative land of equal quality but not exceeding three acres in area and if that is not possible, then alternative employment where he would 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 alternative employment which is not temporary 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 exception, pay to the head of the family at the latter place of residence compensation equivalent to minimum wage every fortnight durin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 high and dry. 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. The ....