TaxTMI 
TaxTMI 
2000 (10) TMI 977
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....me 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. 4. 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, 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 ha....
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....valley projects, was an eye opener. These included effects on health plant genetic resources, aquatic resources, water-logging and salinity of irrigated soils, deforestation and soil conservation. During the planning and feasibility assessment stages, several factors had to be taken into account, including short and long term impact on population and human settlements in the in undated 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 date for impact assessment was not readily available, this being relatively a new discipline, and it had to be generated through such filed surveys as: "- Pre-impoundment census of flora & fauna, particularly the rare & endangered species, in submergence areas; - Census of animal population and available grazing areas; - Land-use pattern in the area with details of extent & type of forest; - Pre-impoundment survey of fish habitat and nutrients levels; - Gro....
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....in regard to the clearance. Under the sub-heading, "Should the projects be taken up at all?", the Note stated that the abandonment of the projects would mean the abandonment of the generation of 2450 MW of power and the possibilities of economic development which that quantum of power would bring, as also increased agricultural production resulting from the creation of an irrigation potential of 2.041 million hectares. No effective alternatives to the two projects were available. Reference to the adverse environmental impact of the projects carried the implicit assumption that if the projects were not sanctioned the status-quo would remain and there would be no deterioration of the environment. Such an assumption was not warranted. Despite the submergence of land and displacement of people and livestock, there was no case for the abandonment of the projects. What needed to be done was to take appropriate and adequate counter measures to off-set the environmental impact of the projects. The Note then gave a broad picture of the likely environmental impact of the two projects. In respect of the flora and fauna, it said, "Quantified data not yet available". In respect of the possibili....
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....years. The wildlife survey undertaken by the Zoological Survey of India was also likely to take two years. The Indian Institute of Wildlife Management, Dehradun was to consider and assess the impact on wildlife of the destruction of their habitant, and to prepare a project report for their re-location. After all these reports became available, a master plan had to be prepared. Field surveys for the identification of the critically eroding areas was necessary and would take three years. The results from pilot studies would be available only after three years. Then, under the sub-heading, "Options in regard to the Clearance of the Projects", the Note stated: 'There are two options: (i) As a number of studies, censuses, field surveys, mapping of areas, etc., are likely to take between 2 and 3 years, one possibility is that all these should be completed; detailed operational plans for catchment treatment, compensatory afforestation, rehabilitation and resettlement of affected population, and remedial or re-location measures for planned species, wildlife, etc., formulated; the responsibility for their implementation clearly identified; and then the projects should ....
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.... It should be entirely possible to give a conditional clearance and ensure that the conditions are properly met through a process of clear assignment of responsibility and frequent monitoring.................Moreover, even assuming that the postponement of a decision by three years will improve the availability of detailed information and the state of preparedness on environmental matters, there can be no greater assurance at that stage than there is now regarding the whole-hearted and effective implementation of the remedial and ameliorative measures. We would still have to depend on proper monitoring.......". In conclusion, the Note urged that clearance from the environmental angle and under the Forest Conservation Act, 1980 be given immediately, subject to conditions and stipulations relating to the various environmental and related aspects outlined in the Note. (Emphasis supplied) 7. Another Note was prepared by the Ministry of Water Resources and forwarded to the Additional Secretary to the Prime Minister on 20th November, 1986. Insofar as catchment area treatment was concerned, it concluded that it was certain that the catchment area treatment programme could not be rea....
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....ns for catchment treatment, compensatory afforestation, rehabilitation and re-settlement of affected population and remedial or re-location measures for plant species, wildlife, etc. formulated; the responsibility for their implementation clearly identified; and then the projects should be given a clearance from the environmental and forest angles. This would mean a postponement of the clearance of projects by about three years." The other option was that the project should be given the necessary clearance with conditions and stipulations in regard to the actions to be taken on the various environmental aspects with appropriate monetary arrangements. The Note recommended the latter option. phasis supplied) 8. On 19th December, 1986 the Ministry of Environment and Forests sent to the Secretary to the Prime Minister a Note on the environment aspects of the Narmada Sagar and the Sardar Sarovar Projects. The Note stated that it covered the major environmental issues which included the rehabilitation of the affected population, catchment area treatment, Command area development, compensatory afforestation and the loss of flora and fauna. It explained the then status of each of the....
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....on and had proposed to undertake afforestation on double the extent for degraded forest land, which proposal was fairly detailed and seemed satisfactory. In the matter of the loss of flora and fauna the Note stated "that the forest area, specially affected by the Narmada Sagar Project, represents, areas harbouring rich heritage of genetic resources as well as wildlife. The preliminary study carried out by the Environmental Planning and Coordination Organisation, Bhopal as well as the observations made by the World Bank clearly underlined the need for preparing a master plan showing not just the present status but also the likely scenarios after the project was implemented. The prime concern was to ascertain the loss of biological diversity and whether the wildlife would be able to sustain itself after the destruction of its habitat. The following studies were considered absolutely essential both to determine the loss of flora and the adequacy or otherwise of the left over habitat to sustain the wildlife: - A wildlife census of the area (ZSI will take at least 2-3 years to complete the survey); - Preparation of a Master Plan showing all protected areas i.e. Nationa....
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....ully available. (5) A large amount of money has already been invested on SSP which is critically linked--on technical and operational aspects--to NSP. However, it may not be too late even now to modify some of the parameters of NSP and SSP to minimise environmental damage at the same time ensuring optimal utilisation of water resources. ........................................................................... The choice is difficult but a choice has to be made." (Emphasis supplied) 9. A Note was prepared on 15th January, 1987 in the Prime Minister's Office. It noted that the main issues on environmental concerns were the rehabilitation of the affected population, compensatory afforestation, treatment of the catchment area and Command area development, pertaining, particularly, to drainage, water logging and salinity. The Department of Environment and Forests had raised the point that the rehabilitation plan was not ready, land had not been surveyed, areas of land use capability and water availability had not been identified and the land being suggested for rehabilitation, prima facie, appeared to be infertile. Detailed meetings with the ....
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.... State authorities, the following details were sought from the project authorities: (i) Rehabilitation Master Plan. (ii) Phased Catchment Area Treatment Scheme. (iii) Compensatory Afforestation Plan. (iv) Command Area Development. (v) Survey of Flora and Fauna. (vi) Carrying Capacity of surrounding area. (vii) Seismicity; and (viii) Health Aspects. 3. Field Surveys are yet to be completed. The first set of information has been made available and complete details have been assured to be furnished by 1989. 4. The NCA has been expanded and its terms of reference has been amplified to ensure that environmental safeguard measures are planned and implemented in depth and in its pace of implementation pari passu with the progress of work on the project. 5. After taking into account all relevant facts of Narmada Sagar Project, Madhya Pradesh and the Sardar Sarovar Project, Gujarat are hereby accorded environmental clearance subject to the following conditions: (i) The Narmada Control Authority (NCA) will ensure that environmental safeguard measures are planned and implemented pari pa....
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....te data for assessment of the environmental impact of the Project was not available when the environmental clearance thereof was granted. In the words of one of the Notes, "While some plans have been made, studies undertaken and action initiated, it will be clear from the preceding paragraphs that much still remains to be done. Indeed it is the view of the Ministry of Environment, Forests and Wildlife that what has been done so far whether by way of action or by way of studies does not amount to much and that many matters are yet in the early and preliminary stages". The Notes make clear that the studies, censuses, mapping of areas and field surveys for the collection of data for assessment of the environmental impact of the Project were likely to take a further 2 to 3 years. An environmental clearance based on next to no data in regard to the environmental impact of the Project was contrary to the terms of the then policy of the Union of India in regard to environmental clearances and, therefore, no clearance at all. 14. The environmental clearance of 24th June, 1987 stated that details had been sought from the Project authorities in respect of the rehabilitation master plan, p....
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....head of impoundment in the reservoir. This, plainly, was intended to off set, so far as was possible in the circumstances, the adverse effect of the impoundment of water in the reservoir upon the catchment and those who were required to be settled elsewhere. In fact, the impoundment began much before. 18. Learned counsel for the Union of India submitted that most of the necessary surveys and studies had been carried out in regard to the environmental impact of the project before the environmental clearance was given, and he invited our attention to what had been done. The short answer to the submission on behalf of the Union of India is that the two concerned Ministries of the Union of India thought otherwise at the relevant time. To quote the Note of one Ministry again, "While some plans have been made, studies undertaken and action initiated, it would be clear from the preceding paragraph that much still remains to be done. Indeed it is the view of the Ministry of Environment, Forests and Wildlife that what has been done so far whether by way of action or by way of studies does not amount to much and that many matters are yet in the early and preliminary stages". 19. The fa....
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....tted by applicants for new projects, including hydro-electric 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-Ill 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 the IAA or such other body under the Central Government authorised by the IAA in this regard.................". Schedule III of the notification reads thus: "COMPOSITION OF THE EXPERT COMMITTEES FOR ENVIRONMENTAL IMPACT ASSESSMENT 1. The Committees will consist of experts in the following disciplines: (i) Eco-System Management (ii) Air/Water Pollution Control (iii) Water Resource Management (iv) Flora/Fauna Conservation and Management (v) Land Use Planning (vi) Social Sciences/Rehabilitation (vii) Project Appraisal (viii) Ecology (ix) Environmental Health (x) Subject Area Specialist....
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....suitable lands upon which the oustees can be rehabilitated. When the Project obtains environmental clearance, assuming that it does, each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra must certify, after inspection, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present level have already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who will be ousted by the increase in the height of the dam by another 5 meters is already in the possession of the respective States; and this process must be repeated for every successive proposed 5 meter increase in the dam height. 25. Only by ensuring that relief and rehabilitation is so supervised by the Grievance Redressal Authorities can this Court be assured that the oustees will get their due. 26. It is necessary to provide for the contingency that, for one or other reason, the work on the Project, now or at any time in the future, does not proceed and the Project is not completed. Should that happen, all oustees who have been reh....
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....tation 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 meters 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 meters is already in the possession of the respective States. (8) This process shall be repeated for every successive proposed 5 meter 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. ....
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....mission 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 & 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 & Power Commission forwarded its recommendations to the then Government of Bombay. At that time the implementation was contemplated in two stages. In Stage-I, the Full Reservoir Level (hereinafter referred to as '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 the FRL of the dam be raised from 300 to 320 ft. in Stage-II and second the provision of a power house in the river bed and a power house 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 & Power who in a report in 1960 suggested that the two stages of the Navagam dam as proposed should be combined into one and t....
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....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. 40. In pursuance of the Bhopal Agreement, the Government of Gujarat prepared a brief project report envisaging the Navagam Dam FRL 425 ft. and submitted the same to the Central Water and Power Commission under Gujarat Government's letter dated 14th February, 1964. Madhya Pradesh, however, did not ratify the Bhopal Agreement. In order to overcome the stalemate following the rejection of the Bhopal Agreement by Madhya Pradesh, a High Level Committee of eminent engineers headed by Dr. A.N. Khosla, the then Governor of Orissa, was constituted on 5th September, 1964 by the Government of India. The terms of reference of this Committee were decided by the Government of India in consultation with the States of Madhya Pradesh, M....
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....be kept to the un-avoidable minimum. 42. The Master Plan recommended by the Khosla Committee envisaged 12 major projects to be taken up in Madhya Pradesh and one, viz., Navagam in Gujarat. As far as Navagam Dam was concerned, the Committee recommended as follows:- 1. The terminal dam should be located at Navagam. 2. The optimum FRL of the Navagam worked out to RL 500 ft. 3. The FSL (Full Supply Level) of the Navagam canal at off-take should be RL 300 ft. 4. The installed capacity at the river bed power station and canal power station should be 1000 mw and 240 mw respectively with one stand-by unit in each power station (in other words the total installed capacity at Navagam would be 1400 mw). The benefits of the Navagam Dam as assessed by the Khosla Committee were as follows:- (1) Irrigation of 15.80 lakh hectares (39.4 lakh acres) in Gujarat and 0.4 lakh hectares (1.00 lakh acres) in Rajasthan. In addition, the Narmada waters when fed into the existing Mahi Canal system would release Mahi water to be diverted on higher contours enabling additional irrigation of 1.6 to 2.0 lakh hectares (4 to 5 lakh acres) approximately in Gujarat ....
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....possible for Gujarat to re-claim the desert area in the Ranns of Kutch. According to the State of Gujarat, the principal matters in disputes were as under: (i) The right of the State of Gujarat to control and use the waters of the Narmada river on well-accepted principles applicable to the use of waters of inter-State rivers; (ii) the right of the State of Gujarat to object to the arrangement between the State of Madhya Pradesh and the State of Maharashtra for the development of Jalsindhi dam; (iii) the right of the State of Gujarat to raise the Navagam dam to an optimum height commensurate with the efficient use of Narmada waters including its control for providing requisite cushion for flood control; and (iv) the consequential right of submergence of area in the States of Madhya Pradesh and Maharashtra and areas in the Gujarat State. 45. Acting under Section 4 of the Inter-State Water Disputes Act, 1956, the Government of India constituted a Tribunal headed by Hon'ble Mr. Justice V. Ramaswamy, a retired Judge of this Court. On the same day, the Government made a reference of the water dispute to the Tribunal. The Reference being in the f....
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....dgment 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. 49. It appears that on 31.7.1972, the Chief Ministers of Madhya Pradesh, Maharashtra, Gujarat and Rajasthan had entered into an agreement to compromise the matters in dispute with the assistance of Prime Minister of India. This led to a formal agreement dated 12th July, 1974 being arrived at between the Chief Ministers of Madhya Pradesh, Maharashtra & Rajasthan and the Advisor to the Governor of Gujarat on a number of issues which the Tribunal otherwise would have had to go into. The main features of the Agreement, as far as this case is concerned, were that the quantity of water in Narmada available for 75% of the year was to be assessed at 28 million acre feet and the Tribunal in determining the disputes refer....
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....the year, it would be necessary to provide all the live storage above MDDL for which an FRL +453 ft. with MDDL + 362 ft. would obtain gross capacity of 7.44 MAF. Therefore, the Tribunal was of the view that FRL of the Sardar Sarovar Dam should be +455 ft. providing gross storage of 7.70 MAF. It directed the State of Gujarat to took up and complete the construction of the dam. B) GEOLOGICAL AND SEISMOLOGICAL ASPECTS OF THE DAM SITE: The Tribunal accepted the recommendations of the Standing Committee under Central Water & Power Commission that there should be seismic co-efficient of 0.10 g for the dam. C) RELIEF AND REHABILITATION: The final Award contained directions regarding submergence, land acquisition and rehabilitation of displaced persons. The award defined the meaning of the land, oustee and family. The Gujarat Government was to pay to Madhya Pradesh and Maharashtra all costs including compensation, charges, expenses incurred by them for and in respect of compulsory acquisition of land. Further, the Tribunal had provided for rehabilitation of oustees and civic amenities to be provided to the oustees. The award also provided that if the Sta....
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....sources as its Chairperson was directed to be constituted for ensuring efficient, economical and early execution of the project. 53. 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 concerned four States as Members. In addition thereto, there are number of technical persons like Chief Engineers as the members. 54. Narmada Control Authority was empowered to constitute one or more subcommittees and assign to them such of the functions and delegate such of its powers as it thought fit. Accordingly, the Narmada Control Authority constituted the following discipline based sub-groups: (i) Resettlement and Rehabilitation subgroup under the Chairmanship of Secretary, Ministry of Welfare; (ii) Rehabilitation Committee under Secretary, Minister of Welfare to supervise the rehabilitation process by undertaking visits to R&R sites and submergence villages. (iii) Environment Sub-group under the Chairmanship of Secretary, Ministry of Environment and ....
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....% of which is drought-prone areas) in Gujarat and 73000 hectares in the arid areas of Banner and Jallore districts of Rajasthan. Drinking Water facilities to 8215 villages and 135 urban centers in Gujarat both within and outside command. These include 5825 villages and 100 urban centers of Saurashtra and Kachchh which are outside the command. In addition, 881 villages affected due to high contents of fluoride will get potable water. Power Generation: 1450 Megawatt. Annual Employment Potential: lac man-years during construction lac man-years in post construction. Protection against advancement of little Rann of Kutch and Rajasthan desert. Flood protection to riverine reaches measuring 30,000 lac, 210 villages including Bharuch city and 7.5 lac population. Benefits to: a) Dhumkhal Sloth Bear Sanctuary. b) Wild Ass Sanctuary in Little Rann of Kachchh c) Black Buck Sanctuary at Velavadar. d) Great Indian Bustard Sanctuary in Kachchh e) Nal Sarovar Bird Sanctuary. Development of fisheries: Deepening f all village tanks of command which will increase their capacit....
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....ls have been assured to be furnished in 1989. 4. The NCA has been examined and its terms of reference have been amplified to ensure that environmental safeguard measures are planned and implemented in depth and in its pace of implementation pari passu with the progress of work on the projects. 5. After taking into account all relevant facts the Narmada Sagar Project, Madhya Pradesh and the Sardar Sarovar Project, Gujarat State are hereby accorded environmental clearance subject to the following conditions. i) The Narmada Control Authority (NCA)will ensure that environmental safeguard measures are planned and implemented pari passu with progress of work on project. ii) The detailed surveys/studies assured will be carried out as per the schedule proposed and details made available to the Department for assessment. iii) The Catchment Area treatment programme and the Rehabilitation plans be so drawn as to be completed ahead of reservoir filling. iv) The Department should be kept informed of progress on various works periodically. 6. Approval under Forest (Conservation) Act, 1980 for diversion of forest land will be obtained....
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....r, 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. 66. During this time, the construction of the dam continued and on 22nd February, 1994 the Ministry of Water Resources conveyed its decision regarding closure of the construction sluices. This decision was given effect to and on 23rd February, 1994 closure often construction sluices was effected. 67. 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 15th November, 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. 68. By order dated 13th December, 1994, thi....
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....ced stage of construction, with the central portion of the dam already raised to 80 m.; the canal constructed upto a length of 140 Kms.; and most of the equipment for various components of the project ordered and some of it already wholly or partly manufactured. An expenditure of over Rs. 3800 crores is said to have been already incurred on the project; significant social costs have also been incurred in terms of displacement and rehabilitation. The benefits for which these costs have been and are being incurred have not materialised yet in that situation, any one with a concern for keeping project costs under check and for ensuring the early commencement of benefits would generally like to accelerate rather than retard the completion of the project as planned. If any suggestion for major changes in the features of the project at this juncture is to be entertained at all, there will have to be the most compelling reasons for doing so. 71. It then addressed itself to the question whether there were any compelling reasons. The answer, they felt, depended upon the view they took on the displacement and rehabilitation problem. The two views which, it examined, were, firstly whether ....
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....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 re-structured/modified. It is further the case of the petitioners that no work should proceed till environment impact assessment has been fully done and its implications for the projects viability being assessed in a transparent and participatory manner. This can best be done, it is submitted, as a part of the comprehensive review of the project. 73. 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....
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....our Chief Ministers in 1974, namely, the Chief Ministers of Madhya Pradesh, Gujarat, Maharashtra and Rajasthan for the project to be undertaken. Then dispute arose with regard to the height of the dam which was settled with the award of the Tribunal being given in 1978. For a number of years, thereafter, final clearance was still not given. In the meantime some environmental studies were conducted. The final clearance was not given because of the environmental concern which is quite evident. Even though complete data with regard to the environment was not available, the Government did in 1987 finally give environmental clearance. It is thereafter that the construction of the dam was undertaken and hundreds of crores have been invested before the petitioner chose to file a writ petition in 1994 challenging the decision to construct the dam and the clearance as was given. In our opinion, the petitioner which had been agitating against the dam since 1986 is guilty of latches in not approaching the Court at an earlier point of time. 78. When such projects are undertaken and hundreds of crores of public money is spent, individual or organisations in the garb of PIL cannot be permitte....
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....effect that the height of the dam should be reduced in order to decrease the number of oustees. In this case, the petitioners also submit that with regard to hydrology, the adoption of the figure 27 MAF is not correct and the correct figure is 23 MAF and in view thereof the height of the dam need not be 455 feet. 82. The Tribunal in this Award has decided a number of issues which have been summarised hereinabove. The question which arises is as to whether it is open to the petitioners to directly or indirectly challenge the correctness of the said decision. Briefly stated the Tribunal had in no uncertain terms come to the conclusion that the height of the dam should be 455 ft. It had rejected the contention of the State of Madhya Pradesh for fixing the height at a lower level. At the same time in arriving at this figure, it had considered the relief and rehabilitation problems and had issued directions in respect thereof. Any issue which has been decided by the Tribunal would, in law, be binding on the respective states. That this is so has been recently decided by a Constitution Bench of this Court in The State of Karnataka v. State of Andhra Pradesh and Ors. 2000 (3) Scale 505....
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....d in the Official Gazette and on such publication that decision becomes final and binding on the parties. Once the Award is binding on the States, it will not be open to a third party like the petitioners to challenge the correctness thereof. In terms of the Award, the State of Gujarat has a right to construct a dam upto the height of 455 ft. and, at the same time, the oustees have a right to demand relief and re-settlement as directed in the Award. We, therefore, do not propose to deal with any contention which, in fact, seems to challenge the correctness of an issue decided by the Tribunal. GENERAL ISSUES RELATING TO DIS-PLACEMENT OF TRIBALS AND ALLEGED VIOLATION OF THE RIGHTS UNDER Article 21 OF THE CONSTITUTION: The submission of Sh. 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 violation of their fundamental rights under Article 21 of the Constitution of India read with ILO Convention 107 to which India is a signatory. Elaborating this contention, it was submitted that....
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....amely, Saurashtra and Kutch and even this water, which was allocated on paper, would not really accrue due to host of reasons. It was contended that inspite of concentrating on small scale decentralized measures which were undertaken on a large scale could address the water problem of these drought prone areas. Huge portions of the State resources were being diverted to the Sardar Sarovar Project and as a result the small projects were ignored and the water problem in these areas persists. It was submitted that the Sardar Sarovar Project could be restructured to minimise the displacement. 83. Refuting the aforesaid arguments, it has been submitted on behalf of the Union of India and the State of Gujarat that the petitioners have given a highly exaggerated picture of the submergence and other impacts of this project. It was also submitted that the petitioner's assertion that there was large-scale re-location and uprooting of tribals was not factually correct. According to the respondents, the project would affect only 245 villages in Gujarat, Maharashtra and Madhya Pradesh due to poundage and backwater effect corresponding to 1 in 100 year flood. The State-wise break up of af....
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....s sown and so there is no surplus economy. PAPs inhabiting these interior areas find generous rehabilitation and resettlement packages as a means to assimilate in the mainstream in the valley. 84. In 193 villages of Madhya Pradesh to be affected by the project, a very high proportion of the houses would be affected whereas the land submergence was only 14.1%. The reason for this is that the river bed is a deep gorge for about 116 km. upstream of the dam and as a result the reservoir will be long (214 km), narrow (average width of 1.77 km) and deep. The result of this is that as one goes further upstream, the houses on the river banks are largely affected while agricultural land which is at a distance from the river banks is spared. A majority of 33014 families of Madhya Pradesh (which would include 15018 major sons) would lose only their houses and not agricultural lands would be required to be resettled in Madhya Pradesh by constructing new houses in the new abadi. According to the Award, agricultural land was to be allotted only if the project affected families lost 25% or more of agricultural land and on this basis as per the Government of Madhya Pradesh, only 830 project aff....
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....fected by the submergence would have to move but the rehabilitation package was such that the living condition would be much better than what it was before there. Further more though 140 villages of Madhya Pradesh would be affected in the plains of Nomad, only 8.5% of the agricultural land of these villages shall come under submergence due to SSP and as such the said project shall have only a marginal impact on the agricultural productivity of the area. 86. While accepting the legal proposition that International Treaties and Covenants can be read into the domestic laws of the country the submission of the respondents was that Article 12 of the ILO Convention No. 107 stipulates that "the populations concerned shall not be removed without their free consent from their habitual territories except in accordance with national laws and regulations relating to national security, or in the interest of national economic development or of the health of the said populations". 87. The said Article clearly suggested that when the removal of the tribal population is necessary as an exceptional measure, they shall be provided with land of quality atleast equal to that of the land previo....
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....y NWDT and about 100 MW power developed 85% of the waters are estimated as flowing waste to sea. The project will provide safe and clean drinking water to 8215 villages and 135 towns in Gujarat and 131 villages in desert areas of Jalore district of Rajasthan, though against these only 241 villages are getting submerged partially and only 4 villages fully due to the project. 90. The cost and benefit of the project were examined by the World Bank in 1990 and the following passage speaks for itself: The argument in favour of the Sardar Sarovar Project is that the benefits are so large that they substantially outweigh the costs of the immediate human and environmental disruption. Without the dam, the long term costs for people would be much greater and lack of an income source for future generations would put increasing pressure on the environment. If the waters of the Narmada river continue to flow to the sea unused there appears to be no alternative to escalating human deprivation, particularly in the dry areas of Gujarat. The project has the potential to feed as many as 20 million people, provide domestic and industrial water for about 30 million, employ about 1 million,....
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....her 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 imitative measures to be undertaken in order to decide whether the environmental costs are acceptable and imitative 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? 93. It was submitted by Sh. Shanti Bhushan that a large project having diverse and far reaching environmental impacts in the concerned States would require a proper study and understanding of the environmental impacts. He contended that the study and planning with regard to environmental impacts must precede construction. According to Sh. Shanti Bhushan, when the environmental clearance was given in 1987, proper study and analysis of the environmental impacts and imitative measures, which were required to be taken, were not available and, therefore, this clearance was not valid. The decision to construct the dam was stated to be political one and was not a considered decision after taking ....
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....s. We think that the Sardar Sarovar Projects as they stand are flawed, that resettlement and rehabilitation of all those displaced by the projects is not possible under the prevailing circumstances, and that the environmental impacts of the projects have not been properly considered or adequately addressed. The history of environmental aspects of Sardar Sarovar is a history of non-compliance. There is no comprehensive impact statement. The nature and magnitude of environmental problems and solutions remain elusive. 94. Sh. Shanti Bhushan submitted that it had become necessary for some independent judicial authority to review the entire project, examine the current best estimates of all costs (social, environmental, financial), benefits and alternatives in order to determine whether the project is required in its present form in the national interest, or whether it needs to be restructured/modified. 95. Sh. Shanti Bhushan further submitted that environmental impacts of the projects were going to be massive and full assessment of these impacts had not been done. According to him the latest available studies show that studies and action plans had not been compl....
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....e v) Health hazard-water borne diseases, industrial pollution etc. vi) Submergence of important minerals vii) Submergence of monuments viii)Fish culture and aquatic life ix) Plant life-forests x) Life of migratory birds xi) National Park and Sanctuaries xii) Seism city due to filling of reservoir The Government of Gujarat accordingly submitted information from September, 1980 till March, 1983. The information was also submitted on physiological and economic studies for Narmada Command Area covering cropping pattern, health aspects, water requirement etc. A note of influence of Navagam dam on fish yield including impact on downstream fisheries was also submitted. 99. The techno-economic appraisal of the project was undertaken by the Central Water Commission which examined water availability, command area development, construction etc. The project was considered in the 22nd meeting of the Technical Advisory Committee on Irrigation, Flood Control and Multi-purpose projects held on 6.1.1983 and found it acceptable subject to environmental clearance. 100. At this point of time, the matter was handled by the....
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....mand area. A project report, therefore, should be prepared to cover these aspects. Since the catchment area for Narmada Sagar and Sardar Sarovar was very vast, it was decided that an Inter-Departmental Committee should be set up by the Ministry of Agriculture under the Chairmanship of Dr. ML. Dewan. This group could submit its report only in August, 1985 covering areas of catchment of Narmada and Sardar Sarovar and recommended that at least 25-30% of the area might require treatment for these projects. 104. The consideration of the project in the Ministry, therefore, got deferred for this report on catchment area treatment. During this time, Government of Madhya Pradesh entrusted the studies on flora for Narmada Valley Project to Botanical Survey of India and other related surveys were being carried out. Even though there was a request on 1 Oth June, 1985 from the Chief Minister of Gujarat to the Minister of State for Environment and Forests for delinking of catchment area treatment works on clearance of the project, but this request was not agreed. 105. By this time the approval of SSP was being considered by the Secretary, Ministry of Environment and Forests who invited oth....
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....ctions to be taken on the recommendations of the Inter-Departmental Committee headed by Dr. Dewan on soil conservation and afforestation works in the catchment area. 108. In March, 1986, a meeting was convened by the Ministry of Water Resources in order to discuss the issues of fisheries, flora/fauna, health, are haeology with the officers of the Botanical Survey of India, Zoological Survey of India, are haeological Survey of India and the officers of the various departments of the State and center to gear up the preparation of the environmental work plans. The next meeting was held on 11th April, 1986. The Secretary, Ministry of Environmental and Forests, who chaired the meeting of senior officials, representatives of States and other agencies, sought additional information to be made available by 30th April, 1986 before assessment and management decision. 109. In October, 1986, the Ministry of Water Resources prepared and forwarded to the Ministry of Environment and Forests, a note on environmental aspects of the two projects and noted the urgency of the decision. It also considered the importance of the project, should the project be taken at all, environmental aspects of ....
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....ity. It finally concluded that if the Government should decide to go ahead with the project it should be done with provision of environmental management authority with adequate powers and teeth to ensure that environment management plan is implemented pari passu with engineering and other works. It concluded that effective implementation of the engineering and environmental measures simultaneously will go a long way and that such a project could be implemented by harmonizing environmental conservation needs with the developmental effort. 112. The Ministry of Environment and Forests had not given environmental clearance of Narmada Sagar and Sardar Sarovar Dam despite all discussions which had taken place. The documents filed along with the affidavit of Shri P.K. Roy, Under Secretary, Prime Minister's Office dated 27th April, 2000 indicate that there was difference of opinion with regard to the grant of environmental clearance between the Ministry of Water Resources and the Ministry of Environment & Forests. This led to the matter being referred to the Prime Minister's Secretariat for clearance at the highest level. A note dated 20th November, 1986 prepared by the Ministry....
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....ote on the environmental aspects of both the projects, namely, Narmada Sagar and Sardar Sarovar Project. In this note, it was, inter alia, stated that there was absence and inadequacy on some important environmental aspects even though the Sardar Sarovar Project was in a fairly advance stage of preparedness. The note also recommended the establishment of the Narmada Management Authority with adequate powers and teeth to ensure that the Environmental Management Plan did not remain only on paper but was implemented; and implemented pari passu with engineering and other works. In the end, in the note, it was stated as follows: If, despite the meagre availability of data and the state of readiness on NSP, the Government should decide to go ahead with the project it is submitted that it should do so only on the basis of providing a Management Authority as outlined above with the hope that the public opposition, not just by vested interests but by credible professional environmentalists, can be overcome. Effective implementation of the engineering and environmental measurers simultaneously would go a long way to prove that even such a project can be implemented by harmonising en....
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.... Environment and Forests and it was agreed that the recommendation of the Minister of Environment and Forests of giving clearance on the condition that items (ii) and (iii) referred to hereinabove be accepted. The note also stated that in view of the technical report, reduction in the dam height did not appear to be feasible. This note of Mrs. Otima Bordia recommended that the Prime Minister's approval was sought on giving conditional clearance. On this note, Mrs. Serla Grewal, Secretary to the Prime Minister noted as follows: Proposal at para 17 may kindly be approved. This project has been pending clearance for the last 7 years and both the C.Ms, of Gujarat and Madhya Pradesh are keenly awaiting the clearance of the same. The agency, which is proposed to be set up to monitor the implementation of this project, will fully take care of the environmental degradation about which P.M. was concerned. The Ministry of Environment and Forests have recommended clearance of this project subject to conditions which will take care of P.M's apprehensions. I shall request Secretary, Water Resources, who will be Chairman of the Monitoring Agency, to see that no violation of any ....
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....rovar Project, when completed, will solve more of the pressing problems of environment than creating them. To this letter of Shri Vaghela, the Prime Minister sent a reply dated 8th April, 1987 stating as follows: I have seen your letter of 31st March regarding the Narmada Project. All aspects have to be carefully considered before decisions are taken on a project of this size. This is being done. The environment and ecological factors cannot be dis-regarded. We cannot also dismiss the needs of our tribal people. Safeguards are required to ensure that rehabilitation plans are effective. All these aspects are being examined and a decision will be taken soon. On 30th April, 1987, a press note was released by the Government of India, in which it was stated that in a meeting presided over by the Prime Minister, it was agreed by the Chief Ministers of Madhya Pradesh and Gujarat and representatives of the Maharashtra Government that a high level River Valley Authority would be set up for the control and development of the river basin. This press note also stated that the Narmada Sagar and the Sardar Sarovar Project on the river Narmada had been cleared. Soon,....
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....and Environment & Forests with regard to the grant of environmental clearance, the matter was referred to the Prime Minister. Thereafter, series of discussions took place in the Prime Minister's Secretariat and the concern of the Prime Minister with regard to the environment and desire to safeguard the interest of the tribals resulted in some time being taken. The Prime Minister gave environmental clearance on 13th April, 1987 and formal letter was issued thereafter on 24th June, 1987. 119. It is not possible, in view of the aforesaid state of affairs, for this Court to accept the contention of the petitioner that the environmental clearance of the project was given without application of mind. It is evident, and in fact this was the grievance made by Shri Vaghela, that the environmental clearance of the project was unduly delayed. The Government was aware of the fact that number of studies and data had to be collected relating to environment. Keeping this in mind, a conscious decision was taken to grant environmental clearance and in order to ensure that environmental management plans are implemented pari passu with engineering and other works, the Narmada Management Author....
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....n other words, formal environmental and forest clearances granted by the Ministry of Environment and Forests, Government of India are not lapsed and are very much alive and subsisting. 122. With regard to the lapsing of the clearance granted in 1987, it was contended by Mr. Harish Salve that a letter dated 25th May, 1992 was written by the Secretary, Ministry of Environment and Forests, Government of India to the Secretary, Ministry of Water Resources stating, inter alia, that the conditions of clearance of the project were not yet met and, therefore, a formal request for extension of environmental clearance, as directed by Review Committee of Narmada Control Authority, may be made and failing which, a formal notification may be issued revoking the earlier clearance. It is, however, an admitted position that no formal notification has ever been issued revoking and/or cancelling the aforesaid two clearances at any point of time by the Ministry of Environment and Forests, Government of India. The Secretary, Ministry of Environment and Forests has continued to hold and chair the meetings of Environment Sub-Group, Narmada Control Authority closely monitoring the execution of SSP for....
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....ent of India wrote a letter on 27th January, 1993 to the Minister of State for Environment and Forests stating that there had been no violation of environmental safeguard measurers. On 7th July, 1993, the Secretary, Ministry of Water Resources, Government of India wrote a letter to the Secretary, Ministry of Environment and Forests, Government of India, more particularly stating as under: Progress of all the environmental works is summarised in the sheet enclosed herewith. I share your concern for initial delay in some of the studies but now it seems that the work has started in full swing. However, there is a need to keep a close watch and I am advising the NCA for the same. By letter dated 17th September, 1993, the Minister of State for Environment and Forests, Government of India wrote to the Minister for Water Resources, Government of India appreciating the efforts made by the . concerned State Governments in making the environmental plans. The exchange of the aforesaid correspondence and the conduct of various meetings of the Environment Subgroup from time to time under the Chairmanship of the Secretary, Ministry of Environment and Forests, dispels the doubt of the....
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....ople by the State of Gujarat. Given the experience so far, and the fact that most of the impact of submergence on people will not occur until 1997, there is still time to develop meaningful R&R packages and programs in consultation with the affected peoples. Efforts are being intensified to achieve this. On environment, bank management agrees with the independent review on the need for a more effective central management in the Narmada Basin on environment impact studies and mitigation programs. Management also agrees on the need to accelerate work on estuary studies and health maters in Gujarat. However, management does not share the review's conclusions about the environmental severity of the study delays. Command area issues are being addressed, including issues of water logging and salinity. On water availability (hydrology), Bank Management disagrees with the finding that there is insufficient impoundment of water upstream of the Sardar Sarovar Dam site to make the irrigation system work as designed. The Government of India vide its letter dated 7th August, 1992 from the Secretary, Ministry of Environment and Forests did not accept the report and commente....
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....the studies carried out. The Narmada Control Authority and the Environmental Sub-group in particular have the advantage of having with them the studies which had been carried out and there is no reason to believe that they would not be able to handle any problem, if and when, it arises or to doubt the correctness of the studies made. 130. It was submitted by Sh. Shanti Bhushan that the catchment area treatment programme was not to be done pari passu but was required to be completed before the impoundment. This contention was based on the terms of the letter dated 24th June, 1987 wherein conditional environmental clearance was granted, inter alia, on the condition that "the catchment area treatment programme and rehabilitation plans be drawn so as to be completed ahead of reservoir filling". Admittedly, the impounding began in 1994 and the submission of Sh. Shanti Bhushan was that catchment area treatment programme had not been completed by them and, therefore, this very important condition had been grossly violated. Reference was also made to the Minutes of the Environmental Sub-group meetings to show that there had been slippage in catchment area treatment work. 131. The cle....
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....rest land submerged or diverted for construction of the project, there should be compensatory afforestation on one hectare of non-forest land plus reforestation on two hectare of degraded forest. According to the State of Gujarat, it had fully complied with the condition by raising afforestation in 4650 hectares of non-forest areas and 9300 hectares in degraded forest areas before 1995-96 against the impoundment area of 19%. The pari passu achievement of afforestation in Gujarat was stated to be 99.62%. 135. If afforestation was taking place on waste land or lesser quality land, it did not necessarily follow, as was contended by the petitioners, that the forests would be of lesser quality or quantity. 136. It was also contended on behalf of the petitioners that downstream impacts of the project would include not only destruction of downstream fisheries, one of the most important ones in Gujarat on which thousands of people are dependent but will also result in salt water ingress. The project, it was contended, will have grave impacts on the Narmada Estuary and unless the possible impacts were properly studied and made public and mitigation plans demonstrated with the requisit....
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....ion measurers are applied. Much of this work is already in progress under the auspices of the NPG, SSNNL and NCA. The recommendations in this report are intended to provide a synthesis of their work and suggestions as to whether it might be modified to enhance its usefulness. The said M/s. H.R. Wallingford in the findings of 1995 stated as under: It is thought unlikely that any significant negative environmental impacts will occur over the next 30 years as a result of the project. Some possible adverse effects have been identified the main one being the effect of flood attenuation on Hills migration. These needs to be monitored and more studies undertaken to better understand the conditions which trigger spawning. Beneficial impacts in this period include reduced flooding and more reliable dry season flows as well as an overall improvement of the health and well being of the people to the reliable domestic water supply, improved nutrition and enhanced economic activity. The above report clearly demonstrates that the construction of dam would result into more regulated and perennial flow into the river with an overall beneficial impact. It is also evident that until a....
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....ufficient value to merit relocation. So far as the State of Gujarat is concerned the Department of are haeology surveyed archeological sites in nineteen villages of submergence zone in Gujarat under the title of "Archaeological Survey of Nineteen Villages in Gujarat submerged by Sardar Sarovar Reservoir, 1989." In addition to baseline studies on are haeological aspects, work had been carried out on the anthropological heritage of Narmada Basin, including examination of evidence of ancient dwellings and cultural artifacts. The principal studies in this behalf are described below: Anthropological Survey of India: Narmada Salvage Plan: The Narmada Salvage Plan contains detailed background data on palaeoanthropological, human ecological and other aspects of the Narmada Valley. By May, 1992, surface scanning of 17 sample villages coming under the submergence had been carried out and 424 specimens including ancient tools etc. had been collected. Anthropological Survey of India. Peoples of India: This project entailed a complete survey of 33 tribes of India including those of Narmada Basin. The study covered all aspects of tribal culture in India and was published in ....
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....varieties of plants and animals. 143. It was also contended on behalf of petitioners that the whole project will have serious impacts on health, both around the submergence area and in the command. The preventive aspects had not been given attention. There was no linkage between the studies and work. 144. On behalf of State of Gujarat, it was contended that large number of studies had been carried out on the health profile of villagers including studies on water related diseases in SSP command area including the area downstream of the dam. The study of M.S. University in 1983 and other studies concluded that the most common diseases in the basin were Malaria, Scabies, Dysentery and Diarrhoea. Of these only a threat to Malaria needed to be of concern. The study concluded that the incidence of hygiene related diseases other than Malaria could be reduced by better water availability. The Gujarat Work Plan covered villages within 10 KMs radius of the reservoir including resettled population and made provision for the monitoring, surveillance and control of Malaria. The principal features of the Gujarat Work Plan included establishment of a hospital at Kevadia near the dam site, s....
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.... doubtful whether any more effective mechanism could have been devised or made to work within the framework of our existing political and administrative structures, particularly in the context of a federal system. Secretary (Environment & Forests) has, in fact, been given a special position in the NCA inasmuch as he can insist on matters being referred to the Review Committee and at the Review Committee the Minister of Environment and Forests forcefully plead the environmental cause; he can also make the environmental point of view heard at the highest level. If in spite of all these arrangements, the environmental point of view fails to be heard adequately, and if project construction tends to take an over-riding precedence, that is a reflection of the relative political importance of these two points of view in our system. This can be remedied only in the long term through persuasion and education, and not immediately through institutional arrangements which run counter to the system. (Emphasis added) Apart from the fact that we are not convinced that construction of the dam will result in there being an adverse ecological impact there is no reason to conclude that th....
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.... 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 page 735, this Court, while relying upon a report of the International Law Commission, observed as follows: The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution is major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. 150. 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 th....
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....ill lose their habitat and perish. It was contended that the defendants were proceeding in violation of law by not complying with the requirements of National Environmental Policy Act, 1969, [NEPA]. 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 the substantial amount of work had already been done in connection with the project but the failure to satisfy full disclosure requirement of NEPA injunction would be issued to halt any further construction until requirements of NEPA had been complied with, 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. 153. In India notification had been issued under Section 3 of the Environmental Act regarding prior environmental clearance in the case of undertaking of projects and setting up of industries including Inter-State River Project. This notification has been made effective from 1994. There was, at the time when the envir....
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....l the US Supreme Court held that the Endangered Species Act prohibited the authority for further impounding the river. The said decision has no application in the present case because there is no such act like the Endangered Species Act in India or a declaration similar to the one which was issued by the Secretary of the Interior under that Act. What is, however, more important is that it has not been shown that any endangered species exists in the area of impoundment. In Tennessee Valley Authority case it was an accepted position that the continued existence of snail darter which was an endangered species would be completely jeopardised. 157. Two other decisions were referred to by Sh. Shanti Bhushan - Arlington Coalition on Transportation v. John A. Volpe (1972) 458 F.2d 1323 and Environmental Defense Fund, Inc. v Corps of Engineers of United States Army (1971) 325 F. Supp.749. In both these decisions it was decided that the NEPA would be applicable even in case of a project which had commenced prior to the coming into force of the said Act but which had not been completed. In such cases there was a requirement to comply with the provisions of NEPA as already noticed earlier. ....
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....rn amenities like roads, hospitals and schools are far more a reflection of the neglect and disregard by the Government over the last fifty years than on anything else. Of the 193 villages stated to be affected by Sardar Savorar submergence 140 lie in the Nomad plains. The population of these villages are a mixture of caste and tribal and these villages have all the facilities like schools, post offices, bus service etc. 159. It was contended that whereas the project authorities talk only about the families affected by submergence, none of the other families affected by the project are considered as PAFs nor has any rehabilitation package been designed for them. These non-recognised categories for whom no rehabilitation package is given are stated to be those persons living in submergence area who are not farmers but are engaged in other occupation like petty traders, village shopkeepers who are to be affected by submergence; colony affected people whose lands were taken in 1960 to build the project colony, warehouses etc.; canal affected people who would be losing 25 per cent of their holdings because of the construction of the canals; drainage affected people whose lands will ....
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....rious problems are alleged to be non provision for fuel wood and grazing land with fodder. No provision for rehabilitation of people involved in non-agricultural occupation. According to the petitioner the number of affected people even by submergence have been underestimated. The policy regime governing them has many serious lacunae. The increase in the numbers is due to lack of proper surveys and planning and the provision of just and due entitlements to the PAFs. Since this process of providing just entitlements is still incomplete, and the policies need a thorough review, the numbers and entitlements are likely to go up further. Even the magnitude of the task of R&R cannot be assessed properly till the above are considered and proper policies introduced. 163. It is also contended that before embarking on the Sardar Sarovar Project it was necessary that the Master Plan for rehabilitation of the families to be affected is completed. According to the petitioner the Master Plan which was submitted in the Court cannot be regarded as an acceptable Master Plan inasmuch as it has no mention of people affected by Sardar Sarovar project other than those affected by submergence and it ....
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....ct and the number is likely to be more than 3113 PAFs estimated by the State of Maharashtra. Further-more adequate land of desired quality has not been made available for resettlement till 90 mtr. and even thereafter. Reference is made to the affidavit of the State of Maharashtra in which it is stated that it proposes to ask for the release of 1500 hectares of forest land for resettlement and the submission on behalf of the petitioner is that release of such land shall be in violation of Forest Conservation Act, 1980 and is not in public interest for forest cover will be further depleted. 167. With regard to the State of Madhya Pradesh it is submitted that as per the award the PAFs have a right to choose whether to go to Gujarat or to stay in the home State. The State of Madhya Pradesh is stated to have planned the whole re-settlement based on the assumption that overwhelming proportion of oustees entitled to land will go to Gujarat yet even for the limited number of oustees who are likely to stay in Madhya pradesh the submission is that no land is available. The petitioner also disputes the averment of the State of Madhya Pradesh that the oustees have been given a choice as to ....
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....xecuting the R&R be also monitoring it. 170. It is a case of the petitioners that there is a need for independent monitoring agency in the three States who should be asked to monitor the R&R of the oustees and see to the compliance with the NDWT award. No construction should be permitted to be undertaken without clearance from this authority. Lastly it is contended that large number of grievances are persisting even after twenty years and the pace of resettlement has been slow. The petitioner seems to have contended that the relief and rehabilitation can be manageable only if the height of the dam is significantly lessened which will reduce submersion and displacement of people. 171. In order to consider the challenge to the execution of the project with reference to Relief and Rehabilitation it is essential to see as to what is the extent and the nature of submergence. 172. The Sardar Sarovar Reservoir level at 455 ft. would affect 193 villages in Madhya Pradesh, 33 villages in Maharashtra and 19 villages in Gujarat. The submergence villages are situated on the banks of river Narmada having gentle to steep slopes of the Satpura hills. A village is considered affected even....
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....r resistance to relocation is from the richer, non-tribal families of Nomad who fear shortage of agricultural labour if the landless labourers from the areas accept re-settlement. 179. The displacement of the people due to major river valley projects has occurred in both developed and developing countries. In the past, there was no definite policy for rehabilitation of displaced persons associated with the river valley projects in India. There were certain project specific programmes for implementation on temporary basis. For the land acquired, compensation under the provisions of Land Acquisition Act, 1894 used to be given to the project affected families. This payment in cash did not result in satisfactory resettlement of the displaced families. Realising the difficulties of displaced persons, the requirement of relief and rehabilitation of PAFs in the case of Sardar Sarovr Project was considered by the Narmada Water Disputes Tribunal and the decision and final order of the Tribunal given in 1979 contains detailed directions in regard to acquisition of land and properties, provision for land, house plots and civic amenities for the re-settlement and rehabilitation of the affec....
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....in two years of the decision of the Tribunal, the number and general location of rehabilitation villages required to be established by Gujarat in its own territory. 183. It is with regard to this clause in the Award that, presumably, the aforesaid letter of 24th June, 1987 granting environmental clearance required the preparation of the new Master Plan. 184. In 1988 when the project was first cleared by the Planning Commission from investment angle, it was estimated that 12180 families would be affected in three States. Based on these numbers, the State Governments independently prepared their action plans and announced their R&R policy based on Tribunal's Award. On the basis of the said action plans the Narmada Control Authority submitted Rehabilitation Master Plan to the Ministry of Environment and Forests along with its letter dated 3/4.5.1989. Out of the total population, which is affected by the submergence, large number are tribals and hence attention was paid by the State Governments to liberalise their policies for protecting the socio-economic and cultural milieu and to extend the R&R benefits even to other categories of persons who were not covered by the Tribun....
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....rt and according to the State, it is fully ready and prepared to re-settle in Gujarat all the PAFs upto FRL 455 ft. 186. On 13th November, 1996, a meeting of the Review Committee of the Narmada Control Authority chaired by the Union Minister of Water Resources was held. This meeting was attended by the Chief Ministers of all the States including Rajasthan and representatives of Ministry of Environment and Forests, Ministry of Social Justice and Empowerment, Government of India. In the meeting it was unanimously decided that the reviews of the implementation of resettlement and rehabilitation measures will be undertaken for every five meter height of the dam jointly by the concerned R&R Subgroup and Environmental Sub-group so that work could progress pari passu with the implementation measurers. In its meeting held on 6th January, 1999, R&R Sub-Group of Narmada Control Authority observed that arrangements made by the States for R&R of the balance families pertaining to the dam height EL 90 meter were adequate and a meeting of the party States should be convened shortly to finalise the action plan. Pursuant thereto a special Inter-State Meeting was convened under the chairmanship ....
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.... Genuine representation of the traditional leader. 188. The Tribunal had already made provision of various civic amenities which were further liberalised by the State Governments during implementation. The existing development programmes were strengthened for ensuring sustainable development at the rehabilitation sites. These were Integrated Rural Development Programme (IRDP) for agriculture, business and village industries; Integrated Child Development Scheme (ICDS) for nutrition, health and education; Jawahar Rojgar Yojna (JRY); aids for improved seeds, fertilizers, irrigation, animal husbandry; Training Rural Youth for self-employment (TRYSEM); Employment Guarantee Scheme (EGS), Social Assistance; Industrial Training Institute (ITI); Tribal Development Programme (TDP), financial benefits to the backward classes, economically weaker sections, tribals and other backward classes (OBC), eye camps, subsidies to farmers (seed, tractorisation, fertilizers, diesel, etc.) agricultural prices support subsidy etc. 189. Other benefits which were extended for improving the quality of life of the resettled PAFs included fodder farm, mobile sale, shop of fodder, seeds cultivation ....
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....vailable, was more than required for the re-settlement of the balanced PAFs that it cleared the construction upto the dam height EL 90 meters. The action plan for the same had been approved and is under implementation by the States concerned. 192. The petitioners had contended that no proper surveys were carried out to determine the different categories of affected persons as the total number of affected persons had been shown at a much lower side and that many had been denied PAF status. From what is being stated hereinabove, it is clear that each State has drawn detailed action plan and it is after requisite study had been made that the number of PAFs have been identified. The number has substantially increased from what was estimated in the Tribunal's Award. The reason for the same, as already noticed, is the liberalisation of the R&R packages by the State Governments. Except for a bald assertion, there appears to be no material on which this Court can come to the conclusion that no proper surveys had been carried out for determining the number of PAFs who would be adversely affected by the construction of the dam. 193. Re-settlement and rehabilitation packages in the ....
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....ding the number of people likely to be so affected because all those who are entitled to be rehabilitated as per the Award will be provided with benefits of the package offered and chosen. 195. With regard to the colony affected people whose 1380 acres of land was acquired in six villages for the construction of a colony, most of the landholders had continued to stay in their original houses and about 381 persons were stated to have been provided permanent employment in the project works. At the time, the land was acquired in 1962-63, compensation was paid and in addition thereto, the Government of Gujarat devised a special package in August, 1992 providing ex-gratia payment upto Rs. 36000.00 to the land losers for purchase of productive assets or land for those who had not received employment in the project. 196. Dealing with the contention of the petitioners that there will b 23500 canal affected families and they should be treated at par to that of oustees in the submergence area, the respondents have broadly submitted that there is a basic difference in the impacts of the projects in the upstream submergence area and its impacts in the beneficiary zone of the command area....
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....y school (3 rooms) for 100 families and a drinking water well with trough and one platform for every 50 families. The number of families to which the civic amenities were to be provided was thus not uniform and it was not possible to derive therefrom a standardised pattern for the establishment of a site which had nexus with the number of oustees' families of a particular community or group to be resettled. These were not indicators envisaging re-settlement of the oustees families on the basis of tribes, Sub-tribes, groups or sub-groups. 199. While re-settlement as a group in accordance with the oustees preference was an important principle/objective, the other objectives were that the oustees should have improved or regained the standard of living that they were enjoying prior to their displacement and they should have been fully integrated in the community in which they were re-settled. These objectives were easily achievable if they were re-settled in the command area where the land was twice as productive as the affected land and where large chunks of land were readily available. This was what the Tribunal's Award stipulated and one objective could not be seen in iso....
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....ealth and, of course, they would have electricity which was not a common feature in the tribal villages. 202. Dealing with the contention of the petitioners that there was no provision for grazing land and fuel wood for the PAFs, it is rightly contended by the State of Gujarat that grazing land was not mandated or provided for in the Tribunal's Award but nevertheless, the grazing land of six villages was available for use of PAFs. It may be that the grazing land was inadequate but this problem will be faced by the entire State of Gujarat and not making such land available for them does not in any way violate any of the provisions of the Award. 203. With regard to providing irrigation facilities, most of the re-settlement of the project affected families were provided irrigation facilities in the Sardar Sarovar Project command area or in the command areas of other irrigation projects. In many of the out of command sites, irrigated lands were purchased. In cases where the irrigation facilities were not functioning, the Government of Gujarat had undertaken the work of digging tubewells in order to avoid any difficulty with regard to irrigation in respect of those oustees who....
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....rashtra and Madhya Pradesh, there is a system in force which will ensure satisfactory re-settlement and rehabilitation of the oustees. There is no basis for contending that some outside agency or National Human Rights Commission should see to the compliance of the Tribunal Award. MONITORING OF REHABILITATION PROGRAMME 205. The Ministry of Water Resources, Government of India is the Nodal Ministry for the Sardar Sarovar Project and other Union Ministries involved are the Ministries of Environment and Forests and Social Justice and Empowerment. As a consequence of the Tribunal's Award, Narmada Control Authority was created to co-ordinate and oversee the overall work of the project and to monitor the R&R activities including environmental safeguard measures. The Review Committee of the Narmada Control Authority consists of the Union Minister of Water Resources as its Chairman, the Union Ministry of Environment and Forests and the Chief Ministers of Gujarat, Madhya Pradesh, Maharashtra and Rajasthan as Members. This Review Committee may suo moto or on the application of any party State or the Secretary, Ministry of Environment and Forests review any decision of the Narmada Co....
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....eports to this Court from time to time. By order dated 24th October, 1994, this Court in the aforesaid case of B.D. Sharma (supra) observed that all the directions issued by the Court from time to time have been complied with and nothing more be done in the petition and the petition was disposed off. Most of the recommendations/observations as made by this Committee are stated to have been complied fairly by the States concerned. 207. In addition to the above, the officials of the Narmada Control Authority are also stated to be monitoring the progress of R&R regularly by making field visits. The individual complaints of the PAFs are attended and brought to the notice of the respective Governments. GRIEVANCES REDRESSAL MECHANISM 208. The appeal mechanism has been established in the policy statements by all the three State Governments for the redressal of grievances of the PAFs. According to this mechanism, if a displaced person is aggrieved by the decision of the Rehabilitation Officers in respect of any R&R process, he may appeal to the concerned agency/officers. 209. Vide Resolution dated February 17, 1999, the Government of Gujarat set up a high-level authority called....
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....&R Sub-group in its 20th field visit of the R&R sites in Gujarat on 12/ 13.1.2000 has noted as follows: The Committee after the visit and from interaction with the PAFs, concluded that there is vast improvement in the conditions of PAFs at these R&R sites as compared to the grievances reported for the same sites during previous visits by the Committee/NCA officers. Assessing the perception of PAFs the Committee observed that the majority of PAFs are happy and joining mainstream of country's development. 214. The Grievances Redressal Cell has dealt with and decided a total of over 6500 grievances. 215. At the instance of Grievances Redressal Authority, an Agricultural Cell is set up in Sardar Sarovar Punarvasavat Agency with effect from 1 st July, 1999. This was done with an objective of enhancing the productivity of agricultural land allotted to PAFs by adopting of suitable farm management practices and in assisting in resolving land related grievances. Similarly, w.e.f. 1.5.1999, Medical Cells have been set up in Sardar Sarovar Punarvasavat Agency for ensuring effective functioning of medical infrastructure and providing organised system of supervising and monit....
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....ropological agencies appointed by the State Governments of Maharashtra, Madhya Pradesh and Gujarat as well as Narmada Control Authority. These agencies, whic are professional and academic institutes, conduct surveys and in-depth studies relating to PAFs in the submergence and rehabilitation villages. The main object of the monitoring is oriented towards enabling the management to assess the progress, identify the difficulties, ascertaining problem areas, provide early warning and thus call for corrections needed immediately. 219. The Center for Social Studies, Surat is the monitoring agency for the Government of Gujarat. This Institute has prepared 24 six monthly progress reports in relation to the resettlement of PAFs of submergence villages of Gujarat. Similarly for the project affected families of Madhya Pradesh/Maharashtra who have re-settled in Gujarat, the Government of Gujarat has appointed the Gujarat Institute of Development Research, Ahmedabad as the independent Monitoring and Evaluation Agency for monitoring R&R programmes. 220. In Madhya Pradesh the monitoring and evaluation had been carried out by Dr. H.S.Gaur University, Sagar and the same has been disengaged no....
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.... allotted to these PAFs is 16973 hectares. 227. Dealing specifically with the status of PAFs at RL 90 mtr., 95 mtr. and 110 mtr. it is averred in the said affidavit that all the PAFs of Gujarat at RL 90 mtr. have been resettled and the balance PAFs of Madhya Pradesh and Maharashtra affected at RL 90 mtr. have already been offered R&R package in Gujarat. The process of re-settlement is continuing and reliance is placed on the observation of the GRA which has stated in its Fourth Report dated 15th November, 1999 that "There is substantial compliance of the Re-settlement and Rehabilitation measures as mandated by the Final Report of NWDT, including provision of civic amenities, and also of all the inter-linked provisions of the Government of Gujarat and that, therefore, PAFs from the States of Madhya Pradesh and Maharashtra affected upto the height of RL 90 mtr. can be accommodated as per their choice at these selected 35 sites in Gujarat." 228. With respect to the PAFs affected at RL 95 mtr. the affidavit states that the PAFs of Gujarat have already been settled and while the affected PAFs of Madhya Pradesh and Maharashtra have been offered R&R package in Gujarat in January 199....
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....hold discussions with prospective sellers, verify the suitability of land and after the prices is settled the same is procured through legal process of Land Acquisition Act and consent awards are passed so that the PAPs are assured of undisputed legal title free from all encumbrances. This process of negotiated purchase has been streamlined. At the instance of the GRA, a retired judge of the High Court is now appointed as Chairman of the Expert Committee with retired senior Government Secretaries as its members. This Expert Committee oversees the exercise of purchase of suitable land at the market price. At the instance of the GRA, PAPs are being issued Sanads for the land allotted to them which will ensure provision of a proper legal document in their favour. 232. Dealing with the term of the Award to the effect that Gujarat shall acquire and make available a year in advance of the submergence before each successive stage, land and house sites for rehabilitation of the oustees families from Madhya Pradesh and Maharashtra who are willing to migrate to Gujarat, the affidavit states that the Gujarat Government has already identified sufficient land for accommodating the balance PA....
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....e and built pucca core houses. Overhead tanks for drinking water are provided in large R&R sites. At the instance of GRA, toilets are being provided in the houses of PAFs with the help of NGOs. 234. The total cost incurred so far by the Government of Gujarat in providing the land and civic amenities upto May 2000 is stated to be 194 crores. The Grievances Redressal Cell is stated to have redressed large number of grievances of the PAFs whether they were related to land, grant of civic amenities or others. The salient features of working of the Grievance Redressal Cell is stated to be as follows: At present 2 senior IAS officers with supporting staff are working exclusively for redressal of grievances. A reasoned reply is given to the applicants. The applicant is also informed that if he is aggrieved with the decision he may prefer an appeal to GRA within thirty days. The Single Window Clearance System's main objective is to proactively resolve grievances and to avoid delays in inter-departmental co-ordination. Tatkal Fariyad Nivaran Samitis are held in the R&R sites to resolve grievance of the PAFs in an open forum. ....
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....ing of a physician, a pediatrician, a gynecologist, 21 MBBS doctors, pharmacists etc. The salient features of the medical help programme for the benefit of PAPs is stated to be as follows: The Medical Officers and paramedic staff are making house-to-house visits to motivate the PAPs to come forward to avail of the medical services In all dispensaries, a full time multipurpose health worker (female) is available. Multi-specialization diagnostic/ treatment camps are organised fortnightly, where advance investigations are diagnostic facilities like ECG, X-ray ultrasound are available. Patients requiring further services are brought to Government hospitals or any other specialty hospital and necessary treatment given free of cost. GOG has placed an order for a mobile medical hospital equipped with diagnostic and treatment equipments. A comprehensive health survey and medical check up covering 29423 PAPs has been completed. A special record system of family health folder and health profile of each PAP is prepared. Nutrition supplements are given to children (upto 6 years), expectant and lactating mothers through the Integrated Child ....
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.... year, 66 schools were upgraded by increasing the number of classes. SSPA is regularly sending the teachers for in-service training. So far 120 teachers have been imparted training. Every year during the period of June to August, a special drive is taken to increase the school enrolment. In the current year 150 adult education classes have been started in the R&R sites with the help of NGOs. An advisory committee has been created to make recommendations on how to improve the education being imparted. Members include faculty of MS University, officers of Education Department, Principal of Teacher Training center. 239. It is further averred in this affidavit that at the instance of GRA a large number of measures have been taken to improve the organisational structure of SSPA so as to effectively meet the challenge of R&R and make the R&R staff accountable. The salient features of this are stated to be as follows: A strategic policy decision has been taken to create three separate divisions in SSPA for Rehabilitation, Re-settlement and Planning. Each division is in charge of a senior level officer of the rank of Additional/Joint Commissi....
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.... other public purposes relating to R&R but which may not have been provided for in the NWDT award. 2. Henceforth, the land which is acquired or purchased for R&R purposes shall be contiguous to each other so as to constitute a compact block of 6 hectares. 3. Henceforth land to be purchased for R&R will be within a radius of 3 kms. from an existing or proposed new site and if there is a departure from this policy prior approval of the GRA will be obtained. 4. Demarcation of boundary of 5211 hectares of land whose survey has been undertaken by the GRA and carving out individual plots of 2 hectares for allotment to PAFs will be undertaken and completed on or before 31st December, 2000. 5. The other undertakings relate to soil testing and/or ensuring that suitable land is made available to the PAFs after the quality of land is cleared by the agriculture experts of the Gujarat Agriculture University. With regard to the lands in possession of the SSPA which are low lying and vulnerable to water logging during monsoon, an undertaking has been given that the land has been deleted from the inventory of lands available for R&R unless such lands are examine....
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....opment in 23 sites is in progress, 18 sites are such where location has been determined and land identified but development work has not started and 33 sites are such where location of land for the development is to be decided by the task force constituted for this purpose. 244. Dealing specifically with the states of PAFs to be affected at different levels this affidavit, inter alia, states that with regard to PAFs to be affected at EL 85 mtr. those of whom who have opted to go to Gujarat land has been offered to them by the Government of Gujarat, those PAFs who have changed their mind and new want to remain in Madhya Pradesh land is being shown to them in Madhya Pradesh. 245. It has not been categorically stated whether the PAFs who are so affected have been properly resettled or not. On the contrary, it is stated that no Awards in land acquisition cases have been passed in respect of six villages and it is only after the Awards are passed that house plots will be allotted and compensation paid. The provision for financial assistance for purchase of productive assets will be released when the PAFs shift and start construction of the houses. The reason for not making the pay....
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....tself absolve the State of Madhya Pradesh of its responsibility to take prompt steps so as to comply at least with the provisions of the Tribunal's Award relating to relief and rehabilitation. The State of Madhya Pradesh has been contending that the height of the dam should be lowered to 436 ft. so that lesser number of people are dislocated but we find that even with regard to the rehabilitation of the oustees at 436 ft. the R&R programme of the State is no where implemented. The State is under an obligation to effectively resettle those oustees whose choice is not to go to Gujarat. Appropriate directions may, therefore, have to be given to ensure that the speed in implementing the R&R picks up. Even the interim report of Mr. Justice Soni, The GRA for the State of Madhya Pradesh, indicates lack of commitment on the States part in looking to the welfare of its own people who are going to be under the threat of ouster and who have to be rehabilitated. Perhaps the lack of urgency could be because of lack of resources, but then the rehabilitation even in the Madhya Pradesh is to be at the expense of Gujarat. A more likely reason could be that, apart from electricity, the main bene....
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....ll than some of 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. 251. 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 scare commodity. It was, of course, contended on behalf of the petitioner that if the practice ....
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....nisation, it will be expected to undertake the exercise according to some procedure or principles. The NCA was constituted to give effect to the Award, various sub-groups have been established under the NCA and to look after the grievances of the resettled oustees and each State has set up a Grievance Redressal Machinery. Over and above the 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. 255. 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 infrastructure 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 th....
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.... the Constitution casts on it a great obligation as the sentinel to defend the values of the Constitution and rights of Indians. The courts must, therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the Court will not interfere. When there is a valid law requiring the Government to act in a particular manner the Court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words the Court itself is not above the law. 260. 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 C....
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.... and agricultural land would be submerged in water. It is because of this conflicting interest that considerable time was taken before the project was finally cleared in 1987. Perhaps the need for giving the green signal was that while for the people of Gujarat, there was no other solution but to provide them with water from Narmada, the hardships of oustees from Madhya Pradesh 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. 265. Since long the people of India have been deriving the benefits of the river valley projects. At the time of independence, food-grain was being imported into India but with the passage of time and the construction of more dams, the position has been reversed. The large-scale river valley projects per se all over the country have made India more than self-sufficient in food. Famines which used to occur have now become a thing of the past. Considering the benefits which have....
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....R&R plans are required to be specially drafted and implemented to mitigate problems whatsoever relating to all, whether rich or poor, land owner or encroacher, farmer or tenant, employee or employer, tribal or non-tribal. A properly drafted R&R plan would improve living standards of displaced persons after displacement. For example residents of villages around Bhakra Nangal Dam, Nagarjun Sagar Dam, Tehri, Bhillai Steel Plant, Bokaro and Bala Iron and Steel Plant and numerous other developmental sites are better off than people living in villages in whose vicinity no development project came in. It is not fair that tribals and the people in un-developed villages should continue in the same condition without ever enjoying the fruits of science and technology for better health and have a higher quality of life style. Should 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 ....
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....o 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. 271. 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 short fall i....
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.... of U.N.O. and Article 21 of the Constitution of India. Water in the rivers of India has great potentiality to change the miserable condition of the arid, drought-prone and border areas of India. 276. The availability of drinking water will benefit about 1.91 lac of people residing in 124 villages in arid and drought-prone border areas of Jalore and Banner districts of Rajasthan who have no other source of water and are suffering grave hardship. 277. 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 Rajasthan get is it's share of hydel power from the project. The lowering of the height from 455 ft. to 436 ft. will take away this benefit even though 9399 hectares of it's land will be submerged. With the reduction of height to 436 ft. not only will there be loss of power generation but it would also render the generation of power seasonal and not throughout the year. 278. One of the indicators of the living standard of people is the per capita consumption of electricity. There is, howe....
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....e Government to decide keeping various factors in mind. In the present case, a considered decision has been taken and an Award made whereby a high dam having an FRL of 455 ft. with capability of developing hydel power to be constructed. In the facts and circumstances enumerated hereinabove, even if this Court could go into the question, the decision so taken cannot be faulted. DIRECTIONS 280. While issuing directions and disposing of this case, two conditions have to be kept in mind, (i) the completion of project at the earliest and (ii) ensuring compliance with conditions on which clearance of the project was given including completion of relief and rehabilitation work and taking of ameliorative and compensatory measures for environmental protection in compliance with the scheme framed by the Government thereby protecting the rights under Article 21 of the Constitution. Keeping these principles in view, we issue the following directions. (1) Construction of the dam will continue as per the Award of the Tribunal. (2) As the Relief and Rehabilitation Subgroup has cleared the construction up to 90 meters, the same can be undertaken immediately. Further raising....
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....nd rehabilitation to the extent and within the period specified by the NCA. (8) The Review Committee shall meet whenever required to do so in the event of there being any un-resolved dispute on an issue which is before the NCA. In any event the Review Committee shall meet at least once in three months so as to oversee the progress of construction of the dam and implementation of the R&R programmes. If for any reason serious differences in implementation of the Award arise and the same cannot be resolved in the Review Committee, the Committee may refer the same to the Prime Minister whose decision, in respect thereof, shall be final and binding on all concerned. (9) The Grievances Redressal Authorities will be at liberty, in case the need arises, to issue appropriate directions to the respective States for due implementation of the R&R programmes and in case of non-implementation of its directions, the GRAs will be at liberty to approach the Review Committee for appropriate orders. (10) Every endeavour shall be made to see that the project is completed as expeditiously as possible. 281. This and connected petitions are disposed off in the afore....
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....ssments. 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 million, 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 incompatibilit....
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....corporation 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 the objective of rapid economic development on the sustained basis while safeguarding the natural resources including the air, water, land, flora and fauna for the benefit of present and future generations." The necessary data that was required to be collected for impact assessment was set out in the Guidelines. A chart of the impact assessment procedure was also contained in the Guidelines. 286. It appears, that, though it ought rightly to have been taken by the Ministry of Environment and Forests, the decision whether or not to accord environmental clearance to the Project was left to the Prime Minister. 287. A Note was prepared by the Ministry of Water Resources in or about October, 1986 on the environmental aspects of the Sardar Sarovar and the Narmada Sagar Multi Purpose Projects. It stated that a decision on the clearance of these projects from the environmental angle and under the Forest Conservation Act, 1980 had become a matter of urgency. Delays had occurred which had nece....
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....aring an action plan to reforest about 5500 hectares of the denuded forest in the impact area. In respect of fauna, the Note said that the Narmada Sagar Project authorities had commissioned a wildlife census of the areas by the Zoological Survey of India and were negotiating terms with the Indian Institute of Wildlife Management, Dehradun, for carrying out detailed wildlife studies for re-location purposes. They proposed to undertake all necessary steps to minimise the adverse impact of the Project on wildlife. Gujarat and Maharashtra were also taking similar action with the help of specialised agencies. In respect of the Projects' flora, the Note said that the first preliminary survey in the area by the Botanical Survey of India was started in December, 1985 and it was estimated that the survey would take two to three years to be completed. In respect of catchment area treatment, the Note said that field surveys were likely to be started shortly. The Project authorities had identified three representatives pilot project areas. The biological and engineering measures to be adopted in the treatment of the balance of the catchment area would be designed on the basis of the experi....
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....en in a time-bound manner. 13.2 The arguments against a postponement of clearance by three years are very strong. The postponement of the decision at this stage seemed, to the writers of Note, "scarcely conceivable". A postponement would lead to substantial increases in project costs and the benefits expected from the projects would be delayed. Also the work that had already been done would be rendered infructuous. The deferment of clearance by three years would put the organisational set-up that had been built up into a state of uncertainty, retard the momentum that had been gathered, and sap the organisational morale and motivation. The Note added, "Finally, the numerous studies, surveys, data collection exercises, plans for remedial measures, etc., which have been enumerated earlier would involve time, money and organisational commitment. With the project decision postponed for three years, and with no assurance that at the end of that period, the decision will be positive, it is difficult to believe that all these studies, surveys and plans relating to the environmental aspects will be pursued with energy and enthusiasm, and the necessary resources devoted to ....
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....was needed to be done to arrive at a workable and effective Command area development programme. As to compensatory afforestation, the land for the same was yet to be identified and procured before it could be evaluated for the purpose. In regard to the loss of flora and fauna, the following studies were considered absolutely essential to determine the adequacy or otherwise of the left over habitat to sustain wildlife: A wildlife census of the area" (ZSI will take atleast 2-3 years to complete the survey): (i) Preparation of a Master Plan showing all protected areas, National Parks, Wildlife Reserves, Reserve and Protected Forests, etc. on which should be superimposed the area to be taken up for various reservoirs, roads, canals, settlement colonies, etc. (ii) Study of the carrying capacity of the surrounding areas where the wildlife from the submergence area will disperse. In the circumstances, it was not considered possible to assess the impact of the loss of habitat on the wildlife and the overall loss of biological diversity. The absence and inadequacy of data on the following environmental aspects persisted: (i) Rehabilitation; (i....
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....raphs, satellite imagery and ground checks; creation of a chain of nurseries of suitable species for biological treatment of the catchment area; and preparation of phased action programme for biological and engineering treatment of the degraded catchment area. Considering that catchment area treatment on an intensive scale was imperative, both to reduce silt load and to maintain ecological balance, and keeping in view the fact that the interpretation of the aerial photographs and satellite imagery would take at least one year for completion, to be followed by ground truth checks; the detailed land and soil surveys would take three years to be completed; the geo-morphological studies to suggest the engineering and biological treatment for the eroded areas were still to be taken up and the chain of nurseries needed to provide the necessary saplings in adequate quantity along with "manpower and other infrastructure requirements were still to be mobilised, it was "reasonable to conclude that the catchment area treatment programme can be realistically formulated only after three years when these data become available". Command area development was to achieve the prevention of water-logg....
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....the Project Authorities will be completed only by 1989. The other studies have not yet been initiated. Under the circumstances, it is not possible to assess the impact of the loss of habitat on the wildlife and the overall loss of biological diversity and genetic reserves. Even if one were to assume that the forests to be destroyed do not contain genetic resources, which in any case cannot be valued, the simple loss of these forests would have on environmental cost estimated at several thousand crores of Rupees as per norms developed by FRL. The environmental cost is thus colossal. The Note concluded: (1) Taking note of the fact that the project formulation has been in progress for more than three decades and the active interaction of the Project authorities with the Department of Environment has been going on for almost three years, the absence and inadequacy of data on some important environmental aspects still persists. (2) In an objective sense the NSP is not ready for clearance from environmental angle. Even though SSP is in a fairly advanced stage of preparedness, it is neither desirable nor recommended that the SSP should be given approval in isolatio....
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....he Prima Minister had discussed the matter with the Secretary, Water Resources and the Secretary, Environment and Forests and it had been agreed that clearance might be given on the following conditions: Preparation in due time of detailed and satisfactory plans for rehabilitation, catchment area treatment, compensatory afforestation and Command Area Development. Setting up of Narmada Management Authority with adequate powers and teeth to ensure that environmental management plans are implemented pari passu with engineering and other works. Below the aforesaid Note, the Secretary to the Prime Minister sought his approval to conditional clearance of the Project from the environmental angle. The Project, she said, had been pending clearance for seven years and the Chief Ministers of Gujarat and Madhya Pradesh were keenly awaiting it. The Chief Minister of Gujarat had requested a "green signal" before 20th January, 1987. 291. On 19th January, 1987 the Prime Minister made a handwritten endorsement on the aforesaid Note, "Perhaps this is a good time to try for a River Valley Authority, Discuss". But it appears that a River Valley Authority was not found feasible ....
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....btained separately. No work should be initiated on forest area prior to this approval. 7. Approval from environmental and forestry angles for any other irrigation, power or development projects in the Narmada Basin should be obtained separately. 293. Even in 1987, when the environmental clearance to the Project was given, it had been found necessary by the Union of India to rigorously assess the environmental impact of river valley projects. This was to determine whether the uniqueness of the natural resources, like wildlife, flora and the genetic pool in the region, demanded its exclusive earmarking for that purpose, in which event the river valley project would not be accorded clearance. Even otherwise, it was imperative to consider the Project's environmental aspects, such as its effect on health, plant genetic resources, aquatic resources, water-logging and salinity of irrigated soils, deforestation and soil conservation. Its short and long term impact on population, on flora and fauna, on wildlife, on national parks and sanctuaries, on historical, cultural and religious monuments, on forests, agriculture, fisheries and recreation and tourism had to be taken in ....
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....nditions upon which the environmental clearance was given were that detailed surveys and studies would be carried out and the Narmada Control Authority, whose terms of reference had been amplified, would ensure that "environmental safeguard measures" were planned and implemented pari passu with the progress of work on the Project. No further assessment of the environmental impact of the Project was contemplated by the environmental clearance, nor, indeed, was it ever carried out. 297. What the environmental safeguards measures the Narmada Control Authority was to ensure were, and what their cost would be, was not known when the environmental clearance was given. There was, therefore, no way in which this cost could be included in the cost of the Project, which was a requirement of the Guidelines. 298. While the environmental safeguard measures were to be planned and implemented pari passu with the progress of the work on the Project, the catchment area treatment programme and the rehabilitation plans were required to be "so drawn as to be completed ahead of reservoir filling". This condition clearly required that before any water was impounded in the reservoir the catchment a....
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.... and their cost, had been worked out. 301. 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 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 vo 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 th....
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.... 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. 303. When the writ petition was heard at the admission stage, this Court was most concerned about the distressing state of the relief to and rehabilitation of those ousted on account of the Project. The proper implementation of relief and rehabilitation measures was the aim of the Court at that time; but it was not contemplated that the other issues in the writ petition would not to be considered at the stage of its final hearing. 304. The many interim orders that this Court made in the years in which this writ petition was pending show how very little had been done in regard to the relief and rehabilitation of those ousted. It is by reason of the interim orders, and, in fairness, the cooperation and assistance of learned Counsel who appeared for the States, that much that was wrong has now been redressed. The States have also been persuaded to set up Grievance Redressal Authorities and it will be the responsi....
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....earance 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. 309. 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. 310. 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 27th January, 1994, called the Environmental Impact Assessment Notification, 1994. (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 env....