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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 ..... ts 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 carefully assessed and balanc ..... 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, its quality, and existing water ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 possibility of soil erosio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod 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 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 project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pprehensions. It should be entirely possible to give a conditional clearance and ensure that the conditions are properly met through a process of clear assignment of responsibility and frequent monitoring.................Moreover, even assuming that the postponement of a decision by three years will improve the availability of detailed information and the state of preparedness on environmental matters, there can be no greater assurance at that stage than there is now regarding the whole-hearted and effective implementation of the remedial and ameliorative measures. We would still have to depend on proper monitoring.......". In conclusion, the Note urged that clearance from the environmental angle and under the Forest Conservation Act, 1980 be given immediately, subject to conditions and stipulations relating to the various environmental and related aspects outlined in the Note. (Emphasis supplied) 7. Another Note was prepared by the Ministry of Water Resources and forwarded to the Additional Secretary to the Prime Minister on 20th November, 1986. Insofar as catchment area treatment was concerned, it concluded that it was certain that the catchment area treatment programme co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensatory afforestation, rehabilitation and re-settlement of affected population and remedial or re-location measures for plant species, wildlife, etc. formulated; the responsibility for their implementation clearly identified; and then the projects should be given a clearance from the environmental and forest angles. This would mean a postponement of the clearance of projects by about three years." The other option was that the project should be given the necessary clearance with conditions and stipulations in regard to the actions to be taken on the various environmental aspects with appropriate monetary arrangements. The Note recommended the latter option. phasis supplied) 8. On 19th December, 1986 the Ministry of Environment and Forests sent to the Secretary to the Prime Minister a Note on the environment aspects of the Narmada Sagar and the Sardar Sarovar Projects. The Note stated that it covered the major environmental issues which included the rehabilitation of the affected population, catchment area treatment, Command area development, compensatory afforestation and the loss of flora and fauna. It explained the then status of each of these aspects in terms of availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed to undertake afforestation on double the extent for degraded forest land, which proposal was fairly detailed and seemed satisfactory. In the matter of the loss of flora and fauna the Note stated "that the forest area, specially affected by the Narmada Sagar Project, represents, areas harbouring rich heritage of genetic resources as well as wildlife. The preliminary study carried out by the Environmental Planning and Coordination Organisation, Bhopal as well as the observations made by the World Bank clearly underlined the need for preparing a master plan showing not just the present status but also the likely scenarios after the project was implemented. The prime concern was to ascertain the loss of biological diversity and whether the wildlife would be able to sustain itself after the destruction of its habitat. The following studies were considered absolutely essential both to determine the loss of flora and the adequacy or otherwise of the left over habitat to sustain the wildlife: - A wildlife census of the area (ZSI will take at least 2-3 years to complete the survey); - Preparation of a Master Plan showing all protected areas i.e. National Parks, Wildlife R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already been invested on SSP which is critically linked--on technical and operational aspects--to NSP. However, it may not be too late even now to modify some of the parameters of NSP and SSP to minimise environmental damage at the same time ensuring optimal utilisation of water resources. ........................................................................... The choice is difficult but a choice has to be made." (Emphasis supplied) 9. A Note was prepared on 15th January, 1987 in the Prime Minister's Office. It noted that the main issues on environmental concerns were the rehabilitation of the affected population, compensatory afforestation, treatment of the catchment area and Command area development, pertaining, particularly, to drainage, water logging and salinity. The Department of Environment and Forests had raised the point that the rehabilitation plan was not ready, land had not been surveyed, areas of land use capability and water availability had not been identified and the land being suggested for rehabilitation, prima facie, appeared to be infertile. Detailed meetings with the State Governments revealed that they were seriously undertaking surveys, la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation Master Plan. (ii) Phased Catchment Area Treatment Scheme. (iii) Compensatory Afforestation Plan. (iv) Command Area Development. (v) Survey of Flora and Fauna. (vi) Carrying Capacity of surrounding area. (vii) Seismicity; and (viii) Health Aspects. 3. Field Surveys are yet to be completed. The first set of information has been made available and complete details have been assured to be furnished by 1989. 4. The NCA has been expanded and its terms of reference has been amplified to ensure that environmental safeguard measures are planned and implemented in depth and in its pace of implementation pari passu with the progress of work on the project. 5. After taking into account all relevant facts of Narmada Sagar Project, Madhya Pradesh and the Sardar Sarovar Project, Gujarat are hereby accorded environmental clearance subject to the following conditions: (i) The Narmada Control Authority (NCA) will ensure that environmental safeguard measures are planned and implemented pari passu with progress of work on projects. (ii) The detailed surveys/studies assured will be carried out as per the schedule proposed and details made available to the Department for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es undertaken and action initiated, it will be clear from the preceding paragraphs that much still remains to be done. Indeed it is the view of the Ministry of Environment, Forests and Wildlife that what has been done so far whether by way of action or by way of studies does not amount to much and that many matters are yet in the early and preliminary stages". The Notes make clear that the studies, censuses, mapping of areas and field surveys for the collection of data for assessment of the environmental impact of the Project were likely to take a further 2 to 3 years. An environmental clearance based on next to no data in regard to the environmental impact of the Project was contrary to the terms of the then policy of the Union of India in regard to environmental clearances and, therefore, no clearance at all. 14. The environmental clearance of 24th June, 1987 stated that details had been sought from the Project authorities in respect of the rehabilitation master plan, phased catchment area treatment scheme, compensatory afforestation plan. Command area development, survey of flora and fauna, carrying capacity of surrounding area, seismicity and health aspects; field surveys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir upon the catchment and those who were required to be settled elsewhere. In fact, the impoundment began much before. 18. Learned counsel for the Union of India submitted that most of the necessary surveys and studies had been carried out in regard to the environmental impact of the project before the environmental clearance was given, and he invited our attention to what had been done. The short answer to the submission on behalf of the Union of India is that the two concerned Ministries of the Union of India thought otherwise at the relevant time. To quote the Note of one Ministry again, "While some plans have been made, studies undertaken and action initiated, it would be clear from the preceding paragraph that much still remains to be done. Indeed it is the view of the Ministry of Environment, Forests and Wildlife that what has been done so far whether by way of action or by way of studies does not amount to much and that many matters are yet in the early and preliminary stages". 19. The fact that the environmental clearance was given by the Prime Minister and not by the Ministry of Environment and Forests, as it would ordinarily have been done, makes no difference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed by the Impact Assessment Agency, and if deemed necessary it may consult a Committee of Experts, having a composition as specified in Schedule-Ill of this Notification. The Impact Assessment Agency (IAA) would be the Union Ministry of Environment and Forests. The Committee of Experts mentioned above shall be constituted by the IAA or such other body under the Central Government authorised by the IAA in this regard.................". Schedule III of the notification reads thus: "COMPOSITION OF THE EXPERT COMMITTEES FOR ENVIRONMENTAL IMPACT ASSESSMENT 1. The Committees will consist of experts in the following disciplines: (i) Eco-System Management (ii) Air/Water Pollution Control (iii) Water Resource Management (iv) Flora/Fauna Conservation and Management (v) Land Use Planning (vi) Social Sciences/Rehabilitation (vii) Project Appraisal (viii) Ecology (ix) Environmental Health (x) Subject Area Specialists (xi) Representatives of NGOs/Persons concerned with Environmental Issues. 2. The Chairman will be an outstanding and experienced ecologist or environmentalist or technical professional with wide managerial experience. 3. The representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present level have already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who will be ousted by the increase in the height of the dam by another 5 meters is already in the possession of the respective States; and this process must be repeated for every successive proposed 5 meter increase in the dam height. 25. Only by ensuring that relief and rehabilitation is so supervised by the Grievance Redressal Authorities can this Court be assured that the oustees will get their due. 26. It is necessary to provide for the contingency that, for one or other reason, the work on the Project, now or at any time in the future, does not proceed and the Project is not completed. Should that happen, all oustees who have been rehabilitated must have the option to continue to reside where they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they must not be made at all liable in monetary or other terms on this account. 27. When the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the increase in the height of the dam by 5 meters from its present level have already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who will be ousted by the increase in the height of the dam by another 5 meters is already in the possession of the respective States. (8) This process shall be repeated for every successive proposed 5 meter increase in the dam height. (9) If for any reason the work on the Project, now or at any time in the future, cannot proceed and the Project is not completed, all oustees who have been rehabilitated shall have the option to continue to reside where they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they shall not be made at all liable in monetary or other terms on this account. 30. The writ petition is allowed in the aforesaid terms. The connected matters are disposed of in the same terms. 31. No order as to costs. B.N. Kirpal, J. 32. Narmada is the fifth largest river in India and largest West flowing river of the Indian Peninsula. Its annual flow approximates to the combined flow of the rivers Sutlej, Beas and Ravi. Origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Bombay. At that time the implementation was contemplated in two stages. In Stage-I, the Full Reservoir Level (hereinafter referred to as 'FRL') was restricted to 160 ft. with provision for wider foundations to enable raising of the dam to FRL 300 ft. in Stage-II. A high level canal was envisaged in Stage-II. The erstwhile Bombay Government suggested two modifications, first the FRL of the dam be raised from 300 to 320 ft. in Stage-II and second the provision of a power house in the river bed and a power house at the head of the low level canal be also made. This project was then reviewed by a panel of Consultants appointed by the Ministry of Irrigation & Power who in a report in 1960 suggested that the two stages of the Navagam dam as proposed should be combined into one and the dam be constructed to its final FRL 320 ft. in one stage only. The Consultants also stated that there was scope for extending irrigation from the high level canal towards the Rann of Kutch. 37. With the formation of the State of Gujarat on 1st May, 1960, the Narmada Project stood transferred to that State. Accordingly, the Government of Gujarat gave an administrative approval to Stage-I of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istance 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 Committee of eminent engineers headed by Dr. A.N. Khosla, the then Governor of Orissa, was constituted on 5th September, 1964 by the Government of India. The terms of reference of this Committee were decided by the Government of India in consultation with the States of Madhya Pradesh, Maharashtra and Gujarat. The same read as under: i) Drawing up of a Master Plan for the optimum and integrated development of the Narmada water resources. ii) The phasing of its implementation for maximum development of the resources and other benefits. iii) The examination, in particular, of Navagam and alternative projects, if any, and determining the optimum reservoir level or levels. iv) Making recommendation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he river bed power station and canal power station should be 1000 mw and 240 mw respectively with one stand-by unit in each power station (in other words the total installed capacity at Navagam would be 1400 mw). The benefits of the Navagam Dam as assessed by the Khosla Committee were as follows:- (1) Irrigation of 15.80 lakh hectares (39.4 lakh acres) in Gujarat and 0.4 lakh hectares (1.00 lakh acres) in Rajasthan. In addition, the Narmada waters when fed into the existing Mahi Canal system would release Mahi water to be diverted on higher contours enabling additional irrigation of 1.6 to 2.0 lakh hectares (4 to 5 lakh acres) approximately in Gujarat and 3.04 lakh hectares (7.5 lakh acres) in Rajasthan. (2) Hydropower generation of 951 M W at 60% LF in the mean year of development and 511 MW on ultimate development of irrigation in Gujarat, Madhya Pradesh, Maharashtra and Rajasthan. 43. The Khosla Committee stressed an important point in favour of high Navagam Dam, namely, additional storage. They emphasized that this additional storage will permit greater carryover capacity, increased power production and assured optimum irrigation and flood control and would minimise the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o raise the Navagam dam to an optimum height commensurate with the efficient use of Narmada waters including its control for providing requisite cushion for flood control; and (iv) the consequential right of submergence of area in the States of Madhya Pradesh and Maharashtra and areas in the Gujarat State. 45. Acting under Section 4 of the Inter-State Water Disputes Act, 1956, the Government of India constituted a Tribunal headed by Hon'ble Mr. Justice V. Ramaswamy, a retired Judge of this Court. On the same day, the Government made a reference of the water dispute to the Tribunal. The Reference being in the following terms: In exercise of the powers conferred by Sub-section (1) of Section 5 of the Inter-State Water Disputes Act, 1956 (33 of 1956), the Central Government hereby refers to the Narmada Water Disputes Tribunal for adjudication of the water dispute regarding the inter-State river, Narmada, and the river-valley thereof, emerging from letter No. MIP-5565/C-10527-K dated the 6th July, 1968, from the Government of Gujarat. 46. On 16th October, 1969, the Government of India made another reference of certain issues raised by the State of Rajasthan to the said Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sthan had entered into an agreement to compromise the matters in dispute with the assistance of Prime Minister of India. This led to a formal agreement dated 12th July, 1974 being arrived at between the Chief Ministers of Madhya Pradesh, Maharashtra & Rajasthan and the Advisor to the Governor of Gujarat on a number of issues which the Tribunal otherwise would have had to go into. The main features of the Agreement, as far as this case is concerned, were that the quantity of water in Narmada available for 75% of the year was to be assessed at 28 million acre feet and the Tribunal in determining the disputes referred to it was to proceed on the basis of this assessment. The net available quantity of water for use in Madhya Pradesh and Gujarat was to be regarded as 27.25 million acre feet which was to be allocated between the States. The height of the Navagam Dam was to be fixed by the Tribunal after taking into consideration various contentions and submissions of the parties and it was agreed that the appeals filed in this Court by the States of Madhya Pradesh and Rajasthan would be withdrawn. It was also noted in this agreement that "development of Narmada should no longer be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10 g for the dam. C) RELIEF AND REHABILITATION: The final Award contained directions regarding submergence, land acquisition and rehabilitation of displaced persons. The award defined the meaning of the land, oustee and family. The Gujarat Government was to pay to Madhya Pradesh and Maharashtra all costs including compensation, charges, expenses incurred by them for and in respect of compulsory acquisition of land. Further, the Tribunal had provided for rehabilitation of oustees and civic amenities to be provided to the oustees. The award also provided that if the State of Gujarat was unable to re-settle the oustees or the oustees being unwilling to occupy the area offered by the States, then the oustees will be re-settled by home State and all expenses for this were to be borne by Gujarat. An important mandatory provision regarding rehabilitation was the one contained in Clause XI Sub-clause IV(6)(ii) which stated that no submergence of any area would take place unless the oustees were rehabilitated. D) ALLOCATION OF THE NARMADA WATERS: The Tribunal determined the utilizable quantum of water of the Narmada at Sardar Sarovar Dam site on the basis of 75% dependability at 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gate such of its powers as it thought fit. Accordingly, the Narmada Control Authority constituted the following discipline based sub-groups: (i) Resettlement and Rehabilitation subgroup under the Chairmanship of Secretary, Ministry of Welfare; (ii) Rehabilitation Committee under Secretary, Minister of Welfare to supervise the rehabilitation process by undertaking visits to R&R sites and submergence villages. (iii) Environment Sub-group under the Chairmanship of Secretary, Ministry of Environment and Forests; (iv) Hydromet Sub-group under the Chairmanship of Member (Civil), Narmada Control Authority; (v) Power Sub-group under the Chairmanship of Member (Power) Narmada Control Authority; (vi) Narmada main Canal Sub-committee under the chairmanship of Executive Member, Narmada Control Authority. 55. The Award allocated the available water resources of the Narmada river between the four States. Based on this allocation, an overall plan for their utilisation and development had been made by the States. Madhya Pradesh was the major sharer of the water. As per the water resources development plan for the basin it envisaged in all 30 major dams, 135 medium dam projects and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 7.5 lac population. Benefits to: a) Dhumkhal Sloth Bear Sanctuary. b) Wild Ass Sanctuary in Little Rann of Kachchh c) Black Buck Sanctuary at Velavadar. d) Great Indian Bustard Sanctuary in Kachchh e) Nal Sarovar Bird Sanctuary. Development of fisheries: Deepening f all village tanks of command which will increase their capacities, conserve water, will recharge ground water, save acquisition of costly lands for getting earth required for constructing canal banks and will reduce health hazard. Facilities of sophisticated communication system in the entire command. Increase in additional annual production on account of (Rs. In Crores) Agricultural production 900 Domestic water supply 100 Power Generation 440 Total 1400. POST AWARD CLEARANCES: 58. In order to meet the financial obligations, consultations had started in 1978 with the World Bank for obtaining a loan. The World Bank sent its Reconnaissance Mission to visit the project site and carried out the necessary inspection. In May, 1985, the Narmada Dam and Power Project and Narmada Water Delivery and Drainage Project were sanctioned by the World Bank under International Development Agency, credit No. 1552. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv) The Department should be kept informed of progress on various works periodically. 6. Approval under Forest (Conservation) Act, 1980 for diversion of forest land will be obtained separately. My work should be initiated on forest area prior to this approval. 7. Approval from environmental and forestry angles for any other irrigation, power or development projects in the Narmada Basin should be obtained separately. Sd/- (S.MUDGAL) DIRECTOR(IA) 60. In November, 1987 for monitoring and implementation of various environmental activities effectively, an independent machinery of Environment Sub-Group was created by Narmada Control Authority. This Sub-Group was appointed with a view to ensure that the environmental safeguards were properly planned and implemented. This Sub-Group is headed by the Secretary, Ministry of Environment and Forests, Government of India, as its Chairperson and various other independent experts in various fields relating to environment as its members. 61. After the clearance was given by the Ministry of Environment and Forests, the Planning Commission, on 5th October, 1988, approved investment for an estimated cost of ₹ 6406/- crores with the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the Five Member Group and the Government of India was also directed to give its response to the said report. 68. By order dated 13th December, 1994, this Court directed that the report of the Five Member Group be made public and responses to the same were required to be filed by the States and the report was to be considered by the Narmada Control Authority. This Report was discussed by the Narmada Control Authority on 2nd January, 1995 wherein disagreement was expressed by the State of Madhya Pradesh on the issues of height and hydrology. Separate responses were filed in this Court to the said Five Member Group Report by the Government of India and the Governments of Gujarat and Madhya Pradesh. 69. On 24th January, 1995, orders were issued by this Court to the Five Member Group for submitting detailed further report on the issues of: a) Height b) Hydrology c) Resettlement and Rehabilitation and environmental matters. 70. Dr. Patil who had headed the Five Member Group expressed his unwillingness to continue on the ground of ill-health and on 9th February, 1995, this Court directed the remaining four members to submit their report on the aforesaid issues. On 17th Apr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pended upon the view they took on the displacement and rehabilitation problem. The two views which, it examined, were, firstly whether the problem of displacement and rehabilitation was manageable and, if it was, then there would be no case of reduction in the height. On the other hand, if relief and rehabilitation was beset with serious and persistent problems then they might be led to the conclusion that there should be an examination of the possibility of reducing submergence and displacement to a more manageable size. These three Members then considered the question of the magnitude of the relief and rehabilitation problem. After taking into consideration the views of the States of Madhya Pradesh and Gujarat, the three Members observed as follows: We find that the Government of India's idea of phased construction outlined earlier offers a practical solution; it does not prevent the FRL from being raised to 455' in due course if the necessary conditions are satisfied; and it enables the Government of Madhya Pradesh to take stock of the position at 436' and call a halt if necessary. We would, however, reiterate the presumption expressed in paragraph 3.9.2. above nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersuade this Court that further submergence should not take place and the height of the dam, if at all it is to be allowed to be constructed, should be considerably reduced as it is not possible to have satisfactory relief and rehabilitation of the oustees as per the Tribunal's Award as a result of which their fundamental rights under Article 21 would be violated. 74. While the State of Madhya Pradesh has partly supported the petitioners inasmuch as it has also pleaded for reduction in the height of the dam so as to reduce the extent of submergence and the consequent displacement, the other States and the Union of India have refuted the contentions of the petitioners and of the State of Madhya Pradesh. While accepting that initially the relief and rehabilitation measures had lagged behind but now adequate steps have been taken to ensure proper implementation of relief and rehabilitation at least as per the Award. The respondents have, while refuting other allegations, also questioned the bona fides of the petitioners in filing this petition. It is contended that the cause of the tribals and environment is being taken up by the petitioners not with a view to benefit the tribals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re undertaken and hundreds of crores of public money is spent, individual or organisations in the garb of PIL cannot be permitted to challenge the policy decision taken after a lapse of time. It is against the national interest and contrary to the established principles of law that decisions to undertake developmental projects are permitted to be challenged after a number of years during which period public money has been spent in the execution of the project. 79. The petitioner has been agitating against the construction of the dam since 1986, before environmental clearance was given and construction started. It has, over the years, chosen different paths to oppose the dam. At it's instance a Five Member Group was constituted, but it's report could not result in the stoppage of construction pari passu with relief and rehabilitation measures. Having failed in it's attempt to stall the project the petitioner has resorted to court proceedings by filing this writ petition long after the environmental clearance was given and construction started. The pleas relating to height of the dam and the extent of submergence, environment studies and clearance, hydrology, Seism city ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Constitution Bench of this Court in The State of Karnataka v. State of Andhra Pradesh and Ors. 2000 (3) Scale 505. That was a case relating to a water dispute regarding inter-State river Krishna between the three riparian States and in respect of which the Tribunal constituted under the Inter-State Water Disputes Act, 1956 had given an Award. Dealing with the Article 262 and the scheme of the Inter-State Water Disputes Act, this Court at page 572 observed as follows: The inter-State Water Disputes Act having been framed by the Parliament under Article 262 of the Constitution in a complete Act by itself and the nature and character of a decision made thereunder has to be understood in the light of the provisions of the very Act itself. A dispute or difference between two or more State Governments having arisen which is a water dispute under Section 2(C) of the Act and complaint to that effect being made to the Union Government under Section 3 of the said Act the Central Government constitutes a Water Disputes Tribunal for the adjudication of the dispute in question, once it forms the opinion that the dispute cannot be settled by negotiations. The Tribunal thus constituted, is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th ILO Convention 107 to which India is a signatory. Elaborating this contention, it was submitted that this Court had held in a large number of cases that international treaties and covenants could be read into the domestic law of the country and could be used by the courts to elucidate the interpretation of fundamental rights guaranteed by the Constitution. Reliance in support of this contention was placed on Gramaphone Co. of India Ltd. v. B.B. Pandey 1984(2)ECC142 , PUCL v. Union of India AIR1997SC1203 and CERC v. Union of India (1995)IILLJ768SC . In this connection, our attention was drawn to the ILO Convention 107 which stipulated that tribal populations shall not be removed from their lands without their free consent from their habitual territories except in accordance with national laws and regulations for reasons relating to national security or in the interest of national economic development. It was further stated that the said Convention provided that in such cases where removal of this population is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of lands previously occupied by them, suitable to provide for their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to poundage and backwater effect corresponding to 1 in 100 year flood. The State-wise break up of affected villages and the number of project affected families (PAFs) shows that only four villages would be fully affected (three in Gujarat and one in Madhya Pradesh) and 241 would be partially affected (16 in Gujarat, 33 in Maharashtra and 192 in Madhya Pradesh). The total project affected families who would be affected were 40827. The extent of the submergence was minimum in the State of Madhya Pradesh. The picture of this submergence as per the Government of Madhya Pradesh Action Plan of 1993 is as follows: Abadi will be fully submerged in 39 villages and partially in 116 villages, agricultural land will be affected upto 10% in 82 villages, 11 to 25% in 32 villages, 26 to 50% in 30 villages, 51 to 75% in 14 villages, 76 to 90% in 4 villages and 100% in only 1 village. In 21 villages, only abadi will be affected and Government land only in 9 villages. Thus, in most of the villages, submergence is only partial. The submergence area of the SSP can be divided into two areas: i) Fully tribal, hilly area covering the initial reach of about 105 villages with mainly subsistence econo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis as per the Government of Madhya Pradesh, only 830 project affected families of Madhya Pradesh were required to be allotted agricultural land in Madhya Pradesh. 85. According to the Government of Gujarat the tribals constituted bulk of project affected families who would be affected by the dam in Gujarat and Maharashtra, namely, 97% and 100% respectively. Out of the oustees of project affected families of Madhya Pradesh, tribals constituted only 30% while 70% were non-tribals. The total number of tribal project affected families were 17725 and out of these, 9546 are already re-settled. It was further the case of the respondents that in Madhya Pradesh the agricultural land of the tribal villages was affected on an average to the extent of 28% whereas in the upper reaches i.e. Nomad where the agriculture was advanced, the extent of submergence, on an average, was only 8.5%. The surveys conducted by HMS Gour University (Sagar), the Monitoring and Evaluation Agency set up by the Government of Madhya Pradesh, reveal that the major resistance to relocation was from the richer, non-tribal families of Nomad who feared shortage of agriculture labour if the landless labourers from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with land of quality atleast equal to that of the land previously occupied by them and they shall be fully compensated for any resulting loss or injury. The rehabilitation package contained in the Award of the Tribunal as improved further by the State of Gujarat and the other States prima facie shows that the land required to be allotted to the tribals is likely to be equal, if not better, than what they had owned. 88. The allegation that the said project was not in the national or public interest is not correct seeing to the need of water for burgeoning population which is most critical and important. The population of India, which is now one billion, is expected to reach a figure between 1.5 billion and 1.8 billion in the year 2050, would necessitate the need of 2788 billion cubic meter of water annually in India to be above water stress zone and 1650 billion cubic metre to avoid being water scarce country. The main source of water in India is rainfall which occurs in about 4 months in a year and the temporal distribution of rainfall is so uneven that the annual averages have very little significance for all practical purposes. According to the Union of India, one third of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for about 30 million, employ about 1 million, and provide valuable peak electric power in an area with high unmet power demand (farm pumps often get only a few hours power per day). In addition, recent research shows substantial economic "multiplier" effects (investment and employment triggered by development) from irrigation development. Set against the futures of about 70,000 project affected people, even without the multiplier effect, the ratio of beneficiaries to affected persons is well over 100:1..., There is merit in the contention of the respondents that there would be a positive impact on preservation of ecology as a result from the project. The SSP would be making positive contribution for preservation of environment in several ways. The project by taking water to drought-prone and arid parts of Gujarat and Rajasthan would effectively arrest ecological degradation which was returning to make these areas inhabitable due to salinity ingress, advancement of desert, ground water depiction, fluoride and nitrite affected water and vanishing green cover. The ecology of water scarcity areas is under stress and transfer of Narmada water to these areas will lead to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion after taking into account the environmental impacts of the project. The execution of SSP without a comprehensive assessment and evaluation of its environmental impacts and a decision regarding its acceptability was alleged to be a violation of the rights of the affected people under Article 21 of the Constitution of India. It was further submitted that no independent authority has examined vehemently the environmental costs and imitative measurers to be undertaken in order to decide whether the environmental costs are acceptable and imitative measures practical. With regard to the environmental clearance given in June, 1987, the submission of Sh. Shanti Bhushan was that this was the conditional clearance and the conditions imposed by the Ministry of Environment and Forests had been violated. The letter granting clearance, it was submitted, disclosed that even the basic minimum studies and plans required for the environmental impact assessment had not been done. Further more it was contended that in the year 1990, as the deadline for completion of the studies was not met, the Ministry of Environment and Forests had declared that the clearance had lapsed. The Secretary of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d even now they were lagging behind pari passu. It was also contended that mere listing of the studies does not imply that everything is taken care of. Some of the studies were of poor quality and based on improper data and no independent body had subjected these to critical evaluation. RE: ENVIRONMENTAL CLEARANCE: 96. As considerable stress was laid by Sh. Shanti Bhushan challenging the validity of the environmental clearance granted in 1987 inter alia on the ground that it was not preceded by adequate studies and it was not a considered opinion and there was non-application of mind while clearing the project, we first propose to deal with the contention. 97. The events after the Award and upto the environmental clearance granted by the Government vide its letter dated 24th June, 1987 would clearly show that some studies, though incomplete, had been made with regard to different aspects of the environment. Learned Counsel for the respondents stated that in fact on the examination of the situation, the claim made with regard to the satisfactory progress was not correct. In order to carry out the directions in the Award about the setting up of an authority, the Inter-State Water ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appraisal Committee of the Department of Environment, then headed by a Joint Secretary, had in its meeting held on 12.4.1983 approved the project, in principle, and required that further data be collected. This Environmental Appraisal Committee dealt with the project on two other occasions, namely, on 29.3.1985 when it deferred meeting to await report of Dewan Committee on soil conservation and thereafter on 6.12.1985 when it deferred the meeting to await comments from the Forest Department. As stated hereafter, subsequently the Secretary of newly constituted Ministry of Environment and Forests took up further consideration of this project along with other higher officials. 101. After the project was approved, in principle, studies and collections of data were continuing. In May, 1983 the Narmada Planning Group, Government of Gujarat after completion of preliminary surveys submitted work plans for various activities such as cropping pattern, health aspects, water requirements, distribution system, lay out and operation, development plan of the command, drainage and ground water development. 102. In July, 1983, a study report on "Ecology and Environmental Impact of Sardar Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials of Gujarat, Madhya Pradesh and Maharashtra as well as the experts who were involved in preparation of plans. The Secretary, Ministry of Environment and Forests assessed and reviewed readiness on various environmental aspects like Catchment Area Treatment, Compensatory Afforestation, Rehabilitation, Command area Development, Labour force and health issues, aquatic species, Seism city etc. and discussed the available reports in detail in the presence of the officers of the Central/State Governments, Botanical Survey of India, senior officers of Forest Department, Planning Commission, Agriculture Department, Additional. Inspector of Forests, Government of India, Deputy Inspector General, Assistant Inspector General of Forest, Government of India, senior officers of the Ministry of Environment and Forests, Secretary, Irrigation. 106. As a follow up, the Government of Maharashtra submitted environmental data regarding affected areas in Maharashtra. This included: *Impact assessment on wild life *Impact assessment on genetics, specifically identifying the plant types which are likely to be lost as a result of submergence. *Socio anthropological studies on tribals *The suita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he detailed survey of population likely to be affected in all phases of N.S.P. ...Three years 2. Maharashtra to prepare a detailed rehabilitation plan for 33 villages under phase 1 of SSP ...Three years 3. Madhya Pradesh to identify degraded forest lands twice the forest area to be submerged for compensatory afforestation. ...Six months 4. Survey of flora in Narmada valley assigned to Botanical Survey of India. ...Two years 5. Survey of Wildlife by Zoological Survey of India. ...Two years 6. Aerial photographs and satellite imagery to be analysed by All India Soil and Land Use Survey Organisation and National Remote Sensing Agency and critically degraded areas in catchment. Field Serveys …… Three Years. Pilot studies to determine measures for CAT In 25000 ha. ...Three years after Aerial survey. 110. In this note two options were considered - one to postpone the clearance and the other was to clear it with certain conditions with appropriate monitoring authorities to ensure that the action is taken within the time bound programme. It was concluded that in the light of the position set out, it was necessary that the project should be cleared from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ait for two to three years for the completion of the operational plans and other detailed studies and the second option was that the project should be given the necessary clearance subject to the stipulation with regard to the action to be taken in connection with various environmental aspects and appropriate monitoring arrangements to ensure that the actions were taken in a time bound manner. The Ministry of Water Resources recommended that it should be possible to give environmental clearance of the project and ensure that the conditions are properly met through a process of clear assignment of responsibility and frequent monitoring. The modus operandi for instituting a monitoring system could be discussed at the meeting. 113. On 26th November, 1986, a meeting took place which was attended, inter alia, by the Secretary, Ministry of Water Resources, Secretary, Ministry of Environment & Forests, Additional Secretary, Prime Minister Secretariat and representatives of the Governments of Madhya Pradesh and Gujarat regarding the environmental aspects of the Narmada Sagar and Sardar Sarovar Project. The minutes of the meeting, inter alia, disclosed "it was decided that the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tailed note dated 15th January, 1987 was prepared by Mrs. Otima Bordia, Additional Secretary to the Prime Minister. The notes opened by saying that Narmada Sagar and Sardar Sarovar multipurpose projects have been pending approval of the Government of India for a considerable amount of time. The States of Madhya Pradesh and Gujarat have been particularly concerned and have been pressing for their clearance. The main issues of environmental concern related to the rehabilitation of the affected population, compensatory afforestation, treatment of the catchment area, command area development, pertaining particularly to drainage, water logging and salinity. The said note mentioned that the Department of Environment and Forests had sent a note with the approval of the Minister for Environment and Forests and had recommended conditional approval to the Narmada Sagar and Sardar Sarovar Projects subject to three conditions: i) Review of design parameters to examine the feasibility of modifying the height of the dam; ii) Preparation in due time, detailed and satisfactory plans for rehabilitation, catchment area treatment, compensatory afforestation and command area development; iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistry of Environment and Forests gave its clearance to the setting up of Inter-Ministerial Committee and on 8th April, 1987, following note was prepared and forwarded to the Prime Minister. This case has got unduly delayed. P.M. was anxious that speedy action should be taken. As such, since the Ministry of Environment have given its clearance subject to setting up of an Inter-Ministerial Committee as indicated at 'A' above, we may give the necessary clearance. The three Chief Ministers may be requested to come over early next week to give their clearance in principle for the setting up of a River Valley Authority so that simultaneous action can be initiated for giving practical shape to this concept. The clearance of the project, however, should be communicated within two weeks as I have been informed by Shri Shiv Shanker and Shri Bhajan Lal that interested parties are likely to start an agitation and it is better if clearance is communicated 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 Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him for clearing the project, it was stated that there was apprehension about the environment and ecological factors and also about the needs of the tribal people. The Prime Minister was requested "to clarify to the people of Gujarat whether or not these aspects have finally been cleared or not and all the doubts on this front have been finally set at rest or not". On 4th May, 1987 the Prime Minister replied to this letter in which it was stated as follows: There should be no grounds for any misunderstanding in this regard. The Narmada Project has been cleared while at the same time ensuring that environmental safeguards will be enforced and effective measures taken for the rehabilitation of the tribals. You could ask the Ministry of Water Resources or the State Government for details. Lastly, we need make reference to a letter dated 10th June, 1987 written by Smt. Chandraben Sureshbhai Shrimali, 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 Narma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be completed within a stipulated time frame. According to the Government of Gujarat, the conditions imposed in the environmental clearance granted on June 24, 1987 were: (a) The NCA would ensure that the environmental safeguard measures are planned and implemented pari passu with the progress of work on the project. (b) The detailed survey/studies assured will be carried out as per the schedule proposed and details made available to the department for assessment. (c) The catchment area treatment program and rehabilitation plans be so drawn so as to be completed ahead of reservoir filling. (d) The department should be informed of progress on various works periodically. It was further submitted by the Government of Gujarat that none of these conditions were linked to any concrete time frame. (a) The first condition casts 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 ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion of time as above is at all necessary. After a detailed discussion in the last NCA meeting on 25th July, 1992, it has been decided that NCA should clearly indicate the additional time required for the completion of the remaining studies like flora and fauna and some aspects of fisheries and a revised action plan based thereon be also sent expeditiously. X X X X X X Keeping in view the fact and circumstances mentioned above, I request you to kindly agree to the schedule of the studies and the follow up actions as presented here. A brief account of the action plan together with bar charts are enclosed, presenting a pictorial view. On 15th December, 1992, a letter was written to the Secretary, Ministry of Environment and Forests, more particularly stating as 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 clos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development; (iv) survey of flora, fauna etc. (v) are heological and anthropological survey; (vi) Seism city and rim stability of reservoir (vii) health aspects and (viii) fisheries development of SSP and NSP reservoirs. 123. Sh. Shanti Bhushan in the course of his submissions referred to the report of the Morse Committee in support of his contentions that the project was flawed in more ways than one. 124. The Morse Committee was constituted, as already noted, by the World Bank. Its recommendations were forwarded to the World Bank. Apart from the Criticism of this report from other quarters, the World Bank itself, did not accept this 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 mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the status reports and studies regarding the command area development, it was submitted that there was need for some independent agency to examine the various studies, action plans and the experience and to see whether there was ground to believe that the proposed measures will work or not. It was contended that master plan for drainage and command area development was still not in place and even the fullstudies had not been done. 127. While refuting the aforesaid contentions it was argued on behalf of learned Counsel for the respondents that the SSP will provide irrigation water for a cultivable 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 imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is concerned, with the filling of reservoir. Even though the filling of the reservoir started in 1994, the impoundment Award was much less than the catchment area treatment which had been affected. The status of compliance with respect to pari passu conditions indicated that in the year 1999, the reservoir level was 88.0 meter, the impoundment area was 6881 hectares (19%) and the area where catchment treatment had been carried out was 128230 hectares being 71.56% of the total work required to be done. The Minutes of the Environmental 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igam Limited issued an approach paper on environmental impact assessment for the river reach downstream. This provided technical understanding of the likely hydrological changes and possible impact in relation thereto. It was further submitted by learned Counsel for the respondents that the potential for environmental changes in the lower river and estuary had to be seen in the context of the long term development of the basin. The current stage was clearly beneficial. The three stages could be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to the State of Gujarat, the Ancient Monuments and are haeological Sites and Remains Act, 1958 charged the Central and/or State Department of are haeology with responsibility for the protection of important cultural sites. Under the Act, sites were classified into three categories as follows: Type 1: Monuments of national importance which are protected by the Central Government; Type 2: monuments 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, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 141. In relation to flora and fauna studies, it was contended by the petitioners that the studies had finished only recently and the action plans were awaited in many cases. In the meanwhile, extensive deforestation of the submergence zone had taken place, as also part of the area had been submerged, even as the studies have 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pects contained in the Morse Committee Report. Lastly the Five Member Group in its first report was critical in many respects and pointed out studies which had remained incomplete but no cognizance was taken by the Ministry of Environment and Forests. The repeated abdication, it was submitted, of the 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 feel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Though later on a letter of intent had been received by the said company, the Pollution Control Board did not give its no-objection certificate to the location of the industry at the site proposed by it. The Pollution Control Board, while rejecting the application for consent, inter alia, stated that the unit was a polluting industry which fell under the red category of polluting industry and it would not be desirable to locate such an industry in the catchment area of Himayat Sagar, a lake in Andhra Pradesh. The appeal filed by the company against the decision of the Pollution 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 'precautiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent means what type or extent of development can take place which can be sustained by nature/ ecology with or without mitigation. 151. In the present case we are not concerned with the polluting industry which is being established. What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry. The construction of a dam undoubtedly would result in the change of environment but it will not be correct to presume that the construction of a large dam like the Sardar Sarovar will result in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrounding areas was also known. Various studies relating to environmental impact, some of which have been referred to earlier in this judgment, had been carried out. There are different facets of environment and 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 brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance with the procedure hereinafter specified in this notification. This notification is clearly prospective and inter alia prohibits the undertaking of a new project listed in Schedule 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 Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there are many persons left out of the Government list of declared PAFs. These are joint holders [non recognised as landed oustees or PAFs] and the adult 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission is that no specific rehabilitation village, as envisaged by the Tribunal's Award, has been established in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resettlement of the oustees should be made one year in advance of submersion. In B.D. Sharma 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 don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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% whereas in the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 with the requirement of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 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 genuine PAFs were earlier left out (as many stayed in remote areas or used to undertake seasonal migration to town ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sures 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 festivals, religious rights, rights of passage, presence of priests, shaman, kinsmen, clansmen etc. Special consideration for the preservation of holistic nature of the culture. Proper use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 raised to 85 meters, the R&R Sub-group had permitted the same to be raised to EL 69 meter only during that period to match the R&R activity. It was in the meeting of R&R Subgroup on 6th January, 1999 after the R&R Sub-group had reviewed the progress an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 per their choice so that they could restart their business. In Maharashtra out of 3213 affected families, not a single family was stated to fall under this category. Amongst the affected families of Madhya Pradesh, the figure of such non-agriculturists family was also stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ike 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 wise re-settlement, therefore, cannot derive support from the above quoted stipulation. Besides, the norms referred to in the stipulation relate to provisions for civic amenities. They vary as regards each civic amenity vis-a-vis the number of oustees families. Thus, one panchayat ghar, one dispensary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh 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 as soon as possible and in that case they will be able to take three crops in one year as their land is in the command area." Whereas the conditions in the hamlets, where the tribals lived, were not good enough the rehabilitation package ensured more basic facilities and civic amenities to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 not to be regarded as an independent authority. Of course some of the members are Government officials but apart from the Union of India, the other States are also represented in this Authority. The project is being undertaken by the Government and it is for the Governmental authorities to execute the same. With the est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehabilitation. 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 sites and furnish the report of development and progress made in the matter of rehabilitation. The Rehabilitation Committee headed by the Secretary, Government of India, Ministry of Social Justice and Empowerment and having representatives of the three State Governments as its members had been constituted. It is the case of the Union of India that this Committee visited regularly the various R&R site ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssal 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 substantial compliance with the terms of the Award and the rehabilitation package. 212. In its Fourth Report dated 15.11.1999, the Grievances Redressal Authority observed "pursuant to the grievances redressal measures taken by GRC, whose approach is positive and grievance redressal oriented, a considerable number of grievances have been resolved by extensive land improvement work done on agricultural land at different sites within a period of six months i.e. April-Septembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 before the District Collector who is required to dispose off the same within a period of three months. In the case of Madhya Pradesh also by Notification dated 30th March, 2000 the Government of Madhya Pradesh has constituted a Grievances Redressal Authority similar to the one in Gujarat with Mr. Justice Sohni, retired Chief Justice of Patna High Court as its Chairman. INDEPENDENT MONITORING & EVALUATION AGENCIES 218. The Monitoring and Evaluation of the rehabilitation programme is also being carried out by the independent socio-anthropological agencies app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 filed and, in response thereto, the petitioners have also filed an affidavit 225. On behalf of the State of Gujarat the affidavit of Sh. V.K. Babbar, Commissioner (Rehabilitation) and Chief Executive Officer, Sardar Sarovar Punavasvat Agency [SSPA] has been filed, according to which at FRL 138.68 m. the status with regard to PAFs to be re-settled is stated to be as follows: 226. It is the case of State of Gujarat that 8565 PAFs have been accommodated in 182 R&R sites fully equipped with the requisite civic amenities as provided by the Tribunal's award. The agricultural land allotted to these PAFs is 16973 hectare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 approximately 2.2 hectares. For planning purposes in respect of 10765 PAFs the land requirement would be about 23700 hectares. As against this requirement the status of land, as per the said affidavit, under different categories with the Government of Gujarat is stated to be as under: Image 1 It is averred that between March and 21 st June 2000 the land in possession as well as the land identified has increased considerably. 231. It has also been explained in the said affidavit that the Government of Gujarat has a well-established practice of procuring land for R&R at realistic market prices for willing sellers. Officers hold discussions with prospective sellers, v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 towards the land purchased for R&R etc. 233. The affidavit also gives facts and figures showing that all requisite civic amenities have been developed and made available at the R&R sites. Some of the salient features which are highlighted in this behalf are as under: A three-room primary school is provided in all MP/MH sites irrespective of the number of families resettled. A dispensary with examination room, medical equipment, medicines is provided in all MP/MH sites irrespective of the number of resettled families. PAFs (86%) out of the total MP/ MH PAFs resettled in Gujarat have availed of the ₹ 45,000 financial assistance and built pucca core houses. Overhead tanks for drinking water are provided in large R&R sites. At th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rehabilitation activities such as conducting training classes. PAFs are being covered by the ongoing developmental schemes of the Government (DRDA, Tribal Sub Plan etc.) An Extension (Agriculture) officers has been appointed for approximately every 150 families to guide them in agriculture operation and assist them in day to day problems (getting ration cards, khedut khatava his etc.) In recent years focus is on empowering the PAFs and making them self dependent. 236. Medical cell has been set up for providing services and treatment to PAPs free of cost. The cell is headed by Deputy Director (Medical) and is having a nucleus of medical experts consisting of a physician, a pediatrician, a gynecologist, 21 MBBS doctors, pharmacists etc. The salient features of the medical help programme for the benefit of PAPs is stated to be as follows: The Medical Officers an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks 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 during 1999-2000 by planting 3500 saplings which are protected by bamboo tree-guards. Plantation is done along the roadside, common plots, school premises etc. In the remaining sites plantation work is undertaken by NGOs. 238. At the instance of GRA an educational cell has been set up in the SSPA. The main function of which is to improve the quality of education imparted and to improve the school enrolment. The salient features of this cell are as under: School enrolment which was 4110 in 1998-99, increased to 4670 in 1999-2000. Out of the 4670 students enrolled, 2126 were girls (46.3%). The number of schools is 170 and the number of teachers in 384. In the last academic year, 66 schools were upgraded by increasing the number of classes. SSPA is regularly sending the teachers for in-service training. So far 120 teachers have been imparted training. Every year during the period of June to August, a special drive is taken to increase the school enrolment. In the current year 150 adult ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that along with the said affidavit Sh. V.K. Babbar, again under the directions of the GRA, has given an undertaking to this Court, which reads as follows:- 1. As per this undertaking, inter alia, in respect of scattered pieces or parcels of lands in possession of the SSPA for R&R which do not add upto a contiguous block of 7 hectares by themselves or in conjunction with other lands steps will be taken to purchase or acquire contiguous lands so that the said small pieces of land become a part of continuous block of 6 hectares or more. This exercise will be undertaken and completed on or before 31st December, 2000. In case it is not possible to have a contiguous block of minimum of 6 hectares further directions will be sought from GRA or such piece or parcel of land will be put to use for other public purposes relating to R&R but which may not have been provided for in the NWDT award. 2. Henceforth, the land which is acquired or purchased for R&R purposes shall be contiguous to each other so as to constitute a compact block of 6 hectares. 3. Henceforth land to be purchased for R&R will be within a radius of 3 kms. from an existing or proposed new site and if there is a departur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iwari, Director (TW), Narmada Valley Development Authority has been filed. It is stated therein that with a view to arrange resettlement of the PAFs to be affected at different levels detailed instructions to the Field Officers of the submergence area were issued by Sh. Tiwari vide letter dated 20th May, 2000 in respect of all the aspects of resettlement of the PAFs. This is related to identification of land, processing of land acquisition cases and passing of the Award, taking of PAFs to Gujarat for selection of land, allotment of land to the PAFs who decide to remain in Madhya Pradesh and development of sites. There are 92 sites for re-settlement of the PAFs which are required to be established and out of these 18 are stated to be fully developed, development in 23 sites is in progress, 18 sites are such where location has been determined and land identified but development work has not started and 33 sites are such where location of land for the development is to be decided by the task force constituted for this purpose. 244. Dealing specifically with the states of PAFs to be affected at different levels this affidavit, inter alia, states that with regard to PAFs to be affected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uite different from that of Gujarat. There seems to be no hurry in taking steps to effectively rehabilitate the Madhya Pradesh PAFs in their home State. It is indeed surprising that even awards in respect of six villages out of 33 villages likely to be affected at 90 mtr. dam height have not been passed. The impression which one gets after reading the affidavit on behalf of the State of Madhya Pradesh clearly is that the main effort of the said State is to try and convince the PAFs that they should go to Gujarat whose rehabilitation package and effort is far superior to that of the State of Madhya Pradesh. It is, therefore, not surprising that vast majority of the PAFs of Madhya Pradesh have opted to be re-settled in Gujarat but that does not by itself absolve the State of Madhya Pradesh of its responsibility to take prompt steps so as to comply at least with the provisions of the Tribunal's Award relating to relief and rehabilitation. The State of Madhya Pradesh has been contending that the height of the dam should be lowered to 436 ft. so that lesser number of people are dislocated but we find that even with regard to the rehabilitation of the oustees at 436 ft. the R&R progr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. CONCLUSION 249. Water is one element without which life cannot sustain. Therefore, it is to be regarded as one of the primary duties of the Government to ensure availability of water to the people. 250. There are only three sources of water. They are rainfall, ground water or from river. A river itself gets water either by the melting of the snow or from the rainfall while the ground water is again dependent on the rainfall or from the river. In most parts of India, rainfall takes place during a period of about 3 to 4 months known as the Monsoon Season. Even at the time when the monsoon is regarded as normal, the amount of rainfall varies from region to region. For example, North-Eastern States of India receive much more rainfall than some of other States like Punjab, Haryana or Rajasthan. Dams are constructed not only to provide water whenever required but they also help in flood control by storing extra water. Excess of rainfall causes floods while deficiency thereof results in drought. Studies show that 75% of the monsoon water drains into the sea after flooding a large land area due to absence of the storage capacity. According to a study conducted by the Central Water ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unduly delayed, it is at the same time expected that as thorough a study as is possible will be undertaken before a decision is taken to start a project. Once such a considered decision is taken, the proper execution of the same should be taken expeditiously. It is for the Government to decide how to do its job. When it has put a system in place for the execution of a project and such a system cannot be said to be arbitrary, then the only role which a Court may have to play is to see that the system works in the manner it was envisaged. 254. A project may be executed departmentally or by an outside agency. The choice has to be of the Government. When it undertakes the execution itself, with or without the help of another organisation, it will be expected to undertake the exercise according to some procedure or principles. The NCA was constituted to give effect to the Award, various sub-groups have been established under the NCA and to look after the grievances of the resettled oustees and each State has set up a Grievance Redressal Machinery. Over and above the NCA is the Review Committee. There is no reason now to assume that these authorities will not function properly. In our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions. 258. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the Court does not transgress its jurisdiction. There is in our Constitutional frame-work a fairly clear demarcation of powers. The Court has come down heavily whenever the executive has sought to impinge upon the Court's jurisdiction. 259. At the same time, in exercise of its enormous power the Court should not be called upon or undertake governmental duties or functions. The Courts cannot run the Government nor the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the Constitution casts on it a great obligation as the sentinel to defend the values of the Constitution and rights of Indians. The courts must, therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the Court will not interfere. When there is a valid law requiring the Government to act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill also help in checking the advancement of the Thar Desert. Human habitation will increase there which, in turn, will help in protecting the so far porous border with Pakistan. 263. While considering Gujarat's demand for water, the Government had reports that with the construction of a high dam on the river Narmada, water could not only be taken to the scarcity areas of Northern Gujarat, Saurashtra and parts of Kutch but some water could also be supplied to Rajasthan. 264. Conflicting rights had to be considered. If for one set of people namely those of Gujarat, there was only one solution, namely, construction of a dam, the same would have an adverse effect on another set of people whose houses and agricultural land would be submerged in water. It is because of this conflicting interest that considerable time was taken before the project was finally cleared in 1987. Perhaps the need for giving the green signal was that while for the people of Gujarat, there was no other solution but to provide them with water from Narmada, the hardships of oustees from Madhya Pradesh could be mitigated by providing them with alternative lands, sites and compensation. In governance of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is low. It is a fact that people are displaced by projects from their ancestral homes. Displacement of these people would undoubtedly disconnect them from their past, culture, custom and traditions, but then it becomes necessary to harvest a river for larger good. A natural river is not only meant for the people close by but it should be for the benefit of those who can make use of it, being away from it or near by. Realising the fact that displacement of these people would disconnect them from their past, culture, custom and traditions, the moment any village is earmarked for take over for dam or any other developmental activity, the project implementing authorities have to implement R&R programmes. The R&R plans are required to be specially drafted and implemented to mitigate problems whatsoever relating to all, whether rich or poor, land owner or encroacher, farmer or tenant, employee or employer, tribal or non-tribal. A properly drafted R&R plan would improve living standards of displaced persons after displacement. For example residents of villages around Bhakra Nangal Dam, Nagarjun Sagar Dam, Tehri, Bhillai Steel Plant, Bokaro and Bala Iron and Steel Plant and numerous othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round. 270. So far a number of such river valley projects have been undertaken in all parts of India. The petitioner has not been able to point out a single instance where the construction of a Dam has, on the whole, had an adverse environmental impact. On the contrary the environment has improved. That being so there is no reason to suspect, with all the experience gained so far, that the position here will be any different and there will not be overall improvement and prosperity. It should not be forgotten that poverty is regarded as one of the causes of degradation of environment. With improved irrigation system the people will prosper. The construction of Bhakra Dam is a shining example for all to see how the backward area of erstwhile undivided Punjab has now become the granary of India with improved environment than what was there before the completion of the Bhakra Nangal project. 271. The Award of the Tribunal is binding on the States concerned. The said Award also envisages the relief and rehabilitation measures which are to be undertaken. If for any reason, any of the State Governments involved lag behind in providing adequate relief and rehabilitation then the proper c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs. 275. Water is being made available by the State of Rajasthan through tankers to the civilians of these areas once in four days during summer season in quantity, which is just sufficient for their survival. The districts of Barmer and Jalore are part of 'Thar Desert' and on account of scarcity of water the desert area is increasing every year. It is a matter of great concern that even after half a century of freedom, water is not available to all citizens even for their basic drinking necessity violating the human right resolution of U.N.O. and Article 21 of the Constitution of India. Water in the rivers of India has great potentiality to change the miserable condition of the arid, drought-prone and border areas of India. 276. The availability of drinking water will benefit about 1.91 lac of people residing in 124 villages in arid and drought-prone border areas of Jalore and Banner districts of Rajasthan who have no other source of water and are suffering grave hardship. 277. As already seen, the State of Madhya Pradesh is ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fting and rehabilitating the oustees of a reservoir. 279. There is and has been in the recent past protests and agitations not only against hydel projects but also against the setting up of nuclear or thermal power plants. In each case reasons are put forth against the execution of the proposed project either as being dangerous (in case of nuclear) or causing pollution and ecological degradation (in the case of thermal) or rendering people homeless and posses adverse environment impacts as has been argued in the present case. But then electricity has to be generated and one or more of these options exercised. What option to exercise, in our Constitutional framework, is for the Government to decide keeping various factors in mind. In the present case, a considered decision has been taken and an Award made whereby a high dam having an FRL of 455 ft. with capability of developing hydel power to be constructed. In the facts and circumstances enumerated hereinabove, even if this Court could go into the question, the decision so taken cannot be faulted. DIRECTIONS 280. While issuing directions and disposing of this case, two conditions have to be kept in mind, (i) the completion of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (7) The NCA will within four weeks from today draw up an Action Plan in relation to further construction and the relief and rehabilitation work to be undertaken. Such an Action Plan will fix a time frame so as to ensure relief and rehabilitation pari passu with the increase in the height of the dam. Each State shall abide by the terms of the action plan so prepared by the NCA and in the event of any dispute or difficulty arising, representation may be made to the Review Committee. However, each State shall be bound to comply with the directions of the NCA with regard to the acquisition of land for the purpose of relief and rehabilitation to the extent and within the period specified by the NCA. (8) The Review Committee shall meet whenever required to do so in the event of there being any un-resolved dispute on an issue which is before the NCA. In any event the Review Committee shall meet at least once in three months so as to oversee the progress of construction of the dam and implementation of the R&R programmes. If for any reason serious differences in implementation of the Award arise and the same cannot be resolved in the Review Committee, the Committee may refer the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... economy was largely based on agriculture, over the years the realisation had dawned that river valley projects had their due quota of positive and adverse impacts which had to be carefully assessed and balanced for achieving sustained benefits. Therefore, it had been decided in the late 70s that all river valley projects should be subjected to a rigorous assessment of their environmental impact so that necessary imitative measures could be duly incorporated therein at the inception stage. The Guidelines set out the procedure to be adopted for carrying out environmental impact assessments. In the Chapter headed Relevance of Environmental Aspects for River Valley Development Projects, the Guidelines stated, "Concern for environmental pollution is rather a recent phenomenon which has been triggered mainly by the backlash effect of accelerated industrial growth in the developed countries. The two major criteria - the project should maximise economic returns and it should be technically feasible - are no longer considered adequate to decide the desirability or even the viability of the project. It is now widely recognised that the development effort may frequently produce not only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng areas; Land-use pattern in the area with details of extent & type of forest; Pre-impoundment survey of fish habitat and nutrients levels; Ground water level, its quality, and existing water use pattern; Mineral resources, including injurious minerals, in the impoundment; Living conditions of affected tribal/aboriginals etc. The cost of proposed remedial and imitative measures to protect the environment had to be included in the project cost. imitative measures included, among other things, compensatory afforestation. Only when the incorporation of environmental aspects in the project planning was made a part and parcel of all river valley projects would there be hope to protect and preserve "our natural environment and fulfil the objective of rapid economic development on the sustained basis while safeguarding the natural resources including the air, water, land, flora and fauna for the benefit of present and future generations." The necessary data that was required to be collected for impact assessment was set out in the Guidelines. A chart of the impact assessment procedure was also contained in the Guidelines. 286. It appears, that, though it ought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad 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 possibility of soil erosion from the catchment leading to excessive salutation of the reservoirs, it said, "Extent of critically degraded area needing treatment to be identified". Specifically in respect of the Sardar Sarovar Project, the Note said that for the area to be submerged in Maharashtra, the Maharashtra Government had proposed compensatory afforestation over an area of 6490 hectares and the Madhya Pradesh was preparing an action plan to reforest about 5500 hectares of the denuded forest in the impact area. In respect of fauna, the Note said that the Narmada Sagar Project authorities had commissioned a wildlife census of the areas by the Zoological Survey of India and were negotiating terms with the Indian Institute of Wildlife Management, Dehradun, for carrying out detailed wildlife studies for re-location purposes. They proposed to undertake all necessary steps to minimise the adverse impact of the Project on wildlife. Gujarat and Maharashtra were also taking similar action with the help ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of affected population, and remedial or re-location measures for planned species, wildlife, etc., formulated; the responsibility for their implementation clearly identified; and then the projects should be given a clearance from the environmental and forest angles. This will mean a postponement of the clearance of projects by about 3 years. (ii) The other option is that the projects should be given the necessary clearance now, with clear conditions and stipulations in regard to the actions to be taken on the various environmental aspects and appropriate monitoring arrangements to ensure that the actions are taken in a time-bound manner. 13.2 The arguments against a postponement of clearance by three years are very strong. The postponement of the decision at this stage seemed, to the writers of Note, "scarcely conceivable". A postponement would lead to substantial increases in project costs and the benefits expected from the projects would be delayed. Also the work that had already been done would be rendered infructuous. The deferment of clearance by three years would put the organisational set-up that had been built up into a state of uncertainty, retard the mom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prime Minister on 20th November, 1986. Insofar as catchment area treatment was concerned, it concluded that it was certain that the catchment area treatment programme could not be realistically formulated and assessed for at least another three years. Therefore, it was premature to comment on the efficacy or otherwise of the catchment area treatment programme which was still to be formulated. The action programme for Command area development was yet to be made available. The lining of the canal network and the digging of tubewells in the Command could not be considered to be adequate. A lot of field work and planning was needed to be done to arrive at a workable and effective Command area development programme. As to compensatory afforestation, the land for the same was yet to be identified and procured before it could be evaluated for the purpose. In regard to the loss of flora and fauna, the following studies were considered absolutely essential to determine the adequacy or otherwise of the left over habitat to sustain wildlife: A wildlife census of the area" (ZSI will take atleast 2-3 years to complete the survey): (i) Preparation of a Master Plan showing all protected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tchment area treatment, Command area development, compensatory afforestation and the loss of flora and fauna. It explained the then status of each of these aspects in terms of availability of data and plans and the readiness to execute them. It said that other components of the environmental aspect like the higher incidence of water borne diseases and loss of mineral reserves were important but were not dealt with in detail in the note. It stated that in respect of catchment area treatment, the requirement was of demarcation of critically degraded areas on the basis of aerial photographs, satellite imagery and ground checks; creation of a chain of nurseries of suitable species for biological treatment of the catchment area; and preparation of phased action programme for biological and engineering treatment of the degraded catchment area. Considering that catchment area treatment on an intensive scale was imperative, both to reduce silt load and to maintain ecological balance, and keeping in view the fact that the interpretation of the aerial photographs and satellite imagery would take at least one year for completion, to be followed by ground truth checks; the detailed land and so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e: A wildlife census of the area (ZSI will take at least 2-3 years to complete the survey); Preparation of a Master Plan showing all protected areas i.e. National Parks, Wildlife Reserves, Reserve and Protected Forests, etc. on which should be superimposed the areas cannot be taken up for various reservoirs, roads, canals, settlement colonies, etc.; Study of the carrying capacity of the surrounding areas where the wildlife from the submergence area will disperse. These studies are considered specially important in the case of NSP. The work initiated by BSI and ZSI at the request of the Project Authorities will be completed only by 1989. The other studies have not yet been initiated. Under the circumstances, it is not possible to assess the impact of the loss of habitat on the wildlife and the overall loss of biological diversity and genetic reserves. Even if one were to assume that the forests to be destroyed do not contain genetic resources, which in any case cannot be valued, the simple loss of these forests would have on environmental cost estimated at several thousand crores of Rupees as per norms developed by FRL. The environmental cost is thus colossal. The Note co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled meetings with the State Governments revealed that they were seriously undertaking surveys, land identification and preparation of a rehabilitation plan, of which the first phase was more or less ready. The catchment area treatment preparation would take time. A compensatory afforestation programme could be chalked out without difficulty. The issue was whether detailed plans should be made fully ready before giving environmental clearance or whether there could be a conditional clearance so that the Project could start. The Secretary to the Prima Minister had discussed the matter with the Secretary, Water Resources and the Secretary, Environment and Forests and it had been agreed that clearance might be given on the following conditions: Preparation in due time of detailed and satisfactory plans for rehabilitation, catchment area treatment, compensatory afforestation and Command Area Development. Setting up of Narmada Management Authority with adequate powers and teeth to ensure that environmental management plans are implemented pari passu with engineering and other works. Below the aforesaid Note, the Secretary to the Prime Minister sought his approval to conditional cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out as per the schedule proposed and details made available to the Department for assessment. ii. The Catchment Area Treatment programme and the Rehabilitation plans be so drawn as to be completed ahead of reservoir filling. iii. The Department should be kept informed of progress on various works periodically. 6. Approval under Forest (Conservation) Act, 1980 for diversion of forest land will be obtained separately. No work should be initiated on forest area prior to this approval. 7. Approval from environmental and forestry angles for any other irrigation, power or development projects in the Narmada Basin should be obtained separately. 293. Even in 1987, when the environmental clearance to the Project was given, it had been found necessary by the Union of India to rigorously assess the environmental impact of river valley projects. This was to determine whether the uniqueness of the natural resources, like wildlife, flora and the genetic pool in the region, demanded its exclusive earmarking for that purpose, in which event the river valley project would not be accorded clearance. Even otherwise, it was imperative to consider the Project's environmental aspects, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rying capacity of surrounding area, Seism city and health aspects; field surveys had yet to be completed and complete details had been assured by 1989. Clearly, therefore, the necessary particulars in regard to the environmental impact of the Project, as required by the Guidelines, were not available when the environmental clearance was given, and it, therefore, could not have been given. 296. The conditions upon which the environmental clearance was given were that detailed surveys and studies would be carried out and the Narmada Control Authority, whose terms of reference had been amplified, would ensure that "environmental safeguard measures" were planned and implemented pari passu with the progress of work on the Project. No further assessment of the environmental impact of the Project was contemplated by the environmental clearance, nor, indeed, was it ever carried out. 297. What the environmental safeguards measures the Narmada Control Authority was to ensure were, and what their cost would be, was not known when the environmental clearance was given. There was, therefore, no way in which this cost could be included in the cost of the Project, which was a requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Environment and Forests, as it would ordinarily have been done, makes no difference at all. Under its own policy, as indicated by the Guidelines, the Union of India was bound to give environmental clearance only after a) all the necessary data in respect of the environmental impact of the Project had been collected and assessed; b) the assessment showed that the Project could proceed; and c) the environmental safeguard measures, and their cost, had been worked out. 301. An adverse impact on the environment can have disastrous consequences for this generation and generations to come. This Court has in its judgments on Article 21 of the Constitution recognised this. This Court cannot place its seal of approval on so vast an undertaking as the Project without first ensuring that those best fitted to do so have had the opportunity of gathering all necessary data on the environmental impact of the Project and of assessing it. They must then decide if environmental clearance to the Project can be given, and, if it can, what environmental safeguard measures have to be adopted, and their cost. While surveys and studies on the environmental aspects of the Project have been carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or technical professional with wide managerial experience. 3. The representative of IAA will act as Member-Secretary. 4. Chairman and members will serve in their individual capacities, except those specifically nominated as representatives. 5. The membership of a Committee shall not exceed 15. The Environmental Impact Agency of the Union Ministry of Environment and Forests shall now appoint a committee of experts composed of experts in the fields mentioned in Schedule III of the notification and that committee of experts shall assess the environmental impact of the Project as stated above. 303. When the writ petition was heard at the admission stage, this Court was most concerned about the distressing state of the relief to and rehabilitation of those ousted on account of the Project. The proper implementation of relief and rehabilitation measures was the aim of the Court at that time; but it was not contemplated that the other issues in the writ petition would not to be considered at the stage of its final hearing. 304. The many interim orders that this Court made in the years in which this writ petition was pending show how very little had been done in regard to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in monetary or other terms on this account. 308. When the writ petition was filed the process of relief and rehabilitation, such as it was, was going on. The writ petitioners were not guilty of any laches in that regard. In the writ petition they raised other issues, one among them being related to the environmental clearance of the Project. Given what has been held in respect of the environmental clearance, when the public interest is so demonstrably involved, it would be against public interest to decline relief only on the ground that the Court was approached belatedly. 309. I should not be deemed to have agreed to anything stated in Brother Kirpal's judgment for the reason that I have not traversed it in the course of what I have stated. 310. In the premises, (1) The Environmental Impact Agency of the Ministry of Environment and Forests of the Union of India shall forthwith appoint a Committee of Experts in the fields mentioned in Schedule III of the notification dated 27th January, 1994, called the Environmental Impact Assessment Notification, 1994. (2) The Committee of Experts shall gather all necessary data on the environmental impact of the Project. They shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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