TMI Blog2003 (9) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... dated July 19, 1990 and want us to halt the Project till the same is complied with. Lastly, they want us to look into the Rehabilitation aspects. Subsequent to the filing of this petition few others joined as interveners. String of Affidavits, counter-affidavits and other documents disclosing the minutest details have been presented. Oral submissions on both sides have been addressed at length. Before adverting to the contentions of safety, environmental clearance and rehabilitation, it is necessary to draw a demarcating line between the realm of policy and the permissible areas for judicial interference in the context of present case. For this, a brief factual survey is warranted. This is also necessary to appreciate the broader issues advanced before us. Investigation for the purpose of construction of a dam at Tehri for hydel power generation was commenced as early as in 1961. In the year 1972, the Planning Commission envisaged a cost of ₹ 197.92 crores and in 1976, administrative clearance to the Project was given by the Government of U.P. In March 1980, a direction was issued by the then Prime Minister for an in- depth review of the whole project. Consequently, an Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment Action Plans for consideration and assessment by MoEF. In February 1990, the Environmental Appraisal Committee, MoEF concluded that the Tehri Dam Project, as proposed, should not be taken up as it does not merit environmental clearance. Subsequently, On July 19, 1990, conditional clearance to the project was given by MoEF. It was specifically provided that completion of status, formulation of action plans and their implementation will be scheduled in such a manner that their execution is pari-passu with the construction, failing which the engineering works would be brought to a halt and this condition will be enforced among others under the provisions of the Environment Protection Act, 1986. The petitioners raised the question before us that when a decision had been taken in 1990 to abandon the project as to how clearance could be given on July 19, 1990? Again they pointed out that on 21.10.1994 serious consequences of the implementation lagging behind was taken note of but the project was allowed to continue. From the narration of various events set out earlier, it is clear that even by August 1986 an expenditure of ₹ 206 crores had been incurred for the construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has to play is to ensure that the system works in the manner it was envisaged. It is made clear in that decision that the questions whether to have an infrastructual project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. However, a note of caution was struck that the Courts have a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights as guaranteed under the Constitution are not transgressed upon except to the extent permissible under the Constitution. When a law has been enacted in relation to the protection of environment and such law is being given effect to and there is no challenge to such law, the duty of the Courts would be to see that the Government and other respondents act in accordance with law and there is no other obligation for the Court to examine further in the matter. We respectfully agree with the view expressed in the Sardar Sarovar project's case and apply the same to the facts arising in this, case. Further, it was noticed in the aforesaid decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities to conduct Three-Dimensional (3D) Non- Linear Test to evaluate the earthquake susceptibility of the dam against the Maximum Credible Earthquake. They also insist upon the computer simulated Dam Break Analysis to estimate the magnitude of damages in the unexpected eventuality of any dam failure. The respondents submitted that they explored the possibility of such tests and arrived at a conclusion that such tests are neither practical nor necessary in the present case. The respondents added that the studies related to site specific assessment of seismicity, testing of fill materials for determining dynamic properties and detailed dynamic analysis, were carried out independently by two agencies; that they are the Department of Earthquake Engineering, University of Roorkee, and Hydro Project Institute (HPI), Moscow; that the result of their studies indicated that earth and rockfill type dams as chosen for Tehri are the safest man-made structures in earthquake prone zones due to their large inertia, high damping and high flexibility; that the dam fill material is being compacted to concrete like density, which provides high strength while retaining the flexibility; that re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be safe. Even though the design of the dam had been earlier independently checked by two separate agencies, it was again examined and it was found that the project appears to be safe. Subsequently, during the pendency of this petition, in order to allay fears expressed in certain quarters, the Government of India in June 1996 appointed a Group of Five Experts to examine the relevant scientific and technical reports and other information relating to safety of the Tehri Dam and make its recommendations to the Government for consideration. In the selection of the experts Shri Sandra Bahuguna, who has been spearheading the movement against the construction of the Tehri Dam, was also associated and he recommended the inclusion of two engineers apart from the three seismologist. Thus the names of all the five Experts were suggested by Shri Bahuguna. The Group of Five Experts, after a detailed discussion on the various issues related to the seismic safety of the Tehri Dam, concluded that a comprehensive appraisal of the seismic safety of the dam required completion of the two key exercises by employing recent advances in conceptual and computational capabilities and they are, (i) q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odhi Sangarsh Samiti vs. State of UP, [1992] Supp. 1 SCC 44, the grant of clearance on July 19, 1990 was called in question before this Court in a writ petition and this Court examined the safety aspects which were brought to the notice of the court and it was held that the clearance given was not as a result of non-application of mind by the Government on safety and environmental aspects and it was particularly examined with reference to the fact that site of the project is being within the earthquake prone zone and this Court, after specific examination of the record observed that the project was considered by the Environmental Appraisal Committee of MoEF, Committee of Secretaries, High Level Committee comprising experts of scientific and specialised organisations and also by a renowned expert of international repute and, therefore, the Government considered the question of safety of the project from various details more than once and on being satisfied with the reports of the experts gave clearance to the project. In those circumstances, this Court thought fit not to interfere with the same. This Court dealt with the safety concerns and held that : ...In our opinion the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision, then it is not appropriate for the Court to interfere. Such matters must be left to the mature wisdom of the Government or the implementing agency. It is their forte. In such cases, if the situation demands, the Courts should take only a detached decision based on the pattern of the well-settled principles of administrative law. If any such decision is based on irrelevant consideration or non-consideration of material or is thoroughly arbitrary, then the Court will get in the way. Here the only point to consider is whether the decision-making agency took a well-informed decision or not. If the answer is 'yes', then there is no need to interfere. The consideration in such cases is in the process of decision and not in its merits. In this context, reliance is sought to be placed on the decision of this Court in A.P. Pollution Control Board v. Prof. M. V. Nayudu (Retd.) Ors., [1999] 2 SCC 718. In that decision, this Court viewed that in scientific matters of complex nature resulting in uncertainty, reference has to be made to a specialised technical/expert body and not merely decide the matter on well known principles of administrative law of court not re- exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation. In the present case, we are not concerned with the polluting industry which is being established. What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry. The construction of a dam undoubtedly would result in a change of environment but it will not be correct to presume that the construction of a large dam like the Sardar Sarovar will result in an ecological disaster. India has an experience of over 40 years in the construction of dams. The experience does not show that construction of a large dam is not cost-effective or leads to ecological or environmental degradation. On the contrary there has been ecological upgradation with the construction of large dams. What is the impact on environment with the construction of a dam is well known in India and, therefore, the decision in A.P. Pollution Control Board case will have no application in the present case. [at pp. 727-728] Aspects Related to Conditional Clearance Before adverting to othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chieve the goal of wholesome development. Such works could very well be treated as integral component for development. Therefore, the adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to 'sustainable development' cannot be singled out. Therefore, the concept of 'sustainable development' is to be treated an integral part of 'life' under Article 21. The weighty concepts like inter-generational equity State of Himachal Pradesh v. Ganesh Wood Products, [1995] 6 SCC 363, public trust doctrine M C Mehta v. Kamal Nath, [1997] 1 SCC 388 and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development. To ensure sustainable development is one of the goals of Environmental Protection Act, 1986 (for short 'the Act') and this is quiet necessary to guarantee 'right to life' under Article 21. If the Act is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust get the safety aspects and the design of the Dam approved by the High Level Expert Committee constituted for the purpose. (B) Comprehensive Environmental Management Plans must be formulated to the satisfaction of, and got approved from, the Ministry of Environment Forests in a time bound manner as outlined below: 3.1 Catchment Area Treatment Obligations of Tehri Hydro Development Corporation (THDC) (a) The THDC will, as per the recommendations of the Remote Sensing Applications Centre, UP, identify the critically degraded areas conforming to the very high and high erodability classification and prepare action plans by 31.12.90 for the treatment of these areas in consultation with the Government of Uttar Pradesh. (b) The action plans prepared will ensure that the catchment area treatment is completed before 31.12.1995 on the basis of detailed annual action plans. (c) The THDC will put at the disposal of the Government of Uttar Pradesh all the requisite resources annually to implement the action plans. Obligation of the Government of U.P. The Government of U.P. will cooperate in the preparation of comprehensive action plans for catchment area treatment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Environment (Protection) Act, 1986. In a letter sent on 21.10.1994 by the Additional Director, MoEF, it is noticed that even though the Tehri Dam Project was accorded environmental clearance in July, 1990, the status of implementation of various safeguard measures is lagging far behind. A communication had been sent as early as in February, 1990 containing the report of the Environmental Appraisal Committee, Ministry of Environment and Forests, Government of India wherein it is stated as under :- ...after a careful examination of the information and data available, the Committee has come to the unanimous conclusion that the Tehri Dam Project, as proposed, should not be taken up as it does not merit environmental clearance. It was also mentioned in another letter dated 19.7.1990 that conditional clearance to the project was given by the Ministry of Environment and Forests. It was specifically provided that completion of status, formulation of action plans and their implementation will be scheduled in such a way that their execution is pari passu failing which the engineering work would be brought to a halt. This condition will be enforced among others under the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding setting up of the Authority. Legislation, however, is yet to be brought out. The main conditions that the Ministry of Environment fixes at the time of granting clearance to the Tehri Dam project is to comply with the conditions attached to the following aspects: 1. Catchment Area Treatment 2. Command Area Development 3. Flora and Fauna 4. Water Quality Maintenance 5. Bhagirathi Basin Management Authority 6. Disaster Management 7. Rehabilitation On 17.9.1996, the Government of India, on demand for further examination of certain rehabilitation and environmental issues relating to the Tehri Project, appointed a Committee headed by Prof. C H Hanumantha Rao. This Committee basically looked into the Rehabilitation Policy, its implementation and the implementation of various conditions for environmental clearance. Later, Hanumantha Rao Committee submitted it Report (hereinafter, HRC Report) in October 1997. Government of India accepted certain vital suggestions in the HRC Report. The petitioners allege that even the HRC Report, as accepted by the Government, was not complied with. They argued, based on the clearance certificate that the conditions have to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st respectively as in March 1992. It is, therefore, contended that the conditional clearance given to the respondents has not lapsed. Even the Government proceeded on the basis that the project was still a going project and, therefore, appointed two expert committees even as late as in 1996 to examine - one on the safety aspect and the other on environment and rehabilitation aspects. As late as on 14.3.2002 an affidavit has been filed on behalf of the Government of India. It is pointed out therein that the MoEF while according environmental clearance to the Project had laid down certain conditions in their letter dated July 19, 1990. These conditions had, inter alia, enumerated certain studies which were to be carried out and based on their findings, action plans had to be drawn up for execution pari-passu with the construction of the project. It is also pointed out that all the required studies had been completed and their reports submitted to the MoEF and these studies indicated that no environmental damage would be caused by the construction of the project which cannot be remedied by adoption of appropriate measures and for this purpose, action plans wherever called for have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tehri Project is 6921.25-sq. km. This area is divided into 16 sub-watersheds and 149 micro watersheds. Of which, 3557.99 sq. km. are estimated to be snow bound, rocky, precipitous, alpine blanks or within the submergence area. Main purposes of catchment area treatment are to regulate the flow of water, prevention of soil erosion, to minimize the negative impact of the project itself on the catchment and to protect and regenerate vegetation in the catchment area and the water resources. Upon the acceptance of HRC Report, the Union Government entrusts the responsibility of treatment of degraded areas of 'high' and 'very high' erodability to the THDC. At the same time the State Government has to formulate separate plans for the treatment of 'medium' and 'low' categories of erosion. On principle the Union accepts to treat the entire degraded catchment of all categories. The treatment of entire catchment of high and very high erodability classification has to be completed part passu with the construction of the project. It is submitted on behalf of the Respondents that an area of 37589 ha.-- has been treated till December 2001 and soil conservation me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very high erodability classification based on the earlier CAT plan formulated by the State Forest Department under which an area of 22,746 hectares was treated upto March 1994. Subsequently, it was decided to treat only the direct draining catchment of high and very high erosion class based on the satellite images. Accordingly, a CAT Plan, 1994 was formulated and submitted to MoEF for treatment of an additional catchment area of 13500 hectares in addition to area earlier treated, i.e., a total area of [22746+13500] equivalent to 36246 hectares. MoEF, however, directed in July 1998 that 52204 hectares of high and very high erosion classification, in the entire catchment, was to be treated at the cost of Tehri Project. This requirement was incorporated by the Government in its decisions on the HRC recommendations. As decided by the Government, the project is now doing CAT in the entire degraded catchment in area of high and very high erosion class after excluding the areas already treated. An area of 37591.4 hectares has already been treated till December 2001. The soil conservation measures are being implemented as part of the CAT Programme for upgrading the environment of the regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and ZSI were submitted to the MoEF along with plans for protection/propagation of Mahseer Fish recommended by the ZSI and BSI had also recommended certain species to be planted which is being done by the State Forest Department as a part of CAT Programme. Action plan for preservation of Mahseer has been entrusted by THDC for implementation to the National Research Centre on Cold Water Fisheries, Bhimtal. A Botanical Garden in an area of 14.28 hectares is also under implementation by the Uttaranchal State Forest Department near the reservoir and about 50% of its work is completed. It is also submitted that the site development work is completed and induced artificial breeding work will be completed by March 2004. Water Quality Maintenance : At the threshold itself HRC observed that it is not in a position to go into the correctness of the scientific conclusions of various bodies on the maintenance of water quality. Nevertheless they expressed certain opinion regarding the general maintenance of water quality. Central Government decides to follow the advice of Central Water Commission pertaining to the effect of water quality due to impoundment. They also submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hances of vector breeding are very high. Earlier the Bhumbla committee raised this issue pertaining to Tehri dam in 1990. But this was not figured in the clearance given to the Project by the MoEF. HRC Report pointed out this aspect and made the recommendation to undertake a comprehensive study of the potential health impacts of the Tehri dam reservoir, reservoir of the downstream dam and the irrigation canals and mandated to get the plan approved by the Ministry of Health, Government of India. It also recommended to its quick implementation. The Government accepted this reference in the HRC Report. Apart from this acceptance, the petitioners allege that no works have been carried out. Right to health is a fundamental right under Article 21. Protection of this is inextricably linked with the clean environment. Clean and healthy environment itself is a fundamental right. This position was reiterated by this Court in M C Metha v. Union of India [2001] 3 SCC 756. Therefore the impact of the Project on Human Health cannot be given a go by. It has to be seriously scrutinized. All the above-discussed aspects aimed at maintaining the ecological balance and protecting human rights ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Agriculture has approved the Disaster Management Plan prepared by the THDC. And added that they are going to dovetail disaster management plan of the state government at the District level into the plan prepared by THDC. As regards the disaster management, the nodal agency is the Ministry of Agriculture and disaster management plan was approved by the said Ministry in 1992 and a Steering group has been constituted by the Government in every district under the chairmanship of district magistrate for flood fighting and related activities and the Steering group will implement the disaster management plan in case of any eventuality from the dam. The Government of Uttaranchal has also constituted a Steering group under the Chairmanship of the Principal Secretary (Irrigation and Energy), to meet any emergency situation due to the dam. But effectiveness of all these exercises is in the proper carrying out of management activities. Rehabilitation : The construction of Tehri and Koteshwar dams will result in the formation of two lakes having a spread of 42 sq. kms and 2.65 sq. kms respectively at full reservoir levels. The Tehri dam will submerge Tehri town and 22 villages. Anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvironment and rehabilitation aspects of the project and that the recommendations made by the HRC were considered by the Central Government in consultation with the Government of U.P. and it was decided to implement those recommendations as per the decisions indicated against each of the recommendation annexed to the Office Memorandum dated December 9, 1998. It is also made clear that the expenditure shall be shared by the Government of India and the Government of U.P. in the ratio of 60:40 and it was also decided that the Government of U.P. shall take over the direct responsibility for the entire rehabilitation task to be handled directly by its officers under the overall supervision and control of the Commissioner, Garhwal Division for which the State Government shall issue appropriate orders accordingly. Recommendations of the HRC, as accepted by the Government, have been produced before us. It is contended on behalf of the Government that though developmental programme are intended to benefit the citizens of the country but when displacement is on large scale it is the moral duty of the State to ensure that those who are being displaced are properly looked after. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rational. The contention that voting rights to citizens had been given even at the age of 18 years has no relevance to the facts under consideration. Therefore, this contention also does not deserve our intervention. 3. The next objection is raised in regard to major sons and unmarried daughters not being given land but only cash and is not acceptable as the same results in discrimination particularly once they have been recognised as separate families and such discrimination would be violative of their fundamental rights under the Constitution and it is contended that all major married sons should be given 2 hectares of land as a minimum and all the other benefits due to them as a displaced family under the package and they can be given the option of taking cash, equivalent to the value of 2 hectares of land in lieu of the land, if they so desire. This argument also cannot be accepted because as stated earlier on account of scarcity of land it may not be feasible to provide land to every family and even such families as have been treated for purposes of giving larger benefit major sons and unmarried daughters are treated as a separate family and not for any other purposes. Simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional family members of the landless agricultural labourers as on 19.7.1990 would also be eligible to receive the recommended ex-gratia amount as for the fully affected land owner families. The identification of agricultural landless labourers and their additional family members shall be decided by State Administration. The recommendation for allotting 200 sq.m. residential land or cash in lieu thereof, to each married son of the rural land owner family was not accepted by the Government. It is contended on behalf of the petitioners that HRC's recommendations should be accepted by the Government but the Government has formulated another scheme instead of what is recommended by HRC and have suggested payment of ex-gratia amount in the same manner as is given in respect of the affected families and, therefore, no exception can be taken to the decision of the Government. The villages were identified by HRC as fully affected where 75% or more families are fully affected. HRC recommended that in the partially affected villages [where less than 75% families are fully affected], the fully affected families will have the option of resettling else where with rehabilitation provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehabilitation. A well defined R R Policy and Package has been formulated by the Government of U.P. and THDC for Tehri Project affected families which has been improved from time to time to take care of changing requirements. The rehabilitation of affected families of the project is now being handled by the Government of Uttaranchal. As a part of Phase II programme covering about 2500 fully affected rural families to be affected families due to reservoir impoundment, additional land has been identified and is being provided and acquired in Hardwar and Dehradun Districts. Approval of 275.20 hectares of land at Pashulok and 1083 hectares of land at Pathari Block, on lease basis, has been accorded by the Government for resettlement of the remaining fully affected rural families. In addition, proposal for acquisition of about 900 acres of land in District Hardwar and Dehradun is being processed. The State Government proposes to complete rehabilitation by June 2003. The present status of the urban rehabilitation programme covers Tehri Town involving a total of 5291 families falling within the cut-off date of 6th June, 1985. The rehabilitation package available for them is as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ___________________ ______ PRESENT STATUS OF RURAL REHABILITATION s. Description No. of Total No. of Fully No. of fully Balance No. affected land Affected affected affected of fully Villagers affected Families families families affected (in acres) to be rehabilited families rehabilitat- from ed rehabilition 1 2 3 4 . 5 6 7 8 1 Full 37 2293.93 3355 3355 2883 472 submerged/ Affected Area 2 Partially 72 1936.911 5884 2074 124 Submerged / Affected Area TOTAL 109 4930.841 9239 5429 3007 2422 Add 5% Extra (for landless persons + increase families since last survey) : ___________________________________________________________________________ __________ BALANCE FAMILIES OF TEHRI DAM FOR RESETTLEMENT : 2543. Note : (i) Above details are based on survey conducted in the year 2001. (ii) *3810 families are partially affected families, which are not to be shifted. A socio-economic study of the families rehabilitated was conducted by the Administrative Staff College of India, Hyderbad in March 1993. Similarly, the Estimates Committee of U.P. Legislature has also visited some of the resettlement colonies in 1989 and an extract from their report reads as follows : The Committee d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also to be carried out including construction of bridges and roads, establishment of degree and intermediate colleges in rural areas, an ITI, upgradation and setting up of hospital/medical facilities, improvement of electricity lines and sub-station, etc. The Government further gives the details of the land available and the proposed number of families for resettlement. For grievance redressal certain camps had been organised by the Director, Rehabilitation approved by the Government and a grievance redressal cell is functioning in the Rehabilitation Directorate, Uttaranchal Government. Coordination Committee under the Chairmanship of the Commissioner, Garhwal and Co-chairmanship of the CMD, THDC and having Government officials and public representatives as its members, monitors the progress and coordinates between different departments about the progress of work and redresses the difficulties experienced by different departments and partially affected families and give its decision/directions. The Government has also set out details on the Project Works to which reference at this stage may not be necessary. On the question of resettlement and rehabilitation, the first phase c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art with the closure of diversion tunnels T1/T2 and water level rising to EL 700 M. The maximum draw down level is EL 740 M. The reservoir spread at EL 700 M will be 10 sq. km. Compared to full reservoir spread at 830 M of 44 sq.km. The present water spread of reservoir at EL 632 M is 1.2 sq.km. only. It is also made clear on behalf of the respondents that this implied that commensurate safeguards in the works related to Catchment Area Treatment, Command Area Development, Rehabilitation and resettlement, protection of flora and fauna, disaster management plan, etc. are ensured along with the progress of the construction works and it was also implied that the completion of project meant rise in water level in the reservoir and simultaneously increase in the water spread. It is made clear that the condition of pari-passu implementation of conditions prior to the commissioning of the project shall be closely monitored under the existing mechanism set up by MoEF and the project authorities will ensure that prior to closing of diversion tunnels T1/T2 for impoundment of the reservoir, evacuation, resettlement and rehabilitation are completed in all respects. In addition, the catchment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 123, and Mohan Chand v. Union of India Ors., [1995] Supp. 3 SCC 425, which were all cases filed under Article 32 of the Constitution and in one of the cases, which pertained to environmental issues, it was observed as follows : As far as this Court is concerned, being conscious of its constitutional obligation to protect the fundamental rights of the people, it has issued directions in various types of cases relating to the protection of environment and preventing pollution. For effective orders to be passed, so as to ensure that there can be protection of environment along with development, it becomes necessary for the court dealing with such issues to know about the local conditions. Such conditions in different parts of the country are supposed to be better known to the High Courts. The High Courts would be in a better position to ascertain facts and to ensure and examine the implementation of the anti-pollution laws where the allegations relate to the spreading of pollution or non-compliance of other legal provisions leading to the infringement of the anti-pollution laws. For a more effective control and monitoring of such laws, the High Courts have to shoulder greater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven necessary facts an events leading to the fillign the writ petition. I would, therefore, confine myself to giving the necessary background on which my opinion and conclusions are based. In this writ petition under Article 32 of the Constition of India filed by the petitioners in public interest, directions are sought to be issued to the respondents, representing the authorities and Corporation or Union and State Governments, to take necessary measures for protecting environment and human rights which are likely to be adversely affected by construction of Dam in the Valley of Himalayas near Tehri town of the new State of Uttaranchal. The rivers Bhagirathi and Bhilangana rise from glaciers in the Himalayas, part of Garhwal of erstwhile North-Western UP and now part of the new State of Uttaranchal. The two rivers flow south to the plains to form confluence as the Holy river Ganga. Close to the Garhwal town of Tehri at the confluence of two rivers Bhagirathi and Bhilangana more than three billion $ clay core rockfill dam is beign constructed in the upper Ganga basin. The dam area will cover 45 kms. Bhagirathi valley and 25 kms. Bhilangana valley with water spread over an area of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he highest seismicity of the Tehri area had not been adequately taken into consideration by Indian planners. The combined Soviet and Indian teams also found that the life of the Dam claimed to be 100 years may not be accurate and its life would be 62 years or less. They also found that about 85,600 people would be displaced by the project. At this stage of hearing of the case, several developments which took place in the interregnum are required to be stated. As a result of public agitation and protest from the people of Garhwal region to the Project for construction of Dam, in March 1980, the then Prime Minister of India intervened and directed an in-depth review of the Project by an expert group constituted by the Ministry of Science and Technology. The technical group submitted its report in 1986 and recommended abandonment of the Project despite expenditure already incurred in the sum of ₹ 2,006 crores. Environmental Appraisal Committee (EAC) which is a Expert Body within the Ministry of Environment and Forests recorded a unanimous conclusion that Tehri Project did not merit environmental clearance and should be dropped. The Tehri Project was thereafter revived only wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the opinion of learned Brother S. Rajendra Babu J. The final condition stated thus: if the completion of studies, formulation of Action Plan and their implementation to be scheduled in such a way that their execution is pan passu with the engineering works is not adhered to, all engineering works of the Project should be stopped and this condition will be enforced under the Provision of Environment Protection Act 1986. The Ministry of Environment and Forests wrote a letter on 12.4.1991 expressing dis-satisfaction on failure to comply with the conditions on which environmental clearance was given. The respondent-Corporation was directed to submit comprehensive Environmental Plan for effective implementation failing which remedial or prohibitive action under the Act of 1986 was proposed. On 5.1.1991 the petitioner gave a notice under Section 19B of the Act to the Secretary of the Ministry of Environment and Forests stating that the result of non-fulfillment of condition of clearance of the Project by the Corporation, direction should be issued to stop the Project work. Significantly, after service of this notice on 21.10.1991 an earthquake measuring 6.1 on Richter scale hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed by the Secretary, Ministry of Power placing on record the Government of India's decision to implement the recommendations of both the Committees. In the said affidavit it was also stated that the Government had issued a final order accepting conclusions of group of experts on safet aspects. It is reported, that there is no necessity to undertake further steps as recommended by the experts viz. (1) 3-D Non-Linear Analysis of Dam to evaluate its performance against the maximum credible earthquake (2) Simulated Dam Brake Analysis suggested to be undertaken as a matter of abundant caution by the four experts. It may be mentioned that in the mean time the new State of Uttranchal having been formed comprising Garhwal in which the site of dam falls, the State of Uttranchal has been impleaded as the successor to the erstwhile State of Uttar Pradesh. The learned counsel appearing for the petitioner and the intervener in their separate submissions mainly raised two questions based on the constitutional law and the statutory laws i.e. the Environmental Act and the Rules framed thereunder. The thrust of the argument is that from safety aspect and from adverse impact on environ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... velopment must not endanger the natural system that supports life on earth, constant technological efforts are demanded for resources- effective production, so that sacrifice of one eco-system is counter balanced or compensated by recreating another system. (See discussion on the topic in the Book 'Environmental Solution and Development' authored by Chander Pal at pages 198-201 236-237) By river valley dam projects there are adverse up-stream impacts and down stream impacts on environment. The upstrem environmental and ecological impaccts of big dams are : (1) Soil erosion (2) micro-climatic changes (3) loss of forests, flora fauna (4) changes in fisheries, especially on spawning grounds (5) chain effects on catchment area due to construction and displacement etc. (6) landslips, siltation and sedimentation (7) breeding of vectors in the reservoir and increase in related diseases (8) seismicity (9) loss of non forest land (10) water-logging around reservoir (11) growth of weeds. Down stream impacts The down stream environment impacts of the large dams are : (1) Water-logging and salinity (2) micro-climatic changes (3) reduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dships for many. The Government can utilize the natural resources for common good but cannot be allowed to exploit or virtually plunder it in a manner to deprive those presently sustaining their lives on those natural resources and deprive the coming generations who have also a right of living on those resources. On these fundamental issues, there is a cleavage between technological experts, environmentalists and human rights activists. The court is faced with an issue not easy to decide as to which Section of experts and environmentalists is right in their approach. Ours is a constitutional democracy and we are called a 'Welfare State'. Welfare not mean that we have only to strive for fulfillment of political theory Greatest good of greatest number . Our motto from vedic times has been sarva jan Hitay, sarva jan sukhai (benefit of all and happiness of all). Our Vedic prayer is .... Let all be happy, let all be sin-free, let everyone see good in everything. There should be no suffering anywhere. It is, therefore, necessary that when a multimillion big dam project is undertaken to generate electricity and for providing water for irrigation and dirnking, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protect environment for treatment of catchment area, development of Common Area and rehabilitation will go on. In a project of such huge dimensions involving multifarious engineering and non-engineering activities, fulfillment of conditions laid down to undertake the Project have to be taken up simultaneously with the construction work of the dam and proportionately with the progress of engineering work. A Chart to show such progress has been submitted by Tehri Development Corporation to impress upon this Court that although the time schedule has not been strictly adhered to because of the several difficulties and obstructions in the progress of the project, the conditions have been achieved in proportion to the engineering work already taken. It is submitted that Corporation is not guilty of non-fulfillment of the conditions and no prohibitive action is called for. So far as the safety aspects of the dam are concerned, reliance is placed on the technical opinion of the experts, which says that a rock fill dam does not require three-dimensional studies to estimate its safety against earthquake. It is submitted that such computer based three-dimensional studies have been found t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am, physical and biological environment. For building reservoirs, large track of forest lands get submerged. Water logging and salinasation affect the canal irrigated land with varying degrees of severity. Several species of wild animals and plants become extinct. There is a likelihood of several diseases like Malaria spreading. On the positive side, the alleviation of water scarcity leads to improvement in the health standard of people and reduction in diseases caused by shortage of potable water. Barren lands become green. New habitats are created for water birds. In order to take care of the negative aspects of the large dams, the conditions for clearance generally require:- 1. Compensatory afforestation. 2. Treatment of catchment area to prevent prematured silt in other aspects. 3. Measures to prevent or minimise water logging and salinasation in the command area and around the reservoir. 4. Measures to prevent and minimise impact on health. 5. Safeguards against ill effects to the seismicity. 6. Ways of saving translocated wild plants and animals. 7. Proving alternative fules to project labour and ladders for migrant fish to cross over the dam. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke Rishikesh and Haridwar. There are other thickly populated towns and villages down stream. The members of the Environmental Appraisal Committee (EAC) which has an expert body within the Ministry of Environmental amd Forest had earlier unanimously concluded that the Tehri project did not merit environment clearance and should be abandoned. Thereafter, a Committee of Secretaries of concerned Departments was constituted which did not agree with the EAC's recommendations. A dissenting note was submitted by expert Dr. V.K. Gaur to the Committee of Secretaries. The Committee then assigned reassessment of the task of safety to the department of mines. Professor Jai Krishna an earthquake engineer but not a seismologist opined in favour of the project. The foreign expert Professor James D. Brune was a seismologist who did not favour the project due to safety aspect involved. On safety aspects the matter was brought to this Court in case reported in Tehri Bandh Virodhi Sangarsh Samiti and Ors. v. State of U.P. Ors., [1992] (supp) 1 SCC 44 by environmentalists. This Court while refusing to interfere with the matter went by the opinion of Earthquake Engineer Professor Jai Krishna. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of the project require further precautions to be taken before filling the dam to the optimum capacity. It is not the casse of the respondents that 3-D Non-Linear Analysis of the dam cannot be undertaken with the assistance of foreign experts on the subject. To take care of all eventualities of damage to dam by earthquake, 3-D Non-Linear Analysis of the dam suggested by four experts as a matter of abundant caution must be undertaken. It is only after 3-D Non-Linear Analysis of the dam is completed and the opinion of the experts on the safety aspect is again sought that further impoundment of the dam should be allowed. In M.C. Mehta v. Union of India (Trapezium matter), [1997] 2 SCC 353 this Court has applied 'Polluter pays principle' and 'Precautionary principle' of International law as law of the land of this country, India being party to the United Nation Conference and signatory to International Declarations and Agreements. Requirement of the provisions of the Act and the conditional clearance Before taking up the rehabilitation aspect for issuing necessary directions it is required to be stated that in accordance with the provisions of Section 3 of Env ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or want of non-fulfillment of the conditional clearance the project construction work should be stopped. There is on record a note dated 21.10.1994 of Additional Director of Ministry of Environment recording that although the environment clearance was granted to the project in the year 1990, 'the status of implementation of various safeguard measures were lagging far behind'. It was also pointed out in the note of the Director that there was an urgent need 'to evolve a monitoring mechanism for the Tehri Dam Project'. Where the requirements of law as contained in the Act, the Rules and the notification issued thereunder contemplate imposition of conditions for clearance to a project to minimise its adverse impact on environment, the Authorities granting such clearance possess a power couple with duty and obligation to ensure fulfillment of the conditions on the basis of which the environmental clearance is granted. We are sorry to note that in the face of so may conflicting expert opinions on the project undertaken in a highly earthquake prone region the conditional environmental clearance was granted without monitoring the work of the project to ensure fulfillmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperly. 3. Replacement value to be the norm for compensation, against the present norm of market value which is totally inadequate. 4. Right to life with dignity enshrined in Article 21 of the Constitution should be respected. So, the displaced persons should have a better lifestyle after displacement than before it because they are paying the price of national development. 5. Displaced Persons (DPs/PAPs) should be the first beneficiaries of any project. 6. Rehabilitation is mandatory and should go on side by side with the project. 7. Land for land is recommended to all and is mandatory for tribals. Compensation is to be provided for common property resources and forest lands that may be acquired from their dependants. 8. The DPs/PAPs are defined in a way as to include not only land onwers but also those who depend on it without owning it, and those who have common property resources as their sustenance. This Court in the case of Karjan Jalasay Yojana Assargrasth Shakhar Ane Snagharsh Samiti v. State of Gujarat, AIR (1987) SC 532 has held thus: Simultaneously with taking possession of the acquired land from any person in occupation of it, such person shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants and other landless persons who survive on natural resources and those who are better off, rich or affluent and who desire to undertake agriculture and industry. When river projects for dams are undertaken to generate electricity and improve irrigation facilities, conflicts arise between people living up-stream who have to necessarily lose their source of living and habitat and those living down- stream who need water and electricity for their homes, industries and agricultural fields. When such social conflicts between different social groups i.e. up-stream population and down-stream population, between rural population and urban population, between poor surviving on natural resources and others needing natural resources for further development arise what should be the duty and priorities of the State and its authorities who have undertaken the projects? When such social conflicts arise between poor and more needy on one side and rich or affluent or less needy on the other, prior attention has to be paid to the former group which is both financially and politically weak. Such less advantaged group is expected to be given prior attention by Welfare State like ours which is comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rusted for implementation. (1) The Central Government in terms of the recommendations of Expert Committee for Environmental Impact Assessment as contained in Schedule III of the Notification dated 27th January, 1994 issued in exercise of powers under sub-section (i) and Cl.V of sub-section (2) of Section 3 of Environment (Protection) Act, 1986 read with Cl.(f) of sub-Rule (3) of Rule 5 of Environment (Protection) Act, 1986 shall constitute a Committee of Expertrs and representatives of NGOs (if not already constituted) for the purpose of investigating, ascertaining and reporting whether the pari passu condition laid down in the environment clearance of the Project have been fulfilled or not by the authorites of the Project. The aforesaid committee will inspect and report on the status of the work to the Central Government every three months and in case the conditions, as laid down in the clearance, are not fulfilled recommend the remedial or corrective measures/ actions. (2) To take care of the safety aspect,until 3-D Non-Linear Analysis and Dam Break Analysis are completed as recommended by the Committee on safety and the result assessed by the aforesaid Expert Committee is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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