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TMI Blog2000 (10) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... itation 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 had to be careful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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; - Groundwater level, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo 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 shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hensions. 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 progr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleted; detailed operational plans 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-forest land for compensatory afforestation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p speed and thus at no time will the requisite information be fully 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 rehabilitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal Appraisal Committee for River Valley Projects and discussions with the Central and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istry of Environment and Forests, also referred to above, leave no manner of doubt that the requisite data for assessment of the environmental impact of the Project was not available when the environmental clearance thereof was granted. In the words of one of the Notes, While some plans have been made, studies undertaken and action initiated, it will be clear from the preceding paragraphs that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plans should be drawn in such a manner that the catchment area treatment and the rehabilitation works would be completed ahead of impoundment in the reservoir. This, plainly, was intended to off set, so far as was possible in the circumstances, the adverse effect of the impoundment of water in the reservoir upon the catchment and those who were required to be settled elsewhere. In fact, the impoundment began much before. 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 acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are helpful insofar as they prescribe who is to assess the environmental impact assessment reports and environment management plans that are submitted by applicants for new projects, including 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 Scien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . During the time that it takes to assess the environmental impact of the Project, the States must take steps to obtain, by acquisition or otherwise, vacant possession of suitable lands upon which the oustees can be rehabilitated. When the Project obtains environmental clearance, assuming that it does, each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra must certify, after inspection, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present level have already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who will be 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, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll cease. (6) The Grievance Redressal Authorities of the States of Gujarat. Madhya Pradesh and Maharashtra shall ensure that those ousted by reason of the Project are given relief and rehabilitation in due measure. (7) When the Project obtains environmental clearance, assuming that it does, each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall, after inspection, certify, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the recommendations of the aforesaid Ad-hoc Committee, estimates for investigations of the Bargi, Tawa, Punasa (Narmadasagar) and Broach Projects were sanctioned by the Government of India in March, 1949. 36. The Central Water Power Commission carried out a study of the hydroelectric potential of the Narmada basin in the year 1955. After the investigations were carried out by the Central Water 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 lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer benefits of Punasa Power Project shall be shared in the ratio 1:2 between the Governments of Gujarat and Madhya Pradesh. Out of the power available to Madhya Pradesh half of the quantum was to be given to the State of Maharashtra for a period of 25 years for which the State of Maharashtra was to provide a loan to the extent of one-third the cost of Punasa Dam. The loan to be given by the State of Maharashtra was to be returned within a period of 25 years. c) Bargi Project was to be implemented by the State of Madhya Pradesh, Bargi Dam was to be built to FRL 1365 in Stage I and FRL 1390 in Stage II and the Governments of Gujarat and Maharashtra were to give a total loan assistance of ₹ 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 Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive need for this); and 5. All available water should be utilised to the maximum extent possible for irrigation and power generation and, when no irrigation is possible, for power generation. The quantity going waste to the sea without doing irrigation or generating power should 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 G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the rights and interests of Gujarat State by compelling it to restrict the height of the dam at Navagam to FRL 210 ft. or less. Reducing the height of the dam would mean the permanent detriment of irrigation and power benefits that would be available to the inhabitants of Gujarat and this would also make it impossible 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute the Navagam Project and the Tribunal had the jurisdiction to give consequent directions to Gujarat and other party States regarding payment of compensation to Maharashtra and Madhya Pradesh, for giving them a share in the beneficial use of Navagam dam, and for rehabilitation of displaced persons. 48. Against the aforesaid judgment of the Tribunal on the preliminary issues, the States of Madhya Pradesh and Rajasthan filed appeals by special leave to this Court and obtained a stay of the proceedings before the Tribunal to a limited extent. This Court directed that the proceedings before the Tribunal should be stayed but discovery, inspection and other miscellaneous proceedings before the Tribunal may go on. The State of Rajasthan was directed to participate in these interlocutory proceedings. 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 Advi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AWARD OF THE TRIBUNAL The main parameters of the decision of the Tribunal were as under: A) DETERMINATION OF THE HEIGHT OF SARDAR SAROVAR DAM The height of the Sardar Sarovar Dam was determined at FRL 455 ft. The Tribunal was of the view that the FRL +436 ft. was required for irrigation use alone. In order to generate power throughout 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for Water Resources) as its Chairperson and the Chief Ministers of Madhya Pradesh, Maharashtra, Gujarat and Rajasthan as its members. The Review Committee might review the decisions of the Narmada Control Authority and the Sardar Sarovar Construction Advisory Committee. The Sardar Sarovar Construction Advisory Committee headed by the Secretary, Ministry of Water Resources as its Chairperson was directed to be constituted for ensuring efficient, economical and early execution of the project. 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 458 KM. long which is to carry away the water meant for irrigation and drinking purposes to the canal systems of Gujarat and Rajasthan. Expected benefits from the project: 57. The benefits expected to flow from the implementation of the Sardar Sarovar Project had been estimated as follows: Irrigation: 17.92 lac hectare of land spread over 12 districts, 62 talukas and 3393 villages (75% 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Rehabilitation Master Plan 2. Phased Catchment Area Treatment Scheme 3. Compensatory Afforestation Plan 4. Command Area Development 5. Survey of Flora and Fauna 6. Carrying capacity of surrounding area. 7. Seism city and 8. Health Aspects 3. Field surveys are yet to be completed. The first set of information hash been made available and complete details 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 carrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... headed by Secretary (Welfare) to monitor the rehabilitation aspects of Sardar Sarovar Project. 65. The Narmada Bachao Andolan, the petitioner herein, had been in the forefront of agitation against the construction of the Sardar Sarovar Dam. Apparently because of this, the Government of India, Ministry of Water Resources vide Office Memorandum dated 3rd August, 1993 constituted a Five Member Group to be headed by Dr. Jayant Patil, Member, Planning Commission and Dr. Vasant Gowarikar, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble at the stage when an expenditure of ₹ 4000 crores had been incurred and an additional contract amounting to ₹ 2000 crores entered into and the various parameters and features of the project having been designed with respect to FRL 455 ft. that there should be a reduction of the height of the dam. The other three Members proceeded to answer this question by first observing as follows: We must now draw conclusions from the foregoing analysis, but a preliminary point needs to be made. The SSP is now in an advanced 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 ₹ 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 commenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to the environment it observed that this subject had been by and large covered in the first FMG report. RIVAL CONTENTIONS 72. On behalf of the petitioners, the arguments of Sh. Shanti Bhushan, learned senior counsel, were divided into four different heads, namely, general issues, issues regarding environment, issues regarding relief and rehabilitation and issues regarding review of Tribunal's Award. The petitioners have sought to contend that it is 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance given in 1987 by filing a writ petition in 1994. It has sought to contend that there was lack of study available regarding the environmental aspects and also because of the Seism city, the clearance should not have been granted. The rehabilitation packages are dissimilar and there has been no independent study or survey done before decision to undertake the project was taken and construction started. 77. The project, in principle, was cleared more than 25 years ago when the foundation stone was laid by late Pandit Jawahar Lal Nehru. Thereafter, there was an agreement of the four 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 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is highly belated. Though it is, therefore, not necessary to do so, we however presently propose to deal with some of the other issues raised. AWARD-BINDING ON THE STATES 81. It has been the effort on the part of the petitioners to persuade this Court to decide that in view of the difficulties in effectively implementing the Award with regard to relief and rehabilitation and because of the alleged adverse impact the construction of the dam will have on the environment, further construction of the dam should not be permitted. The petitioners support the contention on behalf of the State of Madhya Pradesh to the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther report giving such explanation or guidance as it deems fit. Thereby the original decision of the Tribunal is modified to the extent indicated in the further decision as provided under Section 5(3) of the Act. Under Section 6 of the Act the Central Government is duty bound to publish the decision of the Tribunal in the Official Gazette whereafter the said decision becomes final and binding on the parties to the dispute and hash to be given effect to, by them. The language of the provisions of Section 6 is clear and unambiguous and unequivocally indicates that it is only the decision of the Tribunal which is required to be published 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its current best estimates of cost, benefits and evaluation of alternatives and specially in view of the large displacement of tribals and other marginal farmers involved in the project. Elaborating this contention, it was contended that serious doubts had been raised about the benefits of the project - the very rationale which was sought to justify the huge displacement and the massive environmental impacts etc. It was contended on behalf of the petitioners that a project which was sought to be justified on the grounds of providing a permanent solution to water problems of the drought prone areas of Gujarat would touch only the fringes of these areas, namely, Saurashtra and Kutch and even this water, which was allocated on paper, would not really accrue due to 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 Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Narmada flows in hilly gorge from the origin to the Arabian Sea. The undulating hilly terrain in the lower submergence area of Sardar Sarovar Project exhibit naked hills and depleted forests. Even small forest animals area very rarely seen because of lack of forest cover and water. The oft-quoted symbiotic living with forests is a misnomer in this area because the depleted forests have nothing to offer but fuel wood. Soil is very poor mostly disintegrated, granite and irrigation is almost nil due to undulating and hilly land. Anybody visiting this area finds the people desperately sowing even in the hills with steep gradient. Only one rain fed crop of mostly maize is 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), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a victim of displacement. Instead, they will gain from shifting. The present policy of compensation is most beneficial for the lot of weaker section. These people are living either as labourers or marginal farmers. The status of oustee will make them the owner of two hectares of land and a house. In fact, it is the land-owning class which is opposing the construction of dam by playing the card of tribals and weaker sections. The land-owners are presently enjoying the benefit of cheap labour in this part of the region. Availability of cheap labour is boon for agricultural activities. This makes them to get higher return with less inputs. It is apparent that the tribal population affected 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 propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failure as well as to meet the demand during dry season. It is estimated that by the year 2050 the country needs to create storage of at least 600 billion cubic meter against the existing storage of 174 billion cubic meter. 89. Dams play a vital role in providing irrigation for food security, domestic and industrial water supply, hydroelectric power and keeping flood waters back. On full development, the Narmada has a potential of irrigating over 6 million hectares of land and generating 3000 mw of power. The present stage of development is very low with only 3 to 4 Maf of waters being used by the party States for irrigation and drinking water against 28 Maf availability of water at 75% dependability as fixed by 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilitation at new locations they are better off than what they were. At the rehabilitation sites they will have more and better amenities than which they enjoyed in their tribal hamlets. The gradual assimilation in the main stream of the society will lead to betterment and progress. ENVIRONMENTAL ISSUES 92. The four issues raised under this head by Sh. Shanti Bhushan are as under: I. Whether the execution of a large project, having diverse and far reaching environmental impact, without the proper study and understanding of its environmental impact and without proper planning of imitative measures is a violation of fundamental rights of the affected people guaranteed under Article 21 of the Constitution of India? II. Whether the diverse environmental impacts of the Sardar Sarovar Project have been properly studied and understood? III. Whether any independent authority has examined the environmental costs and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontentions, Sh. Shanti Bhushan relied upon the report of a Commission called the Independent Review or the Morse Commission. The said Commission had been set up by the World Bank and it submitted its report in June, 1992. In its report, the Commission had adversely commented on practically all aspects of the project and in relation to environment, it was stated as under: Important assumptions upon which the projects are based are now questionable or are known to be unfounded. Environmental and social trade-off have been made, and continue to be made, without a full understanding of the consequences. As a result, benefits tend to be over-stated, while social and environmental costs are frequently understated. Assertions have been substituted for analysis. 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Gujarat submitted to the Central Water Commission a detailed project report in 14 volumes. This was an elaborate report and dealt with various aspects like engineering details, canal systems, geology of area, coverage of command area etc. On 15th February, 1980 the Central Water Commission referred SSP to the then Department of Environment in Department of Science Technology. At that point of time, environmental clearance was only an administrative requirement. An environmental checklist was forwarded to Government of Gujarat on 27th February, 1980 which sought to elucidate information including following ecological aspects: i) Excessive sedimentation of the reservoir ii) Water logging iii) Increase in salinity of the ground water iv) Ground water recharge 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... *Water Regime (Salinity, Tidal movements etc.) *Fisheries *Health *Seism city 103. A review meeting was convened by the Secretary, Ministry of Water Resources in January, 1984 which was attended by a representative of the Department of Environment. During this meeting, it was emphasized that the issues regarding catchment area treatment, impact on wildlife, health, water logging etc. should be studied in depth for assessment. The issue of charging of cost of catchment area treatment to the project was also discussed. To sort out this matter, a meeting was subsequently convened by the Member, Planning Commission on 23rd May, 1984 in which the Ministry of Environment Forests took a stand that there was a need for an integrated approach to basin development covering the catchment and command 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... *Arrangements made for exploitation of mineral resources going under submergence. *Alternative fuels to the labourers. *Micro-climatic changes. *Arrangements made for treatment of catchment area including soil conservation afforestation. *Steps taken for preserving are haeological and historical monuments. *Proper land use *Actions taken by Government of Maharashtra in pursuance of Dewan Committee Report. *Arrangements for monitoring for environmental impact for the project. *Data related to rehabilitation of project affected persons. 107. The Government of Gujarat also forwarded to the Government of India work plans on the following: Forests and Wildlife Fish and Fisheries Health aspects The work plan on forests and wildlife incorporated actions 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 hae ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion set out, it was necessary that the project should be cleared from the environmental angle, subject to conditions and stipulations outlined. 111. The Department of Environment and Forests made its own assessment through a note of the Secretary, Ministry of Environment and Forests. It took the view that following surveys/studies as set out therein might take at least 2-3 years. It noted in this regard that: i) The estimate of Ministry of Water Resources on analysis of aerial photographs and satellite imageries as 2-3 years. ii) Catchment area treatment programme can be formulated by three years thereafter; iii) Wildlife census by Zoological Survey of India would take at least three years; iv) Survey by Botanical Survey of India would take three years. It further took the view that it was essential that there should be a strong management authority. 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 ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Narmada Sagar and Sardar Sarovar Project. The minutes of the meeting, inter alia, disclosed it was decided that the Government of Gujarat would identify lands for allocation to the project affected persons of Madhya Pradesh within a specified period of time. The meeting also envisaged the arrangement of a Monitoring and Enforcement Authority to monitor the project and to ensure that the actions on the environmental aspects proceed according to the schedule and pari passu with the rest of the project . This Authority was not to be mainly a advisory one but was to be given executive powers of enforcement including the power to order stoppage of construction activity in the event of its being of the opinion that there was lack of progress in action on the environmental front. 114. On 19th December, 1986, the Secretary, Ministry of Environment and Forests sent to the Secretary to the Prime Minister a combined note 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; ii) Preparation in due time, detailed and satisfactory plans for rehabilitation, catchment area treatment, compensatory afforestation and command area development; iii) 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. 116. It is further stated in the note that the Ministry of Water Resources and the State Governments had no difficulty in accepting conditions (ii) and (iii). With regard to review of design parameters and dam height, the Ministry of Water Resources had examined the same after taking into consideration the comments of the Central Water Commission and concluded that the reduction of the FRL of the Narmada Sagar project would not be worthwhile. The Secretary to the Prime Minister had discussed the matter with the Secretary, Ministry of Water Resources and Secretary, Ministry of 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated before mischief is done by the interested parties. 117. Along with another affidavit of Shri P.K. Roy, Under Secretary, Prime Minister's Office dated 2nd May, 2000, some correspondence exchanged between Legislature and the Prime Minister has also been placed on record relating to the granting of the environmental clearance by the Prime Minister. On 31st March, 1987, Shri Shanker Sing Vaghela, the then Member of Parliament, Rajya Sabha had written a letter to the Prime Minister in which it was, inter alia, stated that the foundation stone for the Narmada Project had been laid 25 years ago by the late Pandit Jawahar Lal Nehru and that after the Tribunal's Award, Mrs. Indira Gandhi had cleared the project in 1978, but still the environmental clearance had not so far been given. It was also stated in his letter that the project was now being delayed on account of so-called environmental problems. It was further stated in his letter that the Sardar Sarovar 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an M.L.A. of Gujarat and the reply of the Prime Minister thereto. In the said letter dated 10th June, 1987, Smt. Shrimali thanked the Prime Minister for clearing the Narmada project and it was stated that the dry land of Gujarat and Saurashtra would be fertilised through Narmada Yojna. To this, reply dated 30th June, 1987 of the Prime Minister was as follows: Thank you for your letter of 10th June. The visit to Surendranagar was useful and educative. We are all looking forward to the early implementation of the Sardar Sarovar project. The question of environmental protection also needs serious attention. I wish you and the people of Surendranagar a good monsoon. 118. From the documents and the letters referred to hereinabove, it is more than evident that the Government of India was deeply concerned with the environmental aspects of the Narmada Sagar and Sardar Sarovar Project. Inasmuch as there was some difference of opinion between the Ministries of Water Resources 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a responsibility on the NCA to ensure that the environmental aspects are always kept in view. The best way to attain the first and the fourth condition - was to create an environmental sub-group headed by the Secretary in the Ministry of Environment and Forest. (b) The second condition - the conducting of surveys by its very nature - could not be made time bound. The surveys related to various activities to undo any damage or threat to the environment not only by the execution of the project but in the long term. Therefore, any delay in the conduct of surveys was not critical. Besides, a perusal of the latest status report on environment shows that a large number of surveys were carried out right from 1983 and also after 1987. (c) The third condition has already stood fully complied with as observed by Environment Sub-Group. (d) The fourth condition again involved keeping the department informed. 121. It was submitted that the concept of lapsing is alien to such conditions, In 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under, amongst other things The Narmada Control Authority has already prepared an action plan and status on the environmental measures of Sardar Sarovar Project and submitted to the Ministry of Environment and Forests vide their letter No. NCA/EM/683 dated 11.8.1992 for concurrence. As may be seen from their report on action, so far there is no safeguard measures. During field season of every year this will be closely reviewed to attain pari passu objectives so that the submergence during monsoon is taken care of. The above actions are scheduled to be completed by June, 1993. No doubt, action in Maharashtra is lagging. The matter was taken up with the Chief Secretary of Maharashtra. A copy of his reply dated 7.11.1992 is enclosed. You will observe that the reasons for the lag are largely due to the un-cooperative and agitational approach adopted by some people. Taking all these into account, you will appreciate that the action plans are adequate. The Minister for Water Resources, Government 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 envir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s report as is evident from its press release dated 22nd June, 1992 where it was, inter alia, stated as follows: The Morse Commission provided a draft of its report to the Bank for management' comments several weeks prior to the final release of the document. About two weeks before this release, the commission provided a draft of its findings and recommendations. The final version of the report is the sole responsibility of its authors; the report was not cleared by the World Bank. On resettlement and rehabilitation (R R), Bank management agrees with the description of the R R situation in each of the three states and with the report's conclusions about the shortcomings in the preparation and appraisal of the project's R R aspects. We also agree that work should have been done earlier on the issue of people affected by the canal in Gujarat. However, we do not share the view that resettlement would be virtually impossible even if Maharashtra and Madhya Pradesh adopted the liberal resettlement package provided for displaced people by the State of Gujarat. Given the experience so far, and the fact that most of the impact of submergence on people will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable command area of 1.9 million hectares in Gujarat and 75,000 hectares in Rajasthan. The introduction of fresh water to the drought-prone areas of Gujarat will create obvious benefits for the farming communities. In order to safeguard these benefits, control and monitoring was suggested by the Secretary, Ministry of Environment and Forests and Chairman of the Environment Sub-group in the following areas from time to time: drainage, water logging and soil salinity; water quality; forest loss; potential impact on flora and fauna; effects on public health; socio-economic impacts. 128. Pursuant thereto fifty in-depth studies had been carried out by the State Governments of Gujarat and Rajasthan and some of the studies were still in progress. One of the main objectives of carrying out these studies was to prevent excessive use of ground water and water-logging. 129. There is no reason whatsoever as to why independent experts should be required to examine the quality, accuracy, recommendations and implementation of the studies carried out. The Narmada Control Authority and the Environmental Sub-group in parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal Sub-group as on 28th September, 1999 stated that catchment area treatment works were nearing completion in the states of Gujarat and Maharashtra. Though, there was some slippage in Madhya Pradesh, however, overall works by and large were on schedule. This clearly showed that the monitoring of the catchment treatment plan was being done by the Environmental Sub-group quite effectively. 132. With regard to compensatory afforestation it was contended by Sh. Shanti Bhushan that it was being carried out outside the project impact area. Further, it was submitted that the practice of using waste land or lesser quality land for compensatory afforestation means that the forest will be of lesser quality. Both of these together defeated the spirit of the compensatory afforestation. It was contended that the whole compensatory afforestation programme was needed to be looked at by independent experts. -134. While granting approval in 1987 to the submergence of forest land and/or diversion thereof for the SSP, the Ministry of Environment and Forests had laid down a condition that for every hectare of forest land submerged or diverted for construction of the project, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e identified as follows: Stage 1 covers the period roughly from the completion of Sardar Sarovar Dam to the year 2015. Events occurring during this stage include (a) SSP Canal Command will have reached full development and requires diversion of some water, (b) the upstream demand will reach about 8 MAF and (c) the Narmada Sagar Dam will have been built and placed in operation. Stage 2 covers the period from 2015 and 2030 during which the demands upstream of SSP continue to grow and will reach about 12 MAP still below the volume of 18 MAF that Madhya Pradesh can take in a 75% year. Stage 3 covers the period upto and beyond full basin development. The report given by M/s. H.R. Wallingford in March, 1993 in respect of the down stream impacts of Sardar Sarovar Dam observes, inter alia, as under: The overall conclusion of the team undertaking the assessment described in this report is that there are no down steanm impacts whose magnitude and effect are such as to cause doubts to be cast over the wisdom of proceeding with the Sardar Sarovar Projects provided that appropriate monitoring and mitigation measurers are applied. Much of this work is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of religious or cultural importance which are protected by the State Government; and Type 3: monuments which are neither Centrally nor State protected, but which are considered to be an important part of cultural heritage. Under the same law, authorities charged with the protection of the monuments are permitted to take suitable measures to ensure the preservation of any protected site under threat from decay, misuse or economic activity. In the case of Sardar Sarovar, where several sites may be submerged, the NDWT award stipulated that the entire cost of relocation and protection should be chargeable to Gujarat. Relocation work was to be supervised by the Department of are haeology under the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. 140. The three State Governments carried out a complete survey of cultural and religious sites within the submergence zone. The principle of these surveys was to list all are haeological sites, identify and name any site under state protection and further identify sites of religious or cultural significance which, although not protected under national law, were of suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been on. It was also contended that the impact on some of these Wild Ass Sanctuary in Kutch would be very severe. 142. The guidelines of the Ministry of Environment and Forests required that while seeking environmental clearance for the hydropower projects, surveys should be conducted so that the status of the flora and fauna present could be assessed. A condition of environmental clearance of 1987 as far as it related to flora and fauna was that the Narmada Control Authority would ensure in-depth studies on flora and fauna needed for implementation of environmental safeguard measurers. It is the case of the respondents that number of studies were carried out and reports submitted. It was observed that the submergence area and catchment area on the right bank of the proposed reservoir exhibited a highly degraded ecosystem which was in contract to the left bank area where there was fairly good forest cover which formed part of Shoolpaneshwar Wildlife Sanctuary. With regard to the study of fauna, the said report indicated that a well-balanced and viable ecosystem existed in the Shoolpaneshwar Sanctuary. Moreover, with the construction of dam, water availability and soil mois ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e responsibility by the Ministry of Environment and Forests indicated that it was not taking the whole issue with the seriousness it deserved. 146. On behalf of the State of Gujarat, it was contended that various alleged dangers relating to environment as shown by the petitioners were mostly based on the recommendations of the Morse Committee Report and Five Member Group. While the report of Morse Committee does not require our attention, the same not having been accepted either by the World Bank or the Government of India. Para 4.5.2 of the report of Five Member Group which relates to creation of the Environment Sub-group commends it's establishment, it's observation about its powers is as follows: 4.5.2. It must be noted that the Environmental Sub-group is not a body which merely observes and reports, but watchdog body which can recommend even the stoppage of work if it feels dissatisfied with the progress on the environment front. The recommendations of the Environmental Sub-Group will have to be considered by the NCA, and if there is any difference of opinion at that level, it will have to be referred to the Review Committee, which has the Minister of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consent, inter alia, stated that the unit was a polluting industry which fell under the red category of polluting industry and it would not be desirable to locate such an industry in the catchment area of Himayat Sagar, a lake in Andhra Pradesh. The appeal filed by the company against the decision of the Pollution Board was accepted by the appellate authority. A writ petition was filed in the nature of public interest litigation and also by the Gram Panchayat challenging the order of the appellate authority but the same was dismissed by the High Court. On the other hand, the writ petition filed by the company was allowed and the High Court directed the Pollution Board to grant consent subject to such conditions as may be imposed by it. 149. It is this decision which was the subject-matter of challenge in this Court. After referring to the different concepts in relation to environmental cases like the 'precautionary principle' and the 'polluter-pays principle', this Court relied upon the earlier decision of this Court in Vellore Citizens' Welfare Forum v. Union of India AIR1996SC2715 and observed that there was a new concept which places the burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry. The construction of a dam undoubtedly would result in the change of environment but it will not be correct to presume that the construction of a large dam like the Sardar Sarovar will result in ecological disaster. India has an experience of over 40 years in the construction of dams. The experience does not show that construction of a large dam is not cost effective or leads to ecological or environmental degradation. On the contrary there has been ecological up gradation with the construction of large dams. What is the impact on environment with the construction of a dam is well-known in India and, therefore, the decision in A.P. Pollution Control Board's case (supra) will have no application in the present case. 152. Reference was made by Sh. Shanti Bhushan to the decision of the United States District Court in the case of Sierra Club et. v. Robert F. Froehlke (1973) 350 bF.Supp. 1280. In that case work had begun on Wellsville Project which, inter alia, consisted of a construction of a low dam. It was the case of the plaintiff that the construction of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd if in respect of a few of them adequate data was not available it does not mean that the decision taken to grant environmental clearance was in any way vitiated. The clearance required further studies to be undertaken and we are satisfied that this has been and is being done. Care for environment is an on going process and the system in place would ensure that ameliorative steps are taken to counter the adverse effect, if any, on the environment with the construction of the dam. 155-156. Our attention was also drawn to the case of Tennessee Valley Authority v. Hiram G. Hill 437 US 153 : 57 L Ed 117 : 98 SCt 2279 where the Tennessee Valley Authority had begun construction of the Tellico Dam and reservoir project on a stretch of Little Tennessee River. While major portion of the dam had been constructed the Endangered Species Act 1973 was enacted wherein a small fish popularly known as the Snail darter was declared an endangered species. Environmental groups brought an action in the United States District Court for restraining impounding of the reservoir on the ground that such an action would violate the Endangered Species Act by causing the snail darter extinction. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I without prior environmental clearance of the Central Government in accordance with the procedure now specified. In the present case clearance was given by the Central Government in 1987 and at that time no procedure was prescribed by any statute, rule or regulation. The procedure now provided in 1994 for getting prior clearance cannot apply retrospectively to the project whose construction commenced nearly eight years prior thereto. RELIEF AND REHABILITATION 158. It is contended by the petitioner that as a result of construction of dam over 41,000 families will be affected in three States spread over 245 villages. The number of families have increased from 7000 families assessed by the Tribunal. It was further contended that the submergence area can be broadly divided into two areas, fully tribal area which covers the initial reach of about 100 or so villages which are almost 100 % tribal and hilly. These include all the 33 villages of Maharashtra, all 19 of Gujarat and many of the Madhya Pradesh. The second part of the submergence area is the mixed population area on the Nomad plains with a very well developed economy that is well connected to the mainstream. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dult sons. II] Incorrect surveys have been conducted and the affected persons have serious apprehensions about the validity of the surveys since at many places the level markings are suspect, in many cases the people affected at higher levels have been given notices for lower levels, many others at the same levels have been left out and so on. It is also alleged that there have been short-comings in the policies and if they are corrected many more oustees will be entitled to PAFs status. Further more the cut off date for PAFs in Madhya Pradesh including adult son is linked to the date of issuance of notification. Since land acquisition process is still incomplete the number of adult sons entitled to land would increase with the issuance of fresh Section 4 Notification. 161. From the aforesaid it was contended that the total impact in terms of number of oustees as well as land entitlement will be much larger than what is considered in the Master Plan. 162. It is also submitted that there was major lacunae in the said policy like the three States having dissimilar policy for R R. This difference in rehabilitation packages of different States, with the packa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Gujarat. The issue of community resettlement is stated to be not merely an issue of community facility but is a more fundamental issue. The issue is really one of preserving social fabric and community relation of the oustees which, it is alleged, is being destroyed due to dispersal of the community who are being resettled at different sites. 165. Dealing with the situation of those oustees who have been resettled in Gujarat it is submitted by the petitioner that there are large number of grievances of the said outsets in 35 re-settlement sites. With the passage of time the number of problems overall would become much more, is the contention. The petitioner finds fault with the quality of land which has been given in Gujarat to the oustees contending that large number of oustees have been given land outside the command area of irrigation and in some re-settlement sites there is a serious water-logging problem. It also contends that though some amenities have been provided but they are not adequate. It is also the case of the petitioner that sufficient land for resettlement of the oustees from Madhya Pradesh is not available in Gujarat despite the claim of the State of Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arma v. Union of India's case this Court has held that resettlement and rehabilitation has to be done at least six months in advance of submersion, complete in all respects. It is, therefore, contended that since offers to the Madhya Pradesh oustees affected at 90 mtr. to be settled in Madhya Pradesh has not been made, there cannot be any question of further construction till one year after the resettlement of these PAFs at 90 mtr. 169. The petitioner is also critical of the functioning of the R R Sub-group and it is contended that the said Sub-group has not taken any cognizance of the various issues and problems enumerated by the petitioner. It is submitted that in assuring that the relief and rehabilitation arrangements are being done the said R R Sub-group merely accepts the assertions of the Government rather than verifying the claims independently. There is also a complaint regarding the manner in which the R R Committee takes decision on the spot when it makes frequent visits. It is contended that the decisions which are taken in an effort to solve the grievances of the oustees is done in the most insensitive way. The R R Sub-group, it is contended, is an officia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PAFs in Gujarat and Maharashtra, namely, 97% and 100% respectively. In the case of Madhya Pradesh, the tribals PAFs are only 30% while 70% are non-tribals. 177. The tribals who are affected are in indigent circumstances and who have been deprived of modern fruits of development such as tap water, education, road, electricity, convenient medical facilities etc. The majority of the project affected families are involved in rain-fed agricultural activities for their own sustenance. There is partial employment in forestry sector. Since the area is hilly with difficult terrain, they are wholly dependent on vagaries of monsoon and normally only a single crop is raised by them. Out of the PAFs of Madhya Pradesh who have re-settled in Gujarat, more than 70% are tribal families. Majority of the total tribal PAFs are stated to have already been re-settled in Gujarat after having exercised their option. It is the contention of the State of Gujarat that the tribals in large number have responded positively to the re-settlement package offered by that state. 178. In Madhya Pradesh, the agricultural lands of the tribal villages are affected on an average to the extent of 28% wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nking water well with trough and one tree platform for very 50 families; approach road linking each colony to main road; electrification; water supply, sanitary arrangement etc. The State Governments have liberalised the policies with regard to resettlement and have offered packages more than what was provided for in the Award e.g the Governments of Madhya Pradesh, Maharashtra and Gujarat have extended the R R benefits through their liberalised policies even to the encroachers, landless/ displaced persons, joint holders, Tapu land (Island) holders and major sons (18 years old) of all categories of affected persons. The Government of Maharashtra has decided to allot one hectare of agricultural land free of cost even to unmarried major daughters of all categories of PAFs. 181. In the environmental clearance granted by the Ministry of Environment and Forests vide its letter dated 24th June, 1987, one of the conditions stipulated therein was for information from the project authorities on various action plans including Rehabilitation Master Plan of 1989. 182. It is the contention of the petitioners that the failure to prepare a Master Plan constitutes non-compliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fs have increased to 40227 from 30144 due to addition of 100 more genuine PAFs in Maharashtra. This Master Plan includes village-wise, category-wise PAFs and their preference in R R to settle in home State or in Gujarat. The reason for increase in number of PAFs has been explained in the Master Plan and the reasons given, inter alia, are: (a) After C WC prepared backwater level data, the number of PAFs in Madhya Pradesh (MP) increased by 12000 PAFs as their houses are affected in a 1 in 100 years flood. (b) Government of Gujarat (GOG) included major sons of the dyke villages as PAFs. (c) Cut off date for major sons was extended by GOG and Government of Maharashtra (GOM). (d) PAFs affected in MP, have increased due to delay in publication of Section 4 notification under the Land Acquisition Act. (e) Persons socially or physically cut off due to impounding of water in reservoir, are also considered as PAFs by all the three States. (f) All the three States decided to consider encroachers as PAFs. (g) Major unmarried daughters in Maharashtra are considered as a separate family by Government of Maharashtra, (h) Some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of R R at various elevations of dam viz. EL 90 meter, EL 95 meter, EL 110 meter and FRL 138.68 meter has been made. 187. The measures which have been implemented for sustainable development with regard to preserving the socio-cultural environment of the displaced persons in the States of Maharashtra, Gujarat and Madhya Pradesh are stated to be as follows: Three choices to the people for the selection of relocation sites. Integration of the displaced person with the neighbouring villages by organising medical check-up camps, animal husbandry camps, festivals, eye camps, rural development seminar for village workers etc. Establishment of rehabilitation committees at different levels, Respect of traditional beliefs, rituals and rights at the starting of house construction, the day and time of leaving the old house and village and the day and time of occupying the new house etc. The sacred places at the native villages are being recreated along with their settlements at new sites. Installation of all the religious deities with the due consultation of religious heads. Promotion of cultural milieu viz. Social festi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... welfare programmes, child development schemes etc. had been undertaken. What is important is that primary health centers were established at relocation sites for all necessary health facilities to the PAFs. 191. The submission on behalf of Union of India was that there was a well- established mechanism of Government of India for coordination and monitoring of Re-settlement Rehabilitation (R R) programmes in case of Sardar Sarovar Project. The R R Subgroup and Rehabilitation Committee of Narmada Control Authority are responsible for applying its independent mind on R R. The Sub-group convenes its meeting regularly to monitor and review the progress of R R while Rehabilitation Committee visits the submergence areas/relocation sites to see whether the rehabilitation is taking place physically and to hear the individual problems of the PAPs. The R R group, keeping in view the progress of relief and rehabilitation, has not permitted the height to be raised, until and unless it is satisfied that adequate satisfactory progress has been made with regard to R R. Whereas at an earlier point of time in 1994, the construction schedule had required the minimum block level to be rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s liberal package of the State of Madhya Pradesh. There is no requirement that the liberalisation of the packages by three States should be to the same extent and at the same time, the States cannot be faulted if the package which is offered, though not identical with each other, is more liberal than the one envisaged in the Tribunal's Award. 194. Dealing with the contention of the petitioners that there were large number of persons who were living in the submergence area and were not farmers and would lose their livelihood due to loss of the community and/or loss of the river and were not being properly rehabilitated, Mr. Harish Salve, learned Senior Counsel contended that this averment was not true. According to him, all the families in the 105 hilly tribal villages were agriculturists, cultivating either their own land or Government land and all of whom would be eligible for alternative agricultural land in Gujarat. Only a small number of non-agriculturists, mainly petty shopkeepers were found in these villages of tribal areas. In Gujarat there were 20 such non-agriculturists families out of a total of 4600 affected families and all of these had been re-settled as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not been complied with, the contention of the respondents was that no provision of Tribunal's Award had been shown which caused any such obligation on the Government of Gujarat. What the Award of the Tribunal required is resettlement of the PAFs in Gujarat at places where civic amenities like dispensary, schools, as already been referred to hereinabove, are available. 198. Subsequent to the Tribunal' s Award, on the recommendation of the World Bank, the Government of Gujarat adopted the principle of re-settlement that the oustees shall be relocated as village units, village sections or families in accordance with the outsets preference. The oustees' choice has actively guided the re-settlement process. The requirement in the Tribunal's Award was that the Gujarat shall establish rehabilitation villages in Gujarat in the irrigation command of the Sardar Sarovar Project on the norms mentioned for rehabilitation of the families who were willing to migrate to Gujarat. This provision could not be interpreted to mean that the oustees families should be resettled as a homogeneous group in a village exclusively set up for each such group. The concept of community ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the PAFs in their submerging villages with the rehabilitation packages first provided by the Tribunal's Award and then liberalised by the States, it is obvious that the PAFs had gained substantially after their re-settlement. It is for this reason that in the Action Plan of 1993 of the Government of Madhya Pradesh it was stated before this Court that therefore, the re-settlement and rehabilitation of people whose habitat and environment makes living difficult does not pose any problems and so the rehabilitation and re-settlement does not pose a threat to environment . In the affidavit of Dr. Asha Singh, Additional Director (Socio CP), NVDA, as produced by the Government of Madhya Pradesh in respect of visit to R R sites in Gujarat during 21st to 23rd February, 2000 for ascertaining the status relating to grievances and problems of Madhya Pradesh PAFs resettled in Gujarat, it was, inter alia, mentioned that the PAFs had informed that the land allotted to them is of good quality and they take the crops of Cotton, Jowar and Tuwar. They also stated that their status has improved from the time they had come to Gujarat but they want that water should start flowing in the canals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecome major one year prior to that date who would have become eligible for allotment of land. But in order to benefit those major sons who had attained majority later, the Government of Gujarat made a relaxation so as to cover all those who became major upto 1.1.1987. The Government of Gujarat was under no obligation to do this and would have been quite within its right merely to comply with the provisions of the Tribunal's Award. This being so, relaxation of cut off date so as to give extra benefit to those sons who attained age of majority at a later date, cannot be faulted or criticised. 204. Dealing with the contention of the petitioners that there is a need for a review of the project and that an independent agency should monitor the R R of the oustees and that no construction should be permitted to be undertaken without the clearance of such an authority, the respondents are right in submitting that there is no warrant for such a contention. The Tribunal's Award is final and binding on the States. The machinery of Narmada Control Authority has been envisaged and constituted under the Award itself. It is not possible to accept that Narmada Control Authority is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roject affected families in the affected villages of SSP and ISP in concerned states. 3. To review the R R action plan from time to time in the light of results of the implementation. 4. To review the reports of the agencies entrusted by each of the State in respect of monitoring and evaluation of the progress in the matter of re-settlement and rehabilitation. 5. To monitor and review implementation of re-settlement and rehabilitation programmes pari passu with the raising of the dam height, keeping in view the clearance granted to ISP and SSP from environmental angle by the Government of India and the Ministry of Environment and Forests. 6. To coordinate states/agencies involved in the R R programmes of SSP and ISP. 7. To undertake any or all activities in the matter of re-settlement and rehabilitation pertaining to SSP and ISP. REHABILITATION COMMITTEE 206. This Court vide order dated 9.8.1991 in B.D. Sharma v. Union of India and Ors. directed the formation of a Committee under the chairmanship of the Secretary, Ministry of Social Justice Empowerment, Government of India to visit the submergence areas/re-settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r re-settlement and rehabilitation of the oustees from the States of Madhya Pradesh and Maharashtra receive all the benefits and amenities in accordance with the Award and the various Government resolutions made from time to time; C) ensure that Gujarat oustees re-settled in Gujarat have received all the benefits and amenities due to them. 210. The Gujarat Rehabilitation Authority has installed a permanent in-house Grievances Redressal Cell (GRC) within Sardar Sarovar Punarvasavat Agency. The Grievances Redressal Cell deals with the grievances of the PAFs and the grievances redressal is undertaken by it in the following three ways. i) Grievances Redressal Cell deals grievances in the regular course on the basis of applications i.e. by holding enquiries and implementing decisions taken pursuant thereto. ii) Grievances redressal on the spot though mechanism of Tatkal Fariyad Nivaran Samiti. iii) Grievances redressal under the mechanism of Single Window Clearance System. 211. Grievances Redressal Authority has surveyed sites in which PAFs have been resettled and has submitted reports to this Court from time to time which disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; iv) Issue relating to tapu land; v) Development of Kevadia as a tourist center etc. 216. In Maharashtra, a local committee was constituted comprising of Additional Collector (SS), Divisional Forest Officer, Resettlement Officer and two representatives of the oustees nominated by the local Panchayat Samities from among the elected members of the village panchayats in the project affected villages/taluka. This Committee is required to examine the claims of the PAFs and give directions within a time frame and an appeal from its decision lies to the Commissioner. In addition thereto, vide notification dated 17th April, 2000 the Government of Maharashtra has set up a Grievances Redressal Authority in lines established by the State of Gujarat and Mr. Justice S.P. Kurdukar, retired Judge of this Court, has been appointed as its Chairman. This Authority is expected to be analogous to the Grievances Redressal Authority of Gujarat. 217. In Madhya Pradesh, the grievances of the PAFs have first to be made by a claim which will be verified by the patwari and then scrutinised by the Tehsildar. PAFs may file an appeal against the decision of R R official be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further more the report showed that in the submergence villages, the tribals mostly relied on traditional healers for their ailments. Now the current scenario is that at R R sites, health centers and sub-centers have been established. 222. It is thus seen that there is in place an elaborate network of authorities which have to see to the execution and implementation of the project in terms of the Award. All aspects of the project are supervised and there is a Review Committee which can review any decision of the Narmada Control Authority and each of the three rehabilitating States have set up an independent Grievances Redressal Authority to take care that the relief and rehabilitation measures are properly implemented and the grievances, if any, of the oustees are redressed. 223. On 9th May, 2000, this Court directed the State Governments of Gujarat, Madhya Pradesh and Maharashtra to file affidavits disclosing the latest status of resettlement and rehabilitation work for the existing as well as prospective oustees likely to be affected by raising the height of the dam. 224. Pursuant to the said direction affidavits on behalf of the three States have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 229. With regard to the status of PAFs at RL 110 mtr. all the PAFs of Gujarat have been re-settled and 2761 PAFs [2642 of Madhya Pradesh and 119 of Maharashtra] remain to be re-settled in Gujarat and R R package will be offered to them before November 2000. The land which is required to be allotted to them is stated to be around 6074 hectares and the State of Gujarat has in its possession 8146 hectares. The civic amenities in 40 new R R sites are scheduled to be completed by December 2000 and these sites would serve to accommodate not only PAFs between RL 95 mtr. and RL 110 mtr. but would also serve to accommodate PAFs from submergence villages which would be getting affected at levels above RL 110 mtr. The Action Plan giving the village-wise details is said to have been sent to NCA in June 2000 for its approval. 230. According to the said affidavit the balance number of PAFs remaining to be resettled at Gujarat at FRL 138.68 mtr. is 10765. Taking into account that an additional area of 10% towards house plot and common civic amenities would be required in addition to the allotment of minimum 2 hectares of agricultural land, the total land requirement per PAF would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as follows: i. Since at present GOG has sufficient land to meet R R requirement to accommodate PAFs upto RL 110 m, it would not be necessary to acquire further land immediately, especially when the additional land would be required only after the R R Sub-group and Environment Sub-group give approval for RL 95 m. to RL 110 m. after examining the preparedness at different stages. This would ensure that public money is not unnecessarily blocked for a long period. ii. By acquiring land much before it would be required, problems of illegal trespass are likely to arise. iii. The excess land would, by and large, remain fallow and no agricultural production would take place, iv. If the land remains fallow for long the overall productivity of the land would be adversely affected. v. All the time of allotment, the State Government would again have to spend a sizeable amount to remove weeds, bushes, small trees etc. vi. The State Government would have to incur a sizeable amount to prevent tampering with the boundary marks, prevent neighbouring farmers removing the top soil or from diverting natural drains passing through their fields to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess of development and these Samitis are vested with the responsibility to sort out minor problems. With a view to ensure more effective participation in Panchayat affairs and better integration of PAPs an Order under Section 98 of the Gujarat Panchayats Act, 1993 has been issued by the Government of Gujarat providing that there shall be upto two invitees from amongst the PAPs depending upon the number of PAPs at the sites in the village Panchayat within whose jurisdiction the R R are situated. Pursuant to this 196 PAPs have been inducted as invitees to then Village Panchayats. The salient features of the rehabilitation programme of the PAPs are as follows: PAFs are given productive assets in kind (7000/PAFs) to purchase bullocks, bullock carts, oil engines etc. PAFs are given subsistence allowance (₹ 4500/PAF) in cash to meet contingency needs in the initial period. Vocational training is provided to PAFs for improving their income levels, priority being given to those dependents who are not entitled to be declared as PAFs on their own rights. Tool kits are supplied either free or with 50% subsidy. NGOs are actively involved in all the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is completed and patients are cured. Under preventive health care, health education material is distributed and Health and Cleanliness Shapers are organized. A special survey covering physically handicapped and mentally retarded persons has been organized and social welfare benefits given. Other National Health Programmes (maternal child health, immunization, school health check up, family welfare etc.) are regularly conducted. 237. An Agricultural Cell has been set up in the SSPA which assists the Grievances Redressal Machinery in resolving the problem relating to the agricultural land. The salient features of this cell are as follows: The Agriculture Cell is involved in purchasing land, supervision of land improvement works and processing land related grievances of the PAFs. Agriculture training classes are organized for PAFs in the training institutes of the State Government. Assistance is given for availing crop-loan credit from banks and extension education is imparted in matters of marketing, cropping pattern, use of improved seeds, insecticides and latest equipments. Afforestation was carried out in 33 R R sites ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpectancy, literacy, customs, culture, social integration etc. Staff is being trained to sensitize them especially with regard to rehabilitation and second-generation issues. Senior level officers have been sent for R R training at Administrative Staff College of India, Hyderabad. 240. From the aforesaid affidavit it is more than clear that the GRA, of which Mr. Justice P.D. Desai, is the Chairman, has seen to the establishment of different cells and have taken innovative steps with a view to making R R effective and meaningful. The steps which are being taken and the assistance given is much more than what is required under the Tribunal's Award. There now seems to be a commitment on the part of the Government of Gujarat to see that there is no laxity in the R R of the PAPs. It appears that the State of Gujarat has realised that without effective R R facilities no further construction of the dam would be permitted by the NCA and under the guidance and directions of the GRA meaningful steps are being undertaken in this behalf. In this connection we may take note of the fact that along with the said affidavit Sh. V.K. Babbar, again under the directions of the GR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the undertaking of Sh. V.K. Babbar, in these undertakings of the Collectors, it is stated that necessary mutation entries regarding entering the name of SSPA/SSNNL in the village records of right in respect of the land in possession for R R or PAFs likely to be resettled in Gujarat have been made but the certification of these entries will be completed and the matter reported to the GRA before 31 st August, 2000. If this is not done the land is to be deleted from the inventory of land available for R R. Necessary mutation entries in the village records or rights regarding removal of encumbrances of original landholders shall also be completed by that date. 242. From what is noticed hereinabove, this Court is satisfied that more than adequate steps are being taken by the State of Gujarat not only to implement the Award of the Tribunal to the extent it grants relief to the oustees but the effort is to substantially improve thereon and, therefore, continued monitoring by this Court may not be necessary. 243. On behalf of the State of Madhya Pradesh, in response to this Court's order dated 9th May, 2000, an affidavit of Sh. H.N. Tiwari, Director (TW), Narmada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfluence of anti dam activists, though they have been given notices containing offer of the land and house plots by the Government of Gujarat. In addition thereto 323 PAFs who were earlier resisting have now been persuaded and arrangements for selection of land for them in Gujarat has been initiated. 246. With regard to the R R status of PAFs to be affected at EL 95 mtr. it is, inter alia, stated that those losing 25 per cent of their holdings are entitled to be allotted cultivable land and notices were given to them to identify the land which can be allotted. In the said notice it was stated that the development process will be undertaken with regard to the said land only after it is selected by the PAFs. There is also a mention in the affidavit filed in the name of Narmada Bachao Andolan, the petitioner herein, not allowing the State Government to conduct survey for demarcation of the submergence area and identification of the PAFs to be affected at EL 132.86 mtrs. [436 ft.]. Six out of twenty five relocation sites required to be developed have been fully developed. 247. Affidavit on behalf of the State of Madhya Pradesh draws a picture of rehabilitation which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to a Tribunal. The Award of the Tribunal being binding the States concerned are duty bound to comply with the terms thereof. 248. On behalf of the State of Maharashtra affidavit in response to this Court's order dated 9th May, 2000, the position regarding the availability of land for distribution to the PAFs was stated to be as follows: Image It is further stated in this affidavit that out of 795.62 hectares of forest land which was reported to be uncultivable the State has undertaken a survey for ascertaining whether any of these lands can be made available for cultivation and distribution by resorting to measures like bunding, terracing and levelling. It is estimated that 30 to 40 hectares of land would become available. In addition thereto the affidavit states that the Government of Maharashtra has decided to purchase private land in nearby villages for re-settlement of PAFs and further that GRA has been established and Justice S.P. Kurdukar. a retired judge of this Court has been appointed as its Chairman. It is categorically stated in this affidavit that the State Government would be in a position to make these land available to all the conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area in question is that there is deficient rainfall and small scale water harvesting projects may not be adequate. During the non rainy days, one of the essential ingredients of water harvesting is the storing of water. It will not be wrong to say that the biggest dams to the smallest percolating tanks meant to tap the rain water are nothing but water harvesting structures to function by receiving water from the common rainfall. 252. Dam serves a number of purposes. It stores water, generates electricity and releases water throughout the year and at times of scarcity. Its storage capacity is meant to control floods and the canal system which emanates therefrom is meant to convey and provide water for drinking, agriculture and industry. In addition thereto, it can also be a source of generating hydropower. Dam has, therefore, necessarily to be regarded as an infrastructure project. 253. There are three stages with regard to the undertaking of an infrastructure project. One is conception or planning, second is decision to undertake the project and the third is the execution of the project. The conception and the decision to undertake a project is to be regarded as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Latches is one of them. 256. Public Interest Litigation [P1L] was an innovation essentially to safeguard and protect the human rights of those people who were unable to protect themselves. With the passage of time the PIL jurisdiction has been ballooning so as to encompass within its ambit subjects such as probity in public life, granting of largess in the form of licences, protecting environment and the like. But the balloon should not be inflated so much that it bursts. Public Interest Litigation should not be allowed to degenerate to becoming Publicity Interest Litigation or Private Inquisitiveness Litigation. 257. While exercising jurisdiction in PIL cases Court has not forsaken its duty and role as a Court of law dispensing justice in accordance with law. It is only where there has been a failure on the part of any authority in acting according to law or in non-action or acting in violation of the law that the Court has stepped in. No directions are issued which are in conflict with any legal provisions. Directions have, in appropriate cases, been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view against the undertaking of the project, which view may have been considered by the Government, is possible. When two or more options or views are possible and after considering them the Government takes a policy decision it is then not the function of the Court to go into the matter afresh and, in a way, sit in appeal over such a policy decision. 261. What the petitioner wants the Court to do in this case is precisely that. The facts enumerated hereinabove clearly indicate that the Central Government had taken a decision to construct the Dam as that was the only solution available to it for providing water to water scare areas. It was known at that time that people will be displaced and will have to be rehabilitated. There is no material to enable this Court to come to the conclusion that the decision was mala fide. A hard decision need not necessarily be a bad decision. 262. Furthermore environment concern has not only to be of the area which is going to be submerged and its surrounding area. The impact on environment should be seen in relation to the project as a whole. While an area of land will submerge but the construction of the Dam will result in multi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the shortage of water has been there since the time immemorial. 266. In the case of projects of national importance where Union of India and/or more than one State(s) are involved and the project would benefit a large section of the society and there is evidence to show that the said project had been contemplated and considered over a period of time at the highest level of the States and the Union of India and more so when the project is evaluated and approval granted by the Planning Commission, then there should be no occasion for any Court carrying out any review of the same or directing its review by any outside or independent agency or body. In a democratic set up, it is for the elected Government to decide what project should be undertaken for the benefit of the people. Once such a decision had been taken that unless and until it can be proved or shown that there is a blatant illegality in the undertaking of the project or in its execution, the Court ought not to interfere with the execution of the project. 267. Displacement of people living on the proposed project sites and the areas to be submerged is an important issue. Most of the hydrology proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether the loss of forest due to river valley project because of submergence is negligible, compared to deforestation due to other reasons like cutting of trees for fuel, it is true that large dams cause submergence leading to loss of forest areas. But it cannot be ignored and it is important to note that these large dams also cause conversion of waste land into agricultural land and making the area greener. Large dams can also become instruments in improving the environment, as has been the case in the Western Rajasthan, which transformed into a green area because of Indira Gandhi Canal, which draws water from Bhakhra Nangal Dam. This project not only allows the farmers to grow crops in deserts but also checks the spread of Thar desert in adjoining areas of Punjab and Haryana. 269. Environmental and ecological consideration must, of course, be given due consideration but with proper channellisation of developmental activities ecology and environment can be enhanced. For example, Periyar Dam Reservoir has become an elephant sanctuary with thick green forests all round while at the same time wiped out famines that used to haunt the district of Madurai in Tamil Nadu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity. This certainly cannot be permitted. Nor is it desirable in the national interest that where fundamental right to life of the people who continue to suffer due to shortage of water to such an extent that even the drinking water becomes scarce, non-cooperation of a State results in the stagnation of the project. 272. The clamour for the early completion of the project and for the water to flow in the canal is not by Gujarat but is also raised by Rajasthan. 273. As per Clause 3 of the final decision of the Tribunal published in the Gazette notification of India dated 12th December, 1979, the State of Rajasthan has been allocated 0.5 MAF of Narmada water in national interest from Sardar Sarovar Dam. This was allocated to the State of Rajasthan to utilise the same for irrigation and drinking purposes in the arid and drought-prone areas of Jalore and Barmer districts of Rajasthan situated on the international border with Pakistan, which have no other available source of water. 274. Water is the basic need for the survival of human beings and is part of right of life and human rights as enshrined in Article 21 of the Constitution of India and can be serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneration. In India, the share of hydel power in the total power generated was as high as 50% in the year 1962-63 but the share of hydel power started declining rapidly after 1980. There is more reliance now on thermal power projects. But these thermal power projects use fossil fuels, which are not only depleting fast but also contribute towards environmental pollution. Global warming due to the greenhouse effect has become a major cause of concern. One of the various factors responsible for this is the burning of fossil fuel in thermal power plants. There is, therefore, international concern for reduction of greenhouse gases which is shared by the World Bank resulting in the restriction of sanction of funds for thermal power projects. On the other hand, the hydel power's contribution in the greenhouse effect is negligible and it can be termed ecology friendly. Not only this but the cost of generation of electricity in hydel projects is significantly less. The Award of the Tribunal has taken all these factors into consideration while determining the height of the dam at 455 ft. Giving the option of generating eco-friendly electricity and substituting it by thermal power may not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p will give clearance of further construction after consulting the three Grievances Redressal Authorities. (3) The Environment Sub-group under the Secretary, Ministry of Environment Forests, Government of India will consider and give, at each stage of the construction of the dam, environment clearance before further construction beyond 90 meters can be undertaken. (4) The permission to raise the dam height beyond 90 meters will be given by the Narmada Control Authority, from time to time, after it obtains the above-mentioned clearances from the Relief and Rehabilitation Sub-group and the Environment Sub-group. (5) The reports of the Grievances Redressal Authorities, and of Madhya Pradesh in particular, shows that there is a considerable slackness in the work of identification of land, acquisition of suitable land and the consequent steps necessary to be taken to rehabilitate the project oustees. We direct the States of Madhya Pradesh, Maharashtra and Gujarat to implement the Award and give relief and rehabilitation to the oustees in terms of the packages offered by them and these States shall comply with any direction in this regard which is given eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Mr. Justice B.N. Kirpal. Respectfully, I regret my inability to agree therewith. 283. I do not set out the facts here: they are detailed in Brother Kirpal' s judgment. 284. I take the view that the Sardar Sarovar Project does not require to be re-examined, having regard to its cost effectiveness or otherwise, and that the Seism city aspect of the Project has been sufficiently examined and no further consideration thereof is called for. I do not accept the submission on behalf of the petitioner that those ousted by reason of the canals emanating from the reservoir in the Project must have the same relief and rehabilitation benefits as those ousted on account of the reservoir itself; this is for the reason that the two fall in different classes. 285. 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 Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , like wildlife, flora and genetic pool, which demanded exclusive earmarking of a given region for their specific use, the majority of cases did not call for a choice between development projects and preservation of the natural environment; but in all cases there was great need to consider the environmental aspects along with dither feasibility considerations. It was imperative to analyse whether the adoption of environmental measures was going to result in any short or long term social or economic benefits A careful study of the direct costs involved, which would be caused by the absence of environmental imitative measures on river valley projects, was an eye opener. These included effects on health, plant genetic resources, aquatic resources, water-logging and salinity of irrigated soils, deforestation and soil conservation. During the planning and feasibility assessment stages, several factors had to be taken into account, including short and long term impact on population and human settlements in the inundated and watershed areas, impact on flora and fauna (wildlife) in the vicinity, impact on wildlife, including birds, impact on national parks and sanctuaries, on sites and mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f examination and clearance but have been finding the material submitted inadequate and unsatisfactory .... . While the State Governments had done their best to meet the requirements, some of the information and action will necessarily take time and will have to proceed pari passu with the implementation of the project, which in any case will take a decade or more to complete. The Note stated that the Ministry of Water Resources shared the concerns and anxieties of the Ministry of Environment and Forests, as also the sense of urgency of the Governments of Gujarat and Madhya Pradesh, who felt that it was urgently necessary to take a decision in regard to the clearance. Under the sub-heading, Should the projects be taken up at all? , the Note stated that the abandonment of the projects would mean the abandonment of the generation of 2450 MW of power and of the possibilities of economic development which that quantum of power would bring, as also increased agricultural production resulting from the creation of an irrigation potential of 2.041 million hectares. No effective alternatives to the two projects were available. Reference to the adverse environmental impact of the project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 as yet in the early and preliminary stages. What was then set out was an enumeration of what remained to be done. The survey of flora, to assess if there were any rare or threatened plant species, had been assigned to the Botanical Survey of India, which was expected to be completed in a period of two years. The wildlife survey undertaken by the Zoological Survey of India was also likely to take two 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 relocation. 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 onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal aspects and completing the formulation of the necessary operational plans may in fact prove to be a self defeating exercise. On the other hand, if the project decisions are taken now, subject to firm conditions and stipulations regarding the environmental aspects, there is greater likelihood of these conditions being met....A possible argument against the immediate clearance of the projects could be that once the projects are cleared, the management would concentrate on the engineering and construction aspects and would not pay adequate attention to the environmental and human aspects. There seems to be no need for such apprehensions. It should be entirely possible to give a conditional clearance and ensure that the conditions are properly met through a process of clear assignment of responsibility and frequent monitoring....Moreover, even assuming that the postponement of a decision by three years will improve the availability of detailed information and the site 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion; and (v) Flora and Fauna. Considering the magnitude of rehabilitation, involving a large percentage of tribals, loss of extensive forest area rich in biological diversity, enormous environmental cost of the project and considering the fact that the basic data on vital aspects was still not available there could be but one conclusion, that the project(s) are not ready for approval. There were two options in regard to the clearance. As a number of studies, censuses, field surveys, mapping of areas etc. was likely to take between two and three years, one possibility was that all these should be completed; detailed operational plans for catchment treatment, compensatory-afforestation, rehabilitation and re-settlement of affected population and remedial or relocation 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 stipulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity. A detailed survey of the Command area was required on priority to prepare a package of the nature and quantity of development and drainage and on farm works to fully utilise the irrigation potential. An action programme was yet to be detailed. The Ministry of Water Resources was preparing an Evaluation Report covering the extent of likely water-logging and salinity problems and the effectiveness of measures proposed or likely to be proposed to combat these problems as per the action programme to be formulated . In so far as compensatory afforestation was concerned, the Project authorities had not been able to identify non-forest land for compensatory afforestation and had proposed to undertake afforestation on double the extent for degraded forest 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the case of NSP is such that it gives just an outline of the Intention Plan. The fact that this Intention Plan will be converted to an Action Plan and there be effectively implemented has to be taken on trust. In case of Sardar Sarovar Project (SSP), readiness to execute is reasonably good except on the issue of rehabilitation of oustees specially from M.P. and Maharashtra. (4) Holding up of the projects even for the next few months is not likely to improve the level of preparedness on most of the environmental aspects, specially in the case of NSP. In the meanwhile, further studies will not perhaps pick up speed and thus at no time will the requisite information be fully available. (5) A large amount of money hs 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 while at the same time ensuring optimal utilisation of water resources. The choice is difficult but a choice has to be made. (Emphasis supplied) 290. A Note was prepared on 15th January, 1987 in the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vironmental angle was issued by the Ministry of Environment and Forests on 24th June, 1987. 292. The environmental sanction to the Project reads thus: Office Memorandum Subject: Approval of Narmada Sagar Project, Madhya Pradesh and Sarovar Project, Gujarat from environmental angle. 1. The Narmada Sagar Project, Madhya Pradesh and Sardar Sarovar Project, Gujarat have been referred to this Department for environmental clearance. 2. On the basis of examination of details of these projects by the Environmental Appraisal Committee for River Valley Projects and discussions with the Central and State authorities, the following details were sought from the project authorities: 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. Seism city; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary for generating the requisite data for the impact assessment. The cost of the proposed remedial and mitigated measures had to be included in the project cost. The necessary data that was required to be collected for the purposes of the assessment of a project's environmental impact was set out in Guidelines for the purpose issued by the Ministry of Environment and Forests of the Union Government (which have been referred to above). 294. The contemporaneous Notes prepared by the Ministry of Water Resources and the Ministry of Environment and Forests, also referred to above, leave no manner of doubt that the requisite data for assessment of the environmental impact of the Project was not available when the environmental clearance thereof was granted. In the words of one of the Notes, While some plans have been made, studies undertaken and action initiated, it will be clear from the preceding paragraphs that 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 prelimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea treatment programme was not only to be drawn but also to be completed: so also the rehabilitation plans. If, as the Project authorities interpreted this clause, only the drawing of the catchment area treatment programme and the rehabilitation plans were to be completed ahead of reservoir filling, the clause would have read: The catchment area treatment programme and the rehabilitation plans shall be drawn ahead of reservoir filling . What the clause as drawn required was that the catchment area treatment programme and the rehabilitation plans should be drawn in such a manner that the catchment area treatment and the rehabilitation works would be completed ahead of impoundment in the reservoir. This, plainly, was intended to off set, so far as was possible in the circumstances, the adverse effect of the impoundment of water in the reservoir upon the catchment and those who were required to be settled elsewhere. In fact, the impoundment began much before. 299. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction of the dam and other work on the Project has already commenced, this factor must play a part in their deciding whether or not environmental clearance should be accorded. Until environmental clearance to the Project is accorded by them, further construction work on the dam shall cease. 302. The Union of India has issued a notification on 27th January, 1994 called the Environmental Impact Assessment Notification 1994 (and amended it on 4th May, 1994). Its terms are not applicable to the present proceedings, but its provisions are helpful in so far as they prescribe who is to assess the environmental impact assessment reports and environment management plans that are submitted by applicants for new projects, including hydro-electric 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Authorities and it will be the responsibility of these Authorities to ensure that those ousted by reason of the Project are given relief and rehabilitation in due measure. 305. The State are lagging behind in the matter of the identification and acquisition of land upon which the oustees are to be resettled. Having regard to the experience of the past, only the Grievance Redressal Authorities can be trusted by this Court to ensure that the States are in possession of vacant lands suitable for the rehabilitation of the oustees. During the time that it takes to assess the environmental impact of the Project, the States must take steps to obtain, by acquisition or otherwise, vacant possession of suitable lands upon which the oustees can be rehabilitated. When the Project obtains environmental clearance, assuming that it does, each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra must certify, after inspection, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present level have already been satisfactorily rehabilitated and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Experts shall assess the environmental impact of the Project and decide if environmental clearance to the Project can be given and, if it can, what environmental safeguard measures must be adopted, and their cost. (4) In so doing, the Committee of Experts shall take into consideration the fact that the construction of the dam and other work on the Project has already commenced. (5) Until environmental clearance to the Project is accorded by the Committee of Experts as aforestated, further construction work on the dam shall cease. (6) The Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall ensure that those ousted by reason of the Project are given relief and rehabilitation in due measure. (7) When the Project obtains environmental clearance, assuming that it does, each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall, after inspection, certify, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present level have already been satisfactorily rehabili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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