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CASE NO.:

Writ Petition (civil) 295 of 1992

PETITIONER:

N.D. JAYAL AND ANR.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT: 01/09/2003

BENCH:

S. RAJENDRA BABU & D.M. DHARMADHIKARI & G.P. MATHUR

JUDGMENT:

JUDGMENT

2003 Supp(3) SCR 152

The Judgments of the Court were delivered by RAJENDRA BABU, J. :

WRIT PETITION NO. 295 OF 1992 :

The present petition under Article 32 of the Constitution of India is the

second round of legal action connected to the safety and environmental

aspects of Tehri Dam before this Court.

The petitioners herein firstly urge us to issue necessary directions to

conduct further safety tests so as to ensure the safety of the dam.

Secondly, they allege that the concerned authorities have not

correspondingly complied with the conditions attached to the Environmental

Clearance dated July 19, 1990 and want us to halt the Project till the same

is complied with. Lastly, they want us to look into the Rehabilitation

aspects. Subsequent to the filing of this petition few others joined as

interveners. String of Affidavits, counter-affidavits and other documents

disclosing the minutest details have been presented. Oral submissions on

both sides have been addressed at length.

Before adverting to the contentions of safety, environmental clearance and

rehabilitation, it is necessary to draw a demarcating line between the

realm of policy and the permissible areas for judicial interference in the

context of present case. For this, a brief factual survey is warranted.

This is also necessary to appreciate the broader issues advanced before us.

Investigation for the purpose of construction of a dam at Tehri for hydel

power generation was commenced as early as in 1961. In the year 1972, the

Planning Commission envisaged a cost of Rs. 197.92 crores and in 1976,

administrative clearance to the Project was given by the Government of U.P.

In March 1980, a direction was issued by the then Prime Minister for an in-

depth review of the whole project. Consequently, an Expert Group was

constituted by the Ministry of Science and Technology. The Prime Minister's

note on the file reads as follows:

"There are several proposals which were agreed to earlier but would need to

be looked into again. Amongst them are Silent Valley, the dam in Tehri

Garhwal and the dam in Lalpur, Gujarat. It seems that larger areas of very

fertile land are being submerged without any commensurate gains. There may

be other such cases also. It is true that these decisions have been taken

over a period of time but there is great local distress and a feeling that

contractors and other such groups will be the main gainers. Hence, it is

necessary to have another look in depth."

In May 1980, an interim report was submitted by the Expert Group and the

final report was submitted in August 1986. Even though an expenditure of

Rs. 206 crores has been incurred, the Expert Committee recommended to

abandon the project. Ministry of Environment and Forest (MoEF) accepted the

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report in October 1986 and endorsed the view of the Expert Committee. In

November 1986, the erstwhile USSR offered administrative, technical and

financial assistance on a turnkey basis and the Tehri Project was revived

as recipient of such aid. In November 1986, a Protocol was signed with USSR

for providing technical and financial assistance for this project to the

tune of 1000M Roubles. Thus the need to obtain environmental clearances

even in the absence of Environmental Action Plans became urgent so as to

quickly complete all administrative and technical formalities. In January

1987, the Government announced in the Press that it has cleared the project

after a thorough assessment of the impact of the project on environment and

after satisfying themselves that the adverse impact on environment can be

remedied. A general agreement was signed in Moscow and it was decided that

the dam construction would be carried out jointly by Soviet and Indian

Engineers. Thereafter, the project, which was initially executed by the

Irrigation Department of the Government of U.P. has been taken over by the

joint venture company of the Government of India and the Government of U.P.

The company was called Tehri Hydro Development Corporation Ltd (THDC). In

July 1989, MoEF revised cost estimates and released further funds,

conditional to its prior environmental clearance. Accordingly, THDC

formulated Environment Action Plans for consideration and assessment by

MoEF. In February 1990, the Environmental Appraisal Committee, MoEF

concluded that the Tehri Dam Project, as proposed, should not be taken up

as it does not merit environmental clearance. Subsequently, On July 19,

1990, conditional clearance to the project was given by MoEF. It was

specifically provided that completion of status, formulation of action

plans and their implementation will be scheduled in such a manner that

their execution is pari-passu with the construction, failing which the

engineering works would be brought to a halt and this condition will be

enforced among others under the provisions of the Environment Protection

Act, 1986.

The petitioners raised the question before us that when a decision had been

taken in 1990 to abandon the project as to how clearance could be given on

July 19, 1990? Again they pointed out that on 21.10.1994 serious

consequences of the implementation lagging behind was taken note of but the

project was allowed to continue.

From the narration of various events set out earlier, it is clear that even

by August 1986 an expenditure of Rs.206 crores had been incurred for the

construction of the dam. It is after the THDC Action Plans for

consideration and assessment by MoEF have been submitted. These were

considered on two occasions: firstly, in February 1990 and again on July

19, 1990 and it is thereafter the conditional clearance was given. It is

contended that the environmental clearance which was granted on July 19,

1990 is without proper application of mind and, therefore, the dam

construction should not be allowed to proceed. The law on this aspect has

been clearly set out in the decision of this Court in Narmada Bachao

Andolan v. Union of India, [2000] 10 SCC 664. As in the present case, in

the case of Sardar Sarovar Project also, four identical conditions were

imposed and they are as under:

"(i) NCA will ensure that environmental safeguard measures are planned and

implemented pari-passu with progress of work on project.

(ii) The detailed surveys' studies assured will be carried out as per the

schedule proposed and details made available to the Department for

assessment.

(iii) the catachment area treatment programme and the rehabilitation plans

be so drawn as to be completed ahead of reservoir filling.

(iv) The Department should be kept informed of progress on various works

periodically."

The effect of grant of clearance subject to pari-passu conditions has also

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been examined by this Court in Sardar Sarovar Project's case. It has been

noticed therein that there are three stages with regard to the undertaking

of an infrastructural project - the first of which is the conception or

planning, second is decision to undertake the project and the third is the

execution of the project. The conception and the decision to undertake a

project has to be regarded as a policy decision.

In Sardar Sarovar Project case it was also held that when two or more

options are possible and the Government takes a policy decision it is then

not a function of the Court to re-examine the matter by way of appeal.

Necessary analogy could also be drawn from BALCO Employees' Union (Regd.)

v. Union of India, [2002] 2 SCC 333.

Once such a considered decision is taken, the proper execution of the same

should be undertaken 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 the

project and such a system cannot be said to be arbitrary, then the only

role which the Court has to play is to ensure that the system works in the

manner it was envisaged. It is made clear in that decision that the

questions whether to have an infrastructual project or not and what is the

type of project to be undertaken and how it has to be executed, are part of

policy-making process and the courts are ill-equipped to adjudicate on a

policy decision so undertaken. However, a note of caution was struck that

the Courts have a duty to see that in the undertaking of a decision, no law

is violated and people's fundamental rights as guaranteed under the

Constitution are not transgressed upon except to the extent permissible

under the Constitution. When a law has been enacted in relation to the

protection of environment and such law is being given effect to and there

is no challenge to such law, the duty of the Courts would be to see that

the Government and other respondents act in accordance with law and there

is no other obligation for the Court to examine further in the matter. We

respectfully agree with the view expressed in the Sardar Sarovar project's

case and apply the same to the facts arising in this, case.

Further, it was noticed in the aforesaid decision that in cases where a

project is taken up of the present nature, the Court will certainly bear in

mind that environmental concern should be examined not only with reference

to the submerged areas but also its surrounding areas. The impact has to be

examined on the project as a whole and at the same time it should also be

noticed that the construction of a dam would result in multifold

improvement in the environment of the areas where the canal waters will

reach. The benefits which have been reaped by the people all over India

with the construction of the dams are too well-known and, therefore, the

Government cannot be faulted for deciding to construct the high dam on

river Tehri with a view to provide water and electricity in the area as was

the decision in the Sardar Sarovar project's case also. In such situations,

displacement of people residing in the proposed project sites and the areas

to be submerged is an important issue. Therefore, a properly drafted relief

and rehabilitation plan is absolutely required and the Government was also

conscious of this particular fact. It, therefore, not only examined this

matter on several occasions but also constituted an Expert Committee on

17.7.1996 to examine the environmental and rehabilitation aspects. Several

times the matter was examined by the Government at different stages and

follow up action plans also were actively considered by the Government. The

report given by Hanumantha Rao Committee (HRC) was accepted by the

Government subject to certain conditions and the project is being

implemented in terms thereof.

Therefore, at this penultimate stage of the proceedings, it is too late in

the day to think as to why the decision was taken to construct the project

or decisions have been taken to continue the project though at one stage it

was thought it would not be appropriate to continue the same.

With these clarifications, we will now proceed to the specific aspects of

safety and conditional clearance.

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Safety Aspect

Tehri Dam is being constructed at the confluence of the Bhagirathi and

Bhilangana rivers in the neighborhood of the Garhwal town in the State of

Uttaranchal. According to the petitioners the structure of the dam itself

is not safe and also alleged that its existence increases the seismic

vulnerability of the entire Himalayan region. By way of abundant caution

they want the concerned authorities to conduct Three-Dimensional (3D) Non-

Linear Test to evaluate the earthquake susceptibility of the dam against

the Maximum Credible Earthquake. They also insist upon the computer

simulated Dam Break Analysis to estimate the magnitude of damages in the

unexpected eventuality of any dam failure. The respondents submitted that

they explored the possibility of such tests and arrived at a conclusion

that such tests are neither practical nor necessary in the present case.

The respondents added that the studies related to site specific assessment

of seismicity, testing of fill materials for determining dynamic properties

and detailed dynamic analysis, were carried out independently by two

agencies; that they are the Department of Earthquake Engineering,

University of Roorkee, and Hydro Project Institute (HPI), Moscow; that the

result of their studies indicated that earth and rockfill type dams as

chosen for Tehri are the safest man-made structures in earthquake prone

zones due to their large inertia, high damping and high flexibility; that

the dam fill material is being compacted to concrete like density, which

provides high strength while retaining the flexibility; that relatively

flat slopes have been adopted for up-stream and down stream of the dam,

which are flatter than the slopes provided in some recent high dams built/

planned in regions of similar high seismicity; that, therefore, the Tehri

Dam is a fail-safe structure and the design has been found safe against the

worst earthquake scenario of the area, even when very conservative and

severe seismic parameters were assumed for these tests. A high level

Committee under the Chairmanship of Director General, Geological Survey of

India, which consists members from Central Water Commission; Director,

National Geophysical Research Institute; Head of Department of Earthquake

Engineering, University of Roorkee, and Dr. V.K. Gaur, the then Secretary,

Department of Ocean Development was also constituted to examine issues

concerning safety of the dam. The Committee in its report established that

even in the worst scenario of possible occurrence of a large magnitude

earthquake of 8+ in richter scale with the probable location at a depth of

15 km below the dam site, the same would be safe. They concluded that dam

design is safe and added that all danger arising out of the seismicity have

been taken note of and taken care of in the planning of Tehri Dam project.

From the documents before us, it could be gathered that the Government also

referred the matter to Seismic Expert, Prof. Jai Krishna who was the former

President of International Academy of Earthquake Engineering and also Vice-

Chancellor of the University of Roorkee. He examined the matter and opined

that "the proposed dam section for the Tehri Project is safe from the point

of view of seismicity of the region" and "since conservatism has entered at

almost every step of decision making, the overall factor of safety of the

dam is high enough to eliminate any risk from earthquake of the future."

The next Expert Group that consisted of the Director General, Geological

Survey of India, made a report on 25.7.1991 and recommended that the

reports of the High Level Committee and the review given by Prof. Jai

Krishna should be accepted. The seismic stability of the dam was further

got tested through the Hydro Project Institute, Moscow, against actual

acceleogram of the Gazli earthquake for the maximum vertical acceleration

of 1.36g and horizontal acceleration of 0.72g both acting simultaneously

and the dam design was again found to be safe. Even though the design of

the dam had been earlier independently checked by two separate agencies, it

was again examined and it was found that the project appears to be safe.

Subsequently, during the pendency of this petition, in order to allay fears

expressed in certain quarters, the Government of India in June 1996

appointed a Group of Five Experts to examine the relevant scientific and

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technical reports and other information relating to safety of the Tehri Dam

and make its recommendations to the Government for consideration. In the

selection of the experts Shri Sandra Bahuguna, who has been spearheading

the movement against the construction of the Tehri Dam, was also associated

and he recommended the inclusion of two engineers apart from the three

seismologist. Thus the names of all the five Experts were suggested by Shri

Bahuguna. The Group of Five Experts, after a detailed discussion on the

various issues related to the seismic safety of the Tehri Dam, concluded

that a comprehensive appraisal of the seismic safety of the dam required

completion of the two key exercises by employing recent advances in

conceptual and computational capabilities and they are, (i) quantitative

estimation of seismic hazard at all the Tehri Dam site, and (ii) evaluation

of the performance of the Tehri Dam as currently designed, if it was

exposed to the estimated seismic hazard at the site. Accordingly, the Group

of Experts got conducted the necessary exercises at their own decided

parameters and methods. The Group also considered the International

Commission on Large Dams Guidelines on Earthquake Analysis Procedure for

Dams and Seismicity and Dam Design. Based on these materials the Group of

Experts finally submitted the report on 18.2.1998. They concluded that the

"present design of the Dam is expected to be structurally safe to withstand

the maximum credible earthquake during the economic performance life of the

dam-reservoir system." The Group of Experts was unanimous in their

recommendation as stated above. However, as a matter of abundant caution,

four Experts suggested (i) 3-D Non-Linear analysis of the Dam to evaluate

its performance against the maximum credible earthquake and (ii) a

simulated dam break analysis to ensure that in the unlikely event of an

uncontrolled release of water, the consequences are minimum, be conducted.

There was difference of opinion between the four Experts and the Fifth

Expert only on the need to undertake these two additional studies as a

matter of abundant caution. The Government of India, after receipt of the

report of the Group of Experts, examined the further recommendation of the

four out of five Experts in consultation with the Central Water Commission,

which is a technical body of the Government and nodal agency in the country

for planning and design of River Valley Projects who in turn referred the

report of the Expert Group together with the need for carrying out the work

recommended by way of abundant caution to the National Committee on Seismic

Design Parameters which is a standing technical committee and it furnished

its views. In addition, plethora of material has been placed by way of

various text books and studies carried out by other agencies. We think that

it is neither feasible nor proper for us to delve into these details. The

Government of India, after considering the views thereof, finally decided

that there was no necessity to undertake the work recommended further by

the Four Experts by way of abundant caution and clearance to the project

was given.

In Tehri Bandh Virodhi Sangarsh Samiti vs. State of UP, [1992] Supp. 1 SCC

44, the grant of clearance on July 19, 1990 was called in question before

this Court in a writ petition and this Court examined the safety aspects

which were brought to the notice of the court and it was held that the

clearance given was not as a result of non-application of mind by the

Government on safety and environmental aspects and it was particularly

examined with reference to the fact that site of the project is being

within the earthquake prone zone and this Court, after specific examination

of the record observed that the project was considered by the Environmental

Appraisal Committee of MoEF, Committee of Secretaries, High Level Committee

comprising experts of scientific and specialised organisations and also by

a renowned expert of international repute and, therefore, the Government

considered the question of safety of the project from various details more

than once and on being satisfied with the reports of the experts gave

clearance to the project. In those circumstances, this Court thought fit

not to interfere with the same.

This Court dealt with the safety concerns and held that :

"...In our opinion the Court can only investigate and adjudicate the

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question as to whether the government was conscious to the inherent danger

as pointed out by the petitioners and applied its mind to the safety of the

dam. We have already given facts in detail, which show that the government

has considered the question on several occasions in the light of the

opinions expressed by the experts. The government was satisfied with the

report of the experts and only thereafter clearance has been given to the

project."

In the present case the Government, even after the decision of this Court

which did not interfere with the decision of the Government on safety

aspects in Tehri Bandh Virodhi Sangarsh Samiti's case (supra) again

seriously examined safety aspects as a matter of precaution. The Office

Memorandum dated 1.2.1999 of the Ministry of Power, Government of India,

before us testifies this position. Green signal for further works was given

by the Government after satisfying itself with the safety of the dam. A

mere revisit to the earlier decision cannot be counted as a sign of doubt

regarding the dam safety. If the Government so desires they could have

abandoned the Project. The necessity or effectiveness of conducting 3D Non-

Linear Test or Dam Break Analysis were taken into account by the Government

and if the Government decided not to conduct such tests upon the opinion of

the concerned expert bodies, then the Court cannot advice the Government to

go for such tests unless malafides, arbitrariness or irrationality is

attributed to that decision. The decision of the Government is not based on

any financial constraints or uncertainty as to technical opinion. It was

clearly of the view that the last Committee was unanimous that the Tehri

Dam to be constructed is safe but the advice based on abundant caution was

not accepted. As a result, we need not re-examine the safety aspects of the

dam.

This Court cannot sit in judgment over the cutting edge of scientific

analysis relating to the safety of any project. Experts in science may

themselves differ in their opinions while taking decisions on matters

related to safety and allied aspects. The opposing viewpoints of the

experts will also have to be given due consideration after full application

of mind. When the Government or the concerned authorities after due

consideration of all viewpoints and full application of mind took a

decision, then it is not appropriate for the Court to interfere. Such

matters must be left to the mature wisdom of the Government or the

implementing agency. It is their forte. In such cases, if the situation

demands, the Courts should take only a detached decision based on the

pattern of the well-settled principles of administrative law. If any such

decision is based on irrelevant consideration or non-consideration of

material or is thoroughly arbitrary, then the Court will get in the way.

Here the only point to consider is whether the decision-making agency took

a well-informed decision or not. If the answer is 'yes', then there is no

need to interfere. The consideration in such cases is in the process of

decision and not in its merits.

In this context, reliance is sought to be placed on the decision of this

Court in A.P. Pollution Control Board v. Prof. M. V. Nayudu (Retd.) & Ors.,

[1999] 2 SCC 718. In that decision, this Court viewed that in scientific

matters of complex nature resulting in uncertainty, reference has to be

made to a specialised technical/expert body and not merely decide the

matter on well known principles of administrative law of court not re-

examining the matter if all relevant considerations have been taken note

of. In the present case when once a decision had been given by this Court

on safety aspects on an earlier occasion and thereafter the matter was

again examined by the Government through different agencies and had taken a

decision as to the necessity of further test by way of abundant caution

should be relevant or not, we do not think, we can sit in judgment over

such decision, particularly when there is no difference of opinion among

the Experts as to the safety of the dam. It is only by way of abundant

caution such studies were suggested by four out of five experts. Thus the

usefulness or necessity thereof itself being in doubt, as expressed in

various reports, and text books relied on by either side, the principle

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stated in A.P. Pollution Control Board's case (supra) cannot be applied. In

that decision it was noticed that inadequacies of science had led to the

precautionary principle leading to the principle of burden of proof in

environmental cases where burden as to the absence of injurious effect of

the actions proposed is placed on those who want to change the present

state of affairs. After detailed consideration of this decision, it is held

in Narmada Bachao Andolan's case (supra) :-

"It appears to us that the 'precautionary principle' and the corresponding

burden of proof on the person who wants to change the status quo will

ordinarily apply in a case of polluting or other project or industry where

the extent of damage likely to be inflicted is not know. When there is a

state of uncertainty due to lack of data or material about the extent of

damage or pollution likely to be caused then, in order to maintain the

ecology balance, the burden of proof that the said balance will be

maintained must necessarily be on the industry or the unit which is likely

to cause pollution. On the other hand where the effect on ecology or

environmental of setting up of an industry is know, what has to be seen is

that if the environment is likely to suffer, then what mitigative steps can

be taken to offset the same. Merely because there will be a change is no

reason to presume that there will be an ecological disaster. It is when the

effect of the project is known that the principle of sustainable

development would come into play which will ensure that mitigative steps

are and can be taken to preserve the ecological balance. Sustainable

development means what type or extent of development can take place which

can be sustained by nature/ecology with or without mitigation.

In the present case, we are not concerned with the polluting industry which

is being established. What is being constructed is a large dam. The dam is

neither a nuclear establishment nor a polluting industry. The construction

of a dam undoubtedly would result in a change of environment but it will

not be correct to presume that the construction of a large dam like the

Sardar Sarovar will result in an ecological disaster. India has an

experience of over 40 years in the construction of dams. The experience

does not show that construction of a large dam is not cost-effective or

leads to ecological or environmental degradation. On the contrary there has

been ecological upgradation with the construction of large dams. What is

the impact on environment with the construction of a dam is well known in

India and, therefore, the decision in A.P. Pollution Control Board case

will have no application in the present case." [at pp. 727-728]

Aspects Related to Conditional Clearance

Before adverting to other issues, certain aspects pertaining to the

preservation of ecology and development have to be noticed. In Vellore

Citizens Welfare Forum v. Union of India, [1996] 5 SCC 647, and in M C

Mehta v. Union of India, [2002] 4 SCC 356, it was observed that the balance

between environmental protection and developmental activities could only be

maintained by strictly following the principle of' sustainable

development.' This is a development strategy that caters the needs of the

present without negotiating the ability of upcoming generations to satisfy

their needs. The strict observance of sustainable development will put us

on a path that ensures development while protecting the environment, a path

that works for all peoples and for all generations. It is a guarantee to

the present and a bequeath to the future. All environmental related

developmental activities should benefit more people while maintaining the

environmental balance. This could be ensured only by the strict adherence

of sustainable development without which life of coming generations will be

in jeopardy.

In a catena of cases we have reiterated that right to clean environment is

a guaranteed fundamental right. May be in different context, the right to

development is also declared as a component of Article 21 in cases like

Samata v. State of Andhra Pradesh, [1997] 8 SCC 191, and in Madhu Kishore

v. State of Bihar, [1996] 5 SCC 125.

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The right to development cannot be treated as a mere right to economic

betterment or cannot be limited to as a misnomer to simple construction

activities. The right to development encompasses much more than economic

well being, and includes within its definition the guarantee of fundamental

human rights. The 'development' is not related only to the growth of GNP.

In the classic work - 'Development As Freedom' the Nobel prize winner

Amartya Sen pointed out that 'the issue of development cannot be separated

from the conceptual framework of human right'. This idea is also part of

the UN Declaration on the Right to Development. The right to development

includes the whole spectrum of civil, cultural, economic, political and

social process, for the improvement of peoples' well being and realization

of their full potential. It is an integral part of human right. Of course,

construction of a dam or a mega project is definitely an attempt to achieve

the goal of wholesome development. Such works could very well be treated as

integral component for development.

Therefore, the adherence of sustainable development principle is a sine qua

non for the maintenance of the symbiotic balance between the rights to

environment and development. Right to environment is a fundamental right.

On the other hand right to development is also one. Here the right to

'sustainable development' cannot be singled out. Therefore, the concept of

'sustainable development' is to be treated an integral part of 'life' under

Article 21. The weighty concepts like inter-generational equity State of

Himachal Pradesh v. Ganesh Wood Products, [1995] 6 SCC 363, public trust

doctrine M C Mehta v. Kamal Nath, [1997] 1 SCC 388 and precautionary

principle (Vellore Citizens), which we declared as inseparable ingredients

of our environmental jurisprudence, could only be nurtured by ensuring

sustainable development.

To ensure sustainable development is one of the goals of Environmental

Protection Act, 1986 (for short 'the Act') and this is quiet necessary to

guarantee 'right to life' under Article 21. If the Act is not armed with

the powers to ensure sustainable development, it will become a barren

shell. In other words, sustainable development is one of the means to

achieve the object and purpose of the Act as well as the protection of

'life' under Article 21. Acknowledgment of this principle will breath new

life into our environmental jurisprudence and constitutional resolve.

Sustainable development could be achieved only by strict compliance of the

directions under the Act. The object and purpose of the Act - "to provide

for the protection and improvement of environment" could only be achieved

by ensuring the strict compliance of its directions. The concerned

authorities by exercising its powers under the Act will have to ensure the

acquiescence of sustainable development. Therefore, the directions or

conditions put forward by the Act need to be strictly complied with. Thus

the power under the Act cannot be treated as a power simpliciter, but it is

a power coupled with duty. It is the duty of the State to make sure the

fulfillment of conditions or direction under the Act. Without strict

compliance, right to environment under Article 21 could not be guaranteed

and the purpose of the Act will also be defeated. The commitment to the

conditions thereof is an obligation both under Article 21 and under the

Act. The conditions glued to the environmental clearance for the Tehri Dam

Project given by the Ministry of Environment vide its Order dated July 19,

1990 has to be viewed from this perspective.

The relevant portion of the environmental clearance certificate of the

Tehri dam dated July 19, 1990 is verbatim extracted hereunder:

"Tehri Dam Project was initiated in 1972 for an installed capacity of 600

MW, now revised to 2400 MW to be taken up in three stages. The collection

of data and preparation of environmental action plans is yet to be finally

completed. Meanwhile, an amount of Rs. 440 crores has been spent on various

project related works. The Department of Power and the Government of Uttar

Pradesh have assured to furnish all the detailed action plans according to

a prescribed time schedule and to implement the action plan pari-passu with

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the implementation of the engineering works.

After taking into account all the factors, the Tehri Dam Project is

accorded environmental clearance subject to the following conditions:

(A) The Project Authorities must get the safety aspects and the design of

the Dam approved by the High Level Expert Committee constituted for the

purpose.

(B) Comprehensive Environmental Management Plans must be formulated to

the satisfaction of, and got approved from, the Ministry of Environment &

Forests in a time bound manner as outlined below:

3.1 Catchment Area Treatment

Obligations of Tehri Hydro Development Corporation (THDC)

(a) The THDC will, as per the recommendations of the Remote Sensing

Applications Centre, UP, identify the critically degraded areas conforming

to the "very high" and "high" erodability classification and prepare action

plans by 31.12.90 for the treatment of these areas in consultation with the

Government of Uttar Pradesh.

(b) The action plans prepared will ensure that the catchment area

treatment is completed before 31.12.1995 on the basis of detailed annual

action plans.

(c) The THDC will put at the disposal of the Government of Uttar Pradesh

all the requisite resources annually to implement the action plans.

Obligation of the Government of U.P.

The Government of U.P. will cooperate in the preparation of comprehensive

action plans for catchment area treatment by 31.12.1990 and to implement

these action plans by 31.12.1995 with the resources provided by THDC.

3.2. Rehabilitation

The THDC will, through a reputed institution, undertake a socio-economic

study of the measures needed to ensure that the standard of living of the

oustees is not affected due to the project. The study will be completed by

30.6.1991. The THDC will implement such recommendations as may be made by

the Ministry of Environment and Forests for rehabilitation after

consideration of the study report by the MEF. The rehabilitation package

covering population affecting Koteshwar dam as well as those living on the

rim of the reservoir and likely to be affected will be prepared before

31.3.1991.

3.3. Command Area Development

The Government of U.P. will prepare a plan for command area development for

the areas to be irrigated from the Tehri Project by 31.3.1991 and will

implement this package by 31.3.1995.

3.4. Flora and Fauna

THDC will commission a study of the flora and fauna going under submergence

as well as that affected by related works in the region so that reclamation

plans can be worked out along with setting up of botanical gardens. The

study of flora and fauna must be completed by May, 1991 and action plan

prepared thereafter to be executed before impoundment commences.

3.5. Water Quality Maintenance

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(a) The THDC will set up water quality monitoring stations to monitor the

quality of reservoir water.

(b) The THDC will initiate a water quality modeling study to formulate the

measures needed to preserve the water quality and prepare an action plan to

implement the measures recommended by such a study.

3.6. Disaster Management

A disaster management plan will be worked out by THDC by 31.3.1991 in

consultation with the likely affected population and the area authorities.

3.7. Bhagirathi Basin Management Authority

The Department of Power will ensure the setting up of the Bhagirathi Basin

Management Authority on a statutory basis through legislative action before

31.3.1991.

(C) The completion of studies, formulation of action plans and their

implementation will be scheduled in such a way that their execution is pari

passu with the engineering works failing which the engineering works would

be brought to a halt without any extraneous considerations. These

conditions will be enforced, among others, under the provisions of the

Environment (Protection) Act, 1986."

In a letter sent on 21.10.1994 by the Additional Director, MoEF, it is

noticed that even though the Tehri Dam Project was accorded environmental

clearance in July, 1990, the status of implementation of various safeguard

measures is lagging far behind.

A communication had been sent as early as in February, 1990 containing the

report of the Environmental Appraisal Committee, Ministry of Environment

and Forests, Government of India wherein it is stated as under :-

"...after a careful examination of the information and data available, the

Committee has come to the unanimous conclusion that the Tehri Dam Project,

as proposed, should not be taken up as it does not merit environmental

clearance."

It was also mentioned in another letter dated 19.7.1990 that "conditional

clearance to the project was given by the Ministry of Environment and

Forests. It was specifically provided that completion of status,

formulation of action plans and their implementation will be scheduled in

such a way that their execution is pari passu failing which the engineering

work would be brought to a halt. This condition will be enforced among

others under the provisions of the Environment (Protection) Act, 1986. " On

12.4.1991 another letter was sent again noticing the failure of Tehri Hydel

Development Corporation (THDC) to comply with the conditional environment

clearance and pointed out total dissatisfaction on the compliance contained

in the conditional clearance. It was stated that THDC should submit

comprehensive environmental plans as a component of the overall environment

management plans and that the plan should be effectively implemented

failing which action under the Act would be initiated. On 5.9.1991 a notice

under Section 19(b) of the Act was issued for stopping the work on Tehri

Hydro Electric Project on the ground that the non-fulfilment of conditions

provided in the environmental clearance within the stipulated time frame

has resulted in the lapse of the said clearance and, therefore, the work of

the project should be stopped immediately. It is on the basis of these

communications it is contended that as to why decision to continue the

project was taken on 21.10.1994 even though the consequence was disastrous

as the implementation was lagging behind.

Thereafter, it was noticed that on various aspects follow up is required as

mentioned hereunder :-

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ENVIRONMENTAL ISSUE

TARGET DATE

STATUS

1. Catchment Area Treatment

31.12.1990

Only basic data has been received but the status of implementation and the

Bar Chart is still awaited.

2. Rehabilitation

Socio-economic studies by 30.6.91 and from actual implementation 31.3.1993

The status report does not clearly indicate the task completed so far and

the proposed completion programme. In fact it was agreed by D/Power that

a meeting would be arrange with the officials of Administrative Staff

College of India who have under-taken the socio-economic survey of the

project impact area. This meeting is yet to take place.

3. Command Area Development 31.3.1993 Group have yet to submit

the Command Area Development Plan

4. Flora, Fauna Studies May 1991 The report of flora, fauna surveys

have been received which have been forwarded to the BSI and ZSI for their

observations by us. Comprehensive Action Plans are still to be formulated.

5. Disaster Management Plan (D.M.P.) 31.3.91 The final version of the

DMP has not been received in the Ministry

6. Bhagirathi Basic Management Authority 31.3.93 The Group have

issued a Government Order on 30.3.91 regarding setting up of the Authority.

Legislation, however, is yet to be brought out.

The main conditions that the Ministry of Environment fixes at the time of

granting clearance to the Tehri Dam project is to comply with the

conditions attached to the following aspects:

1. Catchment Area Treatment

2. Command Area Development

3. Flora and Fauna

4. Water Quality Maintenance

5. Bhagirathi Basin Management Authority

6. Disaster Management

7. Rehabilitation

On 17.9.1996, the Government of India, on demand for further examination of

certain rehabilitation and environmental issues relating to the Tehri

Project, appointed a Committee headed by Prof. C H Hanumantha Rao. This

Committee basically looked into the Rehabilitation Policy, its

implementation and the implementation of various conditions for

environmental clearance. Later, Hanumantha Rao Committee submitted it

Report (hereinafter, HRC Report) in October 1997. Government of India

accepted certain vital suggestions in the HRC Report. The petitioners

allege that even the HRC Report, as accepted by the Government, was not

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complied with. They argued, based on the clearance certificate that the

conditions have to be carried out pari passu with the engineering works.

And prayed that the impoundment shall not be allowed till its compliance.

The respondents deny this contention and submit that the environmental

plans connected with the project are to be implemented pari-passu with the

implementation of engineering works and submit that various actions have

already been initiated in this regard.

On the question of Catchment Area Treatment, it is contended that the

Remote Sensing Application Centre, U.P. made a report identifying the

critically degraded areas conforming to the very high and high erodability

classification has been received and submitted to MoEF. Adequate financial

provisions have been made as per requirements depending on the availability

of the funds with THDC for the proposed treatment and at the time of filing

of the first of the counter affidavits as late as in July 1992, 17,700

hectares have already been treated.

Rehabilitation programme has also been taken up in consultation with the

local representatives of the affected population and the Administrative

Staff College of India, Hyderabad. Similar rehabilitation package as that

for Tehri is proposed for families affected by Koteshwar Dam as well as for

those living on the rim of the reservoir. The Government of U.P. had

indicated to the MoEF that implementation of plans is going on and

considerable work has already been completed in this area. Studies had been

conducted by the Botanical Survey of India and Zoological Survey of India

regarding flora and fauna and action plans were under preparation. Water

Quality Maintenance was being modelled on a report to be made by the

Roorkee University and it was assured that Water Quality Monitoring Station

at appropriate time during the construction will be set up. A disaster

management plan has been submitted by the THDC to the Government of India.

On 23.3.1990, by issuance of a notification, the Government of U.P. has set

up the Bhagirathi River Valley Authority. Therefore, it is contended that

formulations of environmental action plans and their implementation is

being carried out pari-passu with the construction of engineering works.

While 10% of expenditure over the estimated cost had been incurred on the

project works, the corresponding expenditure incurred on rehabilitation

works and the environmental measures was 41% and 52% of the estimated cost

respectively as in March 1992. It is, therefore, contended that the

conditional clearance given to the respondents has not lapsed. Even the

Government proceeded on the basis that the project was still a going

project and, therefore, appointed two expert committees even as late as in

1996 to examine - one on the safety aspect and the other on environment and

rehabilitation aspects.

As late as on 14.3.2002 an affidavit has been filed on behalf of the

Government of India. It is pointed out therein that the MoEF while

according environmental clearance to the Project had laid down certain

conditions in their letter dated July 19, 1990. These conditions had, inter

alia, enumerated certain studies which were to be carried out and based on

their findings, action plans had to be drawn up for execution pari-passu

with the construction of the project. It is also pointed out that all the

required studies had been completed and their reports submitted to the MoEF

and these studies indicated that no environmental damage would be caused by

the construction of the project which cannot be remedied by adoption of

appropriate measures and for this purpose, action plans wherever called for

have been and are being formulated for environmental upgradation. It is

further pointed out that implementation of the project and the action being

taken in regard to environmental concerns at the cost of the project would

lead to improvement in the existing environment/ ecology of this region.

HRC was constituted to examine the implementation of various conditions of

environmental clearance except that relating to safety aspects and design

of the Tehri Dam and suggest additional or improved environmental

safeguards, if any, based on data and information now available. HRC, after

examining various documents and discussions with experts, officials and

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local people, and visiting the project site, submergence area and catchment

areas submitted its recommendations to the Government. After detailed

deliberation, the Government of India conveyed its decisions on the

implementation of recommendations of HRC on environment and rehabilitation

aspects of the Project on 9.12.1998. In this context it is necessary to go

into the details of the compliance of each condition. The abovementioned

first five conditions are directly connected with the protection of

environment vis-a-vis sustainable development. The last two conditions

(Disaster Management and Rehabilitation) are due to slightly different

reasons. We will deal with it separately.

The main controversy in this case is regarding the pan passu compliance of

the conditions in the clearance certificate. Before going into any detailed

evaluation of these aspects the term 'pari passu' needs to be explained.

The lexical meaning of the Latin word part passu is - at an equal rate or

pace, with simultaneous progress, proportionately etc. This term is

generally used in the context of creditors who, in marshalling assets, are

entitled to receive out of the some fund without any precedence over each

other. Any way, the required application of its meaning in the background

of the present case is clear. The works, which are fixed up as conditions

attached to the clearance, will have to be carried out simultaneously with

the engineering works. So by the time the engineering works finishes, the

conditions should also have been fulfilled.

Environmental Conditions

Catchment Area Treatment:

Catchment Area is that area from which water is directly or indirectly flow

into the river, stream etc. Total catchment area of the Tehri Project is

6921.25-sq. km. This area is divided into 16 sub-watersheds and 149 micro

watersheds. Of which, 3557.99 sq. km. are estimated to be snow bound,

rocky, precipitous, alpine blanks or within the submergence area. Main

purposes of catchment area treatment are to regulate the flow of water,

prevention of soil erosion, to minimize the negative impact of the project

itself on the catchment and to protect and regenerate vegetation in the

catchment area and the water resources.

Upon the acceptance of HRC Report, the Union Government entrusts the

responsibility of treatment of degraded areas of 'high' and 'very high'

erodability to the THDC. At the same time the State Government has to

formulate separate plans for the treatment of 'medium' and 'low' categories

of erosion. On principle the Union accepts to treat the entire degraded

catchment of all categories. The treatment of entire catchment of high and

very high erodability classification has to be completed part passu with

the construction of the project. It is submitted on behalf of the

Respondents that an area of 37589 ha.-- has been treated till December 2001

and soil conservation measures are being implemented as part of treatment

program for upgrading the environment of the entire region. The treatment

of the remaining area i.e.; 3670.60 ha, is proposed to be completed by

September 2003.

On the question of Catchment Area Treatment, it is stated that treating

degraded areas in the Bhagirathi catchment started even as early as in

1970. The area coverage under CAT since the inception of the project was

22000 hectares which does not include the areas covered under CAT prior to

inception of the project. As per the order of the Government accepting the

recommendations of the HRC is that the project authorities should strive to

complete as far as possible the treatment of the entire catchment of high

and very high erodability classification pari-passu with the construction

of the project so as to be completed before commissioning of the project

and it would be ensured that all direct draining areas of high and very

high erodability must be completed before the ensuing monsoons and the

present status of the coverage under this category is as follows :

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Identified high and very high erodability area - 52,204 ha

Completion of CAT carried out till date - 40,486.4 ha

Balance area to be treated under CAT - 11,717.6 ha

Balance area in Direct Draining [under forest] - 3,670.6 ha

The target for the area remaining to be treated as per the CAT in high and

very high erodability area will be achieved by September 2003 and with the

completion of the remaining area treatment of the catchment under Direct

Draining will be completed. As regards low and medium erodability category

actions have been initiated by the Government of U.P. and an action plan

has been formulated for treating such areas out of 10,000 hectares of

forest area and 3,500 hectares of non-forest area. This would be in

addition to 52,204 hectares as per the 1998 CAT plan. The project

authorities have completed compensatory afforestation on 4516 hectares non-

forest land in the Districts of Jhansi and Lalitpur and the Government of

Uttaranchal has proposed to treat the said areas by taking up the catchment

areas under densification, fuel wood plantation and restoration of degraded

forests. The present status in this regard is that the Catchment Area

Treatment was under implementation by the State Forest Department in the

catchment of high and very high erodability classification based on the

earlier CAT plan formulated by the State Forest Department under which an

area of 22,746 hectares was treated upto March 1994. Subsequently, it was

decided to treat only the direct draining catchment of high and very high

erosion class based on the satellite images. Accordingly, a CAT Plan, 1994

was formulated and submitted to MoEF for treatment of an additional

catchment area of 13500 hectares in addition to area earlier treated, i.e.,

a total area of [22746+13500] equivalent to 36246 hectares. MoEF, however,

directed in July 1998 that 52204 hectares of high and very high erosion

classification, in the entire catchment, was to be treated at the cost of

Tehri Project. This requirement was incorporated by the Government in its

decisions on the HRC recommendations. As decided by the Government, the

project is now doing CAT in the entire degraded catchment in area of high

and very high erosion class after excluding the areas already treated. An

area of 37591.4 hectares has already been treated till December 2001. The

soil conservation measures are being implemented as part of the CAT

Programme for upgrading the environment of the region. The remaining area

is proposed to be treated by 2002-2003. The CAT Programme is presently

being implemented by the Government of Uttaranchal.

Command Area Development :

Command Area Development primarily aims to avert the problems of water

logging and emergence of salinity. This is very important in maintaining

the environmental balance. Union government fixes the responsibility on the

State of UP to finalize the command area plan and to furnish the same to

the Union Ministry of Power for onward submission of the same to the

Ministry of Environment and Forests. Quoting the affidavit filed by the

State of Uttaranchal that "...the Government of UP submitted Command Area

Development Plan (CADP) which was formulated by the Ministry of Power was

forwarded to MoE in July 1998. The MoE desired CADP be revised by GOUP

incorporating information on cropping pattern and ground water. The revised

CADP, is in process by Government of UP..."

The Command Area Development Plan was submitted by the Government of U.P.to

MoEF in July 1998 and the modification of the Plan was suggested by MoEF is

under process. It is submitted that the existing canal networks will be

utilised to irrigate extended cultivable command are of 2.7 lac hectares

and stabilize existing irrigation in 6.04 lac hectares.

Flora and Fauna :

HRC Report points out the scantiness in the studies carried out by

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Botanical Survey of India (BSI) and Zoological Survey of India (ZSI) on the

impact of Tehri project on flora, fauna and biodiversity. Based on the HRC

Report, the Government of India has decided to conduct further studies on

flora and fauna of Project region extending to two annual cycles. It also

decides to carry out appropriate remedial measures based on the outcome of

the studies. Another decision was regarding the carrying out of action plan

to protect the Mahaseer fish. It is resolved by the Government to carry out

other pre-impoundment studies and to take consequential supplementary

measures. Finally they agreed to conduct another study on the impact of

impoundment on the flora and fauna in the post-impoundment period.

In regard to flora and fauna, the study conducted by various agencies has

brought out that no rare species come under submergence of the reservoir

and that there is no adverse impact on the fauna of the dam except in case

of Mahseer Fish. Study reports by BSI and ZSI were submitted to the MoEF

along with plans for protection/propagation of Mahseer Fish recommended by

the ZSI and BSI had also recommended certain species to be planted which is

being done by the State Forest Department as a part of CAT Programme.

Action plan for preservation of Mahseer has been entrusted by THDC for

implementation to the National Research Centre on Cold Water Fisheries,

Bhimtal. A Botanical Garden in an area of 14.28 hectares is also under

implementation by the Uttaranchal State Forest Department near the

reservoir and about 50% of its work is completed. It is also submitted that

the site development work is completed and induced artificial breeding work

will be completed by March 2004.

Water Quality Maintenance :

At the threshold itself HRC observed that it is not in a position to go

into the correctness of the scientific conclusions of various bodies on the

maintenance of water quality. Nevertheless they expressed certain opinion

regarding the general maintenance of water quality. Central Government

decides to follow the advice of Central Water Commission pertaining to the

effect of water quality due to impoundment. They also submitted that the

THDC is asked to formulate action plan to set-up water quality monitoring

stations and to study the impact on quality of water downstream, aspects of

mineral contamination etc. and to take appropriate steps.

As regards the water quality monitoring, a report was submitted by the

University of Roorkee and its report established that water quality of

reservoir shall not be harmful for aquatic life or other downstream water

uses. Proposal for setting up of water quality monitoring stations as

initiated by THDC with the Central Water Commission under the Ministry of

Water Resources, CWC has made a revised proposal based on certain

parameters recommended by the Central Pollution Control Board. Based on

this, THDC in association with CWC would be setting up monitoring stations,

the work on which shall be completed before the impoundment of reservoir.

Bhagirathi Basin Management Authority :

MoEF decides to link the clearance of the Tehri project with development of

Bhagirathi Basin. This is aimed in the larger interest of protecting the

environment of the entire region. Development of Bhagirathi Basin therefore

is very important in the context of this case.

The Government of U.P. had constituted the authority initially by an

executive order, Bhagirathi River Valley Authority. Subsequently,

Bhagirathi Basin Management Authority has been constituted on a statutory

basis by a notification issued on 24.3.1999. Plan for greenbelt development

along the rim of reservoir of the reservoir to prevent soil erosion and

flow of silt has been prepared. For monitoring the implementation of these

aspects, an institutional mechanism has been created. The Regional Office

of MoEF is set up in the States of U.P. and Uttaranchal and the same is

monitoring all developmental projects including the projects at Tehri. The

status of compliance of forest clearance issued in 1987 and 1997 has been

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monitored and the status of compliance of environment conditions was

monitored in 2001 and 2003. Points of non-compliance as and when noticed

have been taken up for necessary corrective action.

Impact on Human Health:

Large quantities of static water provide fertile breeding ground for

diseases carrying vectors. River valley projects have been cited as a cause

to the spread of many epidemics. Considering the fact that reservoir of the

Tehri Project is below 1000m altitude, the chances of vector breeding are

very high. Earlier the Bhumbla committee raised this issue pertaining to

Tehri dam in 1990. But this was not figured in the clearance given to the

Project by the MoEF. HRC Report pointed out this aspect and made the

recommendation to undertake a comprehensive study of the potential health

impacts of the Tehri dam reservoir, reservoir of the downstream dam and the

irrigation canals and mandated to get the plan approved by the Ministry of

Health, Government of India. It also recommended to its quick

implementation. The Government accepted this reference in the HRC Report.

Apart from this acceptance, the petitioners allege that no works have been

carried out.

Right to health is a fundamental right under Article 21. Protection of this

is inextricably linked with the clean environment. Clean and healthy

environment itself is a fundamental right. This position was reiterated by

this Court in M C Metha v. Union of India [2001] 3 SCC 756. Therefore the

impact of the Project on Human Health cannot be given a go by. It has to be

seriously scrutinized.

All the above-discussed aspects aimed at maintaining the ecological balance

and protecting human rights are integral elements of sustainable

development. Rupture to the Himalayan environment, if any, due to the dam

construction could only be compensated by strictly complying with these

conditions attached to the clearance. These aspects are vital for life and

sustainable development of the area. If these aspects are not complied

with, the human life and whole Himalayan environment will be the casualty.

Only its strict compliance could maintain the ecological balance.

Disaster Management :

Disaster Management means all aspects of planning, coordinating and

implementing all measures which are necessary or desirable to prevent,

minimize, overcome or to stop the spread of a disaster upon the people or

any property and includes all stages of rescue and immediate relief. It is

a proven fact that lot of human suffering and misery from large number of

disasters can be mitigated by taking timely actions, planning and

preventive measures. It is possible only through well functioning disaster

management framework. This will enable us to minimize, control and limit

the effects of disaster and will streamline the disaster management

exercises. Our present relief centered re-active approach after the

striking of disaster need to be changed into preparedness oriented pro-

active attitude. This is the aim of pre-disaster preparations. Disaster

Management Plans has to play an integral role in this exercise. They are

blue prints for the management of disasters. The Disaster Management Plans

should contain the aspects of disaster prevention and of ways for its

management in the untoward occurrence of a disaster. A proper plan will

place the disaster management exercise on a more firm foundation.

It is a welcome gesture that the Clearance to this Project contains a

condition for chalking out disaster management plan. Disaster Management

activities should be integrated with the developmental activities.

Incidentally, this is also the resolve of the Yokohama Strategy of the

United Nations International Decade of Natural Disaster Reduction, to which

India is a party. There is an affirmative obligation on the part of the

State to preserve and protect human life and property. This obligation is

an integral element in fulfilling developmental endeavors. Therefore,

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disaster management cannot be separated from sustainable development.

The respondents submit that the Ministry of Agriculture has approved the

Disaster Management Plan prepared by the THDC. And added that they are

going to dovetail disaster management plan of the state government at the

District level into the plan prepared by THDC. As regards the disaster

management, the nodal agency is the Ministry of Agriculture and disaster

management plan was approved by the said Ministry in 1992 and a Steering

group has been constituted by the Government in every district under the

chairmanship of district magistrate for flood fighting and related

activities and the Steering group will implement the disaster management

plan in case of any eventuality from the dam. The Government of Uttaranchal

has also constituted a Steering group under the Chairmanship of the

Principal Secretary (Irrigation and Energy), to meet any emergency

situation due to the dam. But effectiveness of all these exercises is in

the proper carrying out of management activities.

Rehabilitation :

The construction of Tehri and Koteshwar dams will result in the formation

of two lakes having a spread of 42 sq. kms and 2.65 sq. kms respectively at

full reservoir levels. The Tehri dam will submerge Tehri town and 22

villages. Another 74 villages will be partially affected. A major potion

will get affected in the first phase with the construction of the Cofferdam

and the remaining by final impoundment. In addition 2 villages fully and 14

villages partially will be affected by the Koteshwar dam. By the

construction of New Tehri Town, project works and colony construction will

affect another 13 villages. In total, Tehri power project will affect 37

villages fully, 88 villages partially and the Tehri town. Rehabilitation of

these much-affected people is the main issue before us.

Rehabilitation is not only about providing just food, clothes or shelter.

It is also about extending support to rebuild livelihood by ensuring

necessary amenities of life. Rehabilitation of the oustees is a logical

corollary of Article 21. The oustees should be in a better position to lead

a decent life and earn livelihood in the rehabilitated locations. Thus

observed tnis Court in Narmada Bachao Andolan's case (supra). The

overarching projected benefits from the dam should not be counted as an

alibi to deprive the fundamental rights of oustees. They should be

rehabilitated as soon as they are uprooted. And none of them should be

allowed to wait for rehabilitation. Rehabilitation should take place before

six months of submergence. Such a time limit was fixed by this Court in B D

Sharma v. Union of India, [1992] Supp 3 SCC 93 and this was reiterated in

Narmada. This prior rehabilitation will create a sense of confidence among

the oustees and they will be in better position to start their life by

acclimatizing themselves with the new environment.

The rehabilitation package is prepared. It is also made clear that the

rehabilitation conditions in this case are also applicable to the oustees

of Koteshwar dam as well as those living on the rim of the reservoir and to

all those who are likely to be affected by the project. The concerned

authorities will have to take proper steps to rehabilitate all those who

are entitled for rehabilitation before six months of the impoundment.

Without the completion of rehabilitation there shall not be any

impoundment.

According to the affidavit filed by M.L. Sharma, Under Secretary, Ministry

of Power, on behalf of the Union of India, reported on the status of the

follow-up action on the recommendations of the two expert committees

constituted by the Government of India on environment and rehabilitation

aspects of the project and that the recommendations made by the HRC were

considered by the Central Government in consultation with the Government of

U.P. and it was decided to implement those recommendations as per the

decisions indicated against each of the recommendation annexed to the

Office Memorandum dated December 9, 1998. It is also made clear that the

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expenditure shall be shared by the Government of India and the Government

of U.P. in the ratio of 60:40 and it was also decided that the Government

of U.P. shall take over the direct responsibility for the entire

rehabilitation task to be handled directly by its officers under the

overall supervision and control of the Commissioner, Garhwal Division for

which the State Government shall issue appropriate orders accordingly.

Recommendations of the HRC, as accepted by the Government, have been

produced before us.

It is contended on behalf of the Government that though developmental

programme are intended to benefit the citizens of the country but when

displacement is on large scale it is the moral duty of the State to ensure

that those who are being displaced are properly looked after. This Court in

Narmada Bachao Andolan 's case (supra) noticed that displacement of people

living on the proposed project sites and the areas to be submerged is an

important issue and a properly drafted relief and rehabilitation plan would

improve the living standards of displaced persons after displacement. When

clearances are given, conditions regarding preservation, conservation and

rehabilitation are imposed and those conditions will have to be fulfilled

by the authorities concerned to implement the project.

When the Government in their concern in this regard had constituted HRC and

HRC had made various recommendations, some of which have been accepted, as

adverted to earlier, certain grievances are set up in an affidavit filed on

behalf of the petitioners on 4.9.1999 before this Court and our findings

upon those grievances are as follows :

1. That HRC gives only 2 acres of land to each displaced family is not

satisfactory. In case of Sardar Sarovar Project in Gujarat, it is contended

that each family is getting 2 hectares of land as a minimum and there is no

logic for discriminating against the project affected persons of the Tehri

Project and such discrimination violates their fundamental rights under the

Constitution to be treated as equal under the law. We do not think that it

would be appropriate to hold that the extent of land recommended by HRC is

inadequate or insufficient. Such recommendation has been made by HRC after

due deliberation in the matter on the availability of the land in the

region, the life style of the persons affected, their needs and other

relevant factors in this regard. Above all, the project is being carried

out in a hilly area where land is very scarce. In such circumstances, we do

not think any comparison can be drawn between Sardar Sarovar Project and

Tehri Project. Hence we reject this contention raised on behalf, of the

petitioners.

2. Next recommendation in respect of which objection is raised is that the

Government of India has chosen to treat as separate families sons and

unmarried daughters who have attained the age of 21 years on the prescribed

date. It is urged that 18 years should have been taken as the age for such

classification and not 21 years. These matters are in the realm of decision

of the recommendatory body and the Government. If the Government had

chosen any other age, we could not have held it to be irrational. The

contention that voting rights to citizens had been given even at the age of

18 years has no relevance to the facts under consideration. Therefore, this

contention also does not deserve our intervention.

3. The next objection is raised in regard to major sons and unmarried

daughters not being given land but only cash and is not acceptable as the

same results in discrimination particularly once they have been recognised

as separate families and such discrimination would be violative of their

fundamental rights under the Constitution and it is contended that all

major married sons should be given 2 hectares of land as a minimum and all

the other benefits due to them as a displaced family under the package and

they can be given the option of taking cash, equivalent to the value of 2

hectares of land in lieu of the land, if they so desire. This argument

also cannot be accepted because as stated earlier on account of scarcity of

land it may not be feasible to provide land to every family and even such

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families as have been treated for purposes of giving larger benefit major

sons and unmarried daughters are treated as a separate family and not for

any other purposes. Similarly other contention that the unmarried sons and

daughters should be treated as a half a family unit and should be given

half hectare of land or cash in lieu thereof, cannot be accepted.

4. The contention now put forth is that the lands have not been acquired

as yet for the purpose of rehabilitation and the affected population is not

rehabilitated as yet and until they are relocated together no further

progress of the work should be allowed and it is further contended that if

the families are displaced for the project these affected persons should be

rehabilitated keeping in view the policy, package and procedure applicable

to the Tehri project.

In regard to the cases where families have already been shifted and where

rehabilitation has already been done, HRC recommended that only cash amount

awarded to be paid instead of land and the cash option is recommended

considering lack of land available for rehabilitation. Major married sons

receive Rs. 1,50,000 and the major unmarried sons and major unmarried

daughters receive Rs.75,000 each. The Government accepted this

recommendation subject to the condition that all additional living eligible

family members of fully affected families as on 19.7.1990 [excluding those

who are given land for cultivation] including families already shifted in

the past to the resettlement colonies from their earlier settlements would

be eligible to receive payment of an ex-gratia amount equivalent to 750

times the minimum agricultural wage which at current rates is Rs.33,000 per

person. These are matters of policy and when the Government takes such a

decision bearing in mind several aspects, we do not think this Court should

interfere with the same.

In cases where families have not been shifted or given rehabilitation

benefits for newly recognised additional families, HRC recommended that

only cash be paid instead of land for same reasons and also recommended a

residential plot be given measuring 200 sq.mt. in a rural rehabilitation

centre or cost will be given to each major married son. The existing scheme

for grant of interest subsidy on loan for construction of house is

recommended. The Government accepted the same and stated that it shall be

the responsibility of the State Administration based on the census, voters'

lists, and if necessary, separate house to house survey may be conducted

and that additional family members of the landless agricultural labourers

as on 19.7.1990 would also be eligible to receive the recommended ex-gratia

amount as for the fully affected land owner families. The identification of

agricultural landless labourers and their additional family members shall

be decided by State Administration. The recommendation for allotting 200

sq.m. residential land or cash in lieu thereof, to each married son of the

rural land owner family was not accepted by the Government. It is contended

on behalf of the petitioners that HRC's recommendations should be accepted

by the Government but the Government has formulated another scheme instead

of what is recommended by HRC and have suggested payment of ex-gratia

amount in the same manner as is given in respect of the affected families

and, therefore, no exception can be taken to the decision of the

Government.

The villages were identified by HRC as fully affected where 75% or more

families are fully affected. HRC recommended that in the partially affected

villages [where less than 75% families are fully affected], the fully

affected families will have the option of resettling else where with

rehabilitation provisions or remain in the unaffected part of the village.

The families that remain there will be allotted land on pattas from the

left over surplus land. The Government accepted the recommendations as to

the categorisation of the fully and partially affected families and also

stated that they would be entitled to rehabilitation benefits as admissible

in the existing policy and all additional family members of those families

would also be entitled to receive ex-gratia payment of Rs.33,000. It is

contended on behalf of the petitioners that HRC recommendation should have

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been fully accepted by the Government. It was made clear by the Government

that the partially affected families that remain in these villages shall be

entitled to be allotted submerged land on pattas subject to availability

during the low reservoir level periods for temporary cultivation admissible

under the existing policy. It is contended on behalf of the petitioners

that the practice of allowing cultivation in submerged land during low

reservoir level periods leads to enhanced siltation of reservoir and,

therefore, should be discouraged. The view taken by the Government is that

even after accepting the recommendations made by HRC a condition is imposed

that during the low reservoir level periods, land should be given for

temporary cultivation not otherwise. Therefore, it cannot be said that such

a condition is unreasonable.

The next objection raised by the petitioners is in regard to the house

construction assistance to each married son and major unmarried sons and

major unmarried daughters @ Rs.60,000 and payment of this amount is linked

with the progress of construction and shifting. The Government did not

accept the same and ordered that the additional members of urban entitled

house owner families of Tehri Town as on cut-off-date of 6.6.1985 would

also be eligible to draw ex-gratia of Rs.33,000, which, it is stated, has

been subsequently enhanced. For similar reasons stated earlier, objections

raised on behalf of the petitioners stand rejected.

As regards the rehabilitation programme, the status is that socio-economic

study concerning the living standard of resettled families was got done

through the Administrative Staff College of India, Hyderabad, which

revealed that the quality of life of the resettled families is far above

and better than what was the situation before rehabilitation. A well

defined R&R Policy and Package has been formulated by the Government of

U.P. and THDC for Tehri Project affected families which has been improved

from time to time to take care of changing requirements. The rehabilitation

of affected families of the project is now being handled by the Government

of Uttaranchal. As a part of Phase II programme covering about 2500 fully

affected rural families to be affected families due to reservoir

impoundment, additional land has been identified and is being provided and

acquired in Hardwar and Dehradun Districts. Approval of 275.20 hectares of

land at Pashulok and 1083 hectares of land at Pathari Block, on lease

basis, has been accorded by the Government for resettlement of the

remaining fully affected rural families. In addition, proposal for

acquisition of about 900 acres of land in District Hardwar and Dehradun is

being processed. The State Government proposes to complete rehabilitation

by June 2003.

The present status of the urban rehabilitation programme covers Tehri Town

involving a total of 5291 families falling within the cut-off date of 6th

June, 1985. The rehabilitation package available for them is as follows :

(i) "Under Urban resettlement programme, affected families are being

rehabilitated at the New Tehri Town [NTT] or at Rishikesh and Dehradun, as

per their option. Apart from compensation for their existing/shops and

other structures at the Old Tehru Town, land/house owner oustees are

provided with plots at a nominal cost for building their houses. The

tenants at the old Tehri Town are being given built-up flats, on payment on

subsidised terms.

(ii) For the urban shop-keepers, shops have been constructed at NTT,

Rishikesh and Dehradun.

(iii) The details of the Urban Rehabilitation Package are given in the

rehabilitation policy booklet enclosed hereto as Annexure IV."

As regards the rural rehabilitation, the policy is :

1. Rural oustees to be compensated through allotment of agricultural

land or cash in lieu thereof.

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2. The rural oustees should be settled in large blocks so that the

fabric of their social life remains intact.

3. Oustees or their representatives be involved to the extent possible

in selecting the rehabilitation centres.

4. To the extent possible, consideration be given to the preference of

the oustees for settlement at a particular center.

5. Community facilities be provided at each of the rural

rehabilitation centers at the cost of the project even if these did not

exist at their earlier settlements.

It is further pointed out that package has been further unproved from time

to time without changing its basic features and the details of the

rehabilitation are set out in Annexure V. Various facilities provided are

set out in Annexure VI. The progress of the rural rehabilitation is as

follows:

___________________________________________________________________________

____

"RURAL DISPLACED FAMILIES

Activity Total Fully Affected Families** Families Rehabilitated/

Paid compensation %age Progress

Phase-I 2064 2034 98.50

Phase-II 3365* 973 29.00

TOTAL 5429 3007 55.38

*In addition to these fully affected families, 3810 families are

partially affected who are not to be relocated but are to be paid cash

compensation for their part-land coming under submergence. Besides, they

would be provided all other benefits as laid down in the Policy for them.

**The figures are based on the survey conducted by Rehabilitation

Directorate, Government of Uttaranchal in 2001.

___________________________________________________________________________

______

PRESENT STATUS OF RURAL REHABILITATION

s. Description No. of Total No. of Fully No. of fully

Balance

No. affected land Affected affected

affected of fully

Villagers affected Families families

families affected

(in acres) to be rehabilited

families

rehabilitat- from

ed rehabilition

1 2 3 4 . 5 6 7 8

1 Full 37 2293.93 3355 3355 2883 472

submerged/

Affected Area

2 Partially 72 1936.911 5884 2074 124

1950

Submerged /

Affected Area

TOTAL 109 4930.841 9239 5429 3007 2422

Add 5% Extra (for landless persons + increase families since last survey) :

121

___________________________________________________________________________

__________

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BALANCE FAMILIES OF TEHRI DAM FOR RESETTLEMENT : 2543.

Note : (i) Above details are based on survey conducted in the year 2001.

(ii) *3810 families are partially affected families, which are not to be

shifted."

A socio-economic study of the families rehabilitated was conducted by the

Administrative Staff College of India, Hyderbad in March 1993. Similarly,

the Estimates Committee of U.P. Legislature has also visited some of the

resettlement colonies in 1989 and an extract from their report reads as

follows :

"The Committee during its visit inspected the resettlement colonies at

Bhaniawala, Raiwala and Pathri Block The Committee found that the

facilities provided in these colonies are better than any village in the

country. There are well laid roads. There is provision for street lighting.

Piovisions for Irrigation and Drinking water are available. Efforts have

been made to provide the facilities of Hospitals and Schools."

There have been several further improvements in the rehabilitation package

for the Project affected families. House construction assistance for Old

Tehri land owners was increased from the minimum of Rs. 60,000 to Rs.

1,25,000 without any deduction of previously paid compensation which

corresponding increase in other slabs. Thus, the amount of house

construction assistance admissible to urban house/land owner families as

under :

1. Tenants to be provided constructed flat at lower rate of pre-1989 cost

i.e., @ Rs. 1819 per sq.m. in place of Rs. 3771 per sq.m. The hire purchase

scheme, therefore, as mentioned in the rehabilitation policy has been

withdrawn.

2. The shop keepers of old Tehri town to be provided shops in NTT/

Dehradun/Rishikesh at pre-1989 cost i.e., @ Rs. 1440 per sq.m. in place of

Rs. 3707 per sq.m.

3. The Government of Uttaranchal have on 7.7.2001 allowed to the

shopkeepers of Old Tehri Town a goodwill grant varying from Rs. 1 to 3 lacs

on handing over the possession of their shops. 620 shopkeepers have been

paid this amount upto 31.10.2001.

4. The Government of Uttaranchal have also allowed 46 nos. of advocates

who were practicing before year 1985 to receive a grant of Rs. 1.50 lacs

each, distribution of which is under process.

Further proposals have also been made for changes in the conditions of

eligibility for allotment of 2 acres of land for such of those persons who

had sold their holding to meet emergent needs before the issue of Section

4(1) notification under the Land Acquisition Act, grant of house

construction allowance to rural families, increase in the amount of cash

grants for purchase of seeds and fertilizers, and increase in the amount of

cash in lieu of land allotment to Rs. 5 lacs as against the existing limit

of Rs. 2 lacs. Proposals had since been discussed with the Government of

India in inter-ministerial meeting held on 14.12.2001. Further

developmental activities are also to be carried out including construction

of bridges and roads, establishment of degree and intermediate colleges in

rural areas, an ITI, upgradation and setting up of hospital/medical

facilities, improvement of electricity lines and sub-station, etc. The

Government further gives the details of the land available and the proposed

number of families for resettlement. For grievance redressal certain camps

had been organised by the Director, Rehabilitation approved by the

Government and a grievance redressal cell is functioning in the

Rehabilitation Directorate, Uttaranchal Government. Coordination Committee

under the Chairmanship of the Commissioner, Garhwal and Co-chairmanship of

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the CMD, THDC and having Government officials and public representatives as

its members, monitors the progress and coordinates between different

departments about the progress of work and redresses the difficulties

experienced by different departments and partially affected families and

give its decision/directions. The Government has also set out details on

the Project Works to which reference at this stage may not be necessary.

On the question of resettlement and rehabilitation, the first phase

covering those affected due to construction of coffer dam and closure of

diversion tunnels T3/T4 is complete and in the second phase, all remaining

families to be affected due to impoundment of reservoir would be

rehabilitated. Details of the same are set out as under :

"Urban Total Affected Families:

5291 [100% families have been compensated in the form of houses, plots and

shops except affected families from Koteshwar dam]

Gramin Total Affected Families:

9239 [Compensation paid - 7291 compensation yet to be paid -1948]."

It is no doubt true that in regard to certain aspects such as Catchment

Area Treatment, conditions imposed are not fully implemented and it is not

very clear from various affidavits filed whether in regard flora and fauna

also the conditions have been fulfilled or not. When pari-passu conditions

have been imposed, it is necessary that the conditions are fulfilled along

with the construction of the engineering works. In refuting the contention

of the petitioners that impoundment in the reservoir has been done before

the pari-passu implementation of environment and forest conditional

clearances, it is stated as follows:

"Diversion tunnels on the right bank, T3/T4 have been closed in December

2001 for taking up construction of stilling basin and shaft spillway. The

reduced levels of T3 and T4 tunnels are 606 M and 609 M respectively.

Diversion tunnels on the left bank, Tl/ T2 have been kept open for

discharging the water downstream. The reduced level of both Tl and T2 is

the same viz., 632 M. The current quantity of discharge remains unabated

from the discharge prior to the start of project construction. There is no

alteration/ reduction in quantity of water discharged from the river prior

to taking up the project and as of now. The maximum discharge in the river

observed during floods in the year 1978, that is 3669 cumecs.

Impoundment in the reservoir is generally done for the purpose of deriving

benefits from the storage by creating facility for irrigation, drinking

water supply, power generation etc. As a matter of fact, none of the

benefits are presently accruing from the project at the current stage.

Diversion tunnels T3/T4 have been closed for taking up construction of

stilling basin before they are permanently closed."

It is submitted on behalf of the respondents that the initial impoundment

in the reservoir will start with the closure of diversion tunnels T1/T2 and

water level rising to EL 700 M. The maximum draw down level is EL 740 M.

The reservoir spread at EL 700 M will be 10 sq. km. Compared to full

reservoir spread at 830 M of 44 sq.km. The present water spread of

reservoir at EL 632 M is 1.2 sq.km. only. It is also made clear on behalf

of the respondents that this implied that commensurate safeguards in the

works related to Catchment Area Treatment, Command Area Development,

Rehabilitation and resettlement, protection of flora and fauna, disaster

management plan, etc. are ensured along with the progress of the

construction works and it was also implied that the completion of project

meant rise in water level in the reservoir and simultaneously increase in

the water spread.

It is made clear that the condition of pari-passu implementation of

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conditions prior to the commissioning of the project shall be closely

monitored under the existing mechanism set up by MoEF and the project

authorities will ensure that prior to closing of diversion tunnels T1/T2

for impoundment of the reservoir, evacuation, resettlement and

rehabilitation are completed in all respects. In addition, the catchment

area treatment of direct draining areas shall be completed and the project

authority will obtain clearance from MoEF before closing the outlet at EL

700 M. An additional affidavit has also been filed on behalf of the Union

of India to the effect that a high level inter-ministerial review committee

would be constituted consisting of Secretaries of all the concerned

Ministries of the Central Government to examine various aspects and closely

monitoring of the same. It is only after the completion of these

conditions, impoundment would start. This categorical statement made by the

respondents should assure the petitioners that no impoundment would be

allowed until all the conditions in the Environmental Clearance Certificate

of the Tehri Dam dated July 19, 1990 are complied with and stand fulfilled.

The petitioners have disputed that the respondents have complied with the

conditions of clearance. But a careful analysis of their pleadings will

indicate the dispute is to the extent of compliance only and not that there

is no compliance at all. On behalf of the Union of India a status report

supported by an affidavit is filed which indicates that there is

substantial compliance with all the conditions. We have in detail discussed

the various facts set out in the said affidavit and status in the earlier

portion of this order.

In this background, we find that the petitioners have not established or is

there any material to conclude that the Project work is being carried on

without complying with the conditions of clearance. Though there were

certain lapses at certain stages, they were taken care of by monitoring

agencies.

To ensure that all the conditions for environmental clearance are fulfilled

and for proper monitoring, we transfer all these cases to the High Court of

Uttaranchal to be dealt with by a Division Bench. The High Court shall deal

with these matters as if filed before it and shall be at liberty to pass

any orders. However, it is made clear that it shall not be open to re-

examine the matters such as safety of the dam and other aspects relating to

implementation of conditions contained in the Government orders which have

been decided in this case. This course we are adopting following a line of

cases in Indian Council For Enviro-Legal Action v. Union of India & Ors.,

[1996] 5 SCC 281; M.L. Sud & Ors. v. Union of India & Ors., [1992] Supp. 2

SCC 123, and Mohan Chand v. Union of India & Ors., [1995] Supp. 3 SCC 425,

which were all cases filed under Article 32 of the Constitution and in one

of the cases, which pertained to environmental issues, it was observed as

follows :

"As far as this Court is concerned, being conscious of its constitutional

obligation to protect the fundamental rights of the people, it has issued

directions in various types of cases relating to the protection of

environment and preventing pollution. For effective orders to be passed, so

as to ensure that there can be protection of environment along with

development, it becomes necessary for the court dealing with such issues to

know about the local conditions. Such conditions in different parts of the

country are supposed to be better known to the High Courts. The High Courts

would be in a better position to ascertain facts and to ensure and examine

the implementation of the anti-pollution laws where the allegations relate

to the spreading of pollution or non-compliance of other legal provisions

leading to the infringement of the anti-pollution laws. For a more

effective control and monitoring of such laws, the High Courts have to

shoulder greater responsibilities in tackling such issues which arise or

pertain to the geographical areas within their respective States. Even in

cases which have ramifications all over India, where general directions are

issued by this Court, more effective implementation of the same can, in a

number of cases, be effected, if the High Courts concerned assume the

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responsibility of seeing to the enforcement of the laws and examine the

complaints, mostly made by the local inhabitants, about the infringement of

the laws and spreading of pollution or degradation of ecology."

[See : Indian Council For Enviro-Legal Action's case (supra), at p. 301]

Proceedings arising under Article 32 need not always be dealt with by this

Court alone and in appropriate cases suitable directions, including

transfer of the matter, can be issued to High Courts or other authorities

(Like, National Human Rights Commission) to deal with such matters. Thus,

we find that it is legal and expedient to transfer these cases to the High

Court of Uttaranchal.

Accordingly, with these directions, this petition shall stand disposed of.

T.C. (C) NO. 50/1996, T.C. (C) NO. 51/1996, T.C. (C) NO.52/1996, T.C. (C)

NO. 53/1996 :

In the light of the orders made in Writ Petition No. 295 OF 1992, these

Transferred Cases shall stand disposed of in the same terms as set forth

above.

DHARMADHIKARI, J. : Having carefully perused the opinion of learned Brother

S. Rajendra Babu J. I find myself unable to agree with him that no

directions to the respondents in this Writ Petition are required. In my

considered opinion, looking to the dimensions and implications of the case

on environment and human rights a monitoring mechanism is required to be

set up and activated to ensure compliance of the conditions on which

clearance was granted to the construction of a dam in Himalayan Valley near

Tehri. It may be legal but not efficacious to transfer this writ petition

under Article 32 of the Constitution of India to the High Court of

Uttaranchal for monitoring the compliance of the conditions on which

environmental clearance was given to the Tehri Dam Project. With utmost

respect, therefore, I have considered it necessary to record my separate

opinion with conclusions containing the directions which are required to be

issued to the respondents in theis writ petition.

Learned Brother S. Rajendra Babu J. has in detail given necessary facts an

events leading to the fillign the writ petition. I would, therefore,

confine myself to giving the necessary background on which my opinion and

conclusions are based. In this writ petition under Article 32 of the

Constition of India filed by the petitioners in public interest, directions

are sought to be issued to the respondents, representing the authorities

and Corporation or Union and State Governments, to take necessary measures

for protecting environment and human rights which are likely to be

adversely affected by construction of Dam in the Valley of Himalayas near

Tehri town of the new State of Uttaranchal.

The rivers Bhagirathi and Bhilangana rise from glaciers in the Himalayas,

part of Garhwal of erstwhile North-Western UP and now part of the new State

of Uttaranchal. The two rivers flow south to the plains to form confluence

as the Holy river Ganga. Close to the Garhwal town of Tehri at the

confluence of two rivers Bhagirathi and Bhilangana more than three billion

$ clay core rockfill dam is beign constructed in the upper Ganga basin. The

dam area will cover 45 kms. Bhagirathi valley and 25 kms. Bhilangana valley

with water spread over an area of 42.5 sq. kms. which will submerge nearly

100 villages including the town Tehri as many as 90,000 families will be

relocated as the result of the dam project. The Government of India and the

State of Uttranchal claim that the dam project had undertaken to generate

2,400 mg. watt of electricity and will create irrigation facilities for

2,070 lakh hectares of land. There are plans also to create supply of 500

cusecs of water of New Delhi.

Human Rights and environment activists have approached this Court to

protect the interest of general public and particularly the people living

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in Tehri town and in surrounding area of Garhwal who are likely to be

dispalced fo completion of the Project. They have also raised issues of

great importance such as the safety of the Dam and the likely devastation

and loss of properties and lives of the people in the down stream, if the

Dam, being situated in a highly earth quake prone area, bursts or leaks. It

is stated that structurally the dam may be incapable of withstanding

earthquake of above seven on Richter scale. It is submitted that great

danger is posed to down stream cities and population particularly the holy

Pilgrim centres like Haridwar and Rishikesh which are in danger zone. The

structural flows of the dam and rehabilitation policies provoked public

agitation and international attention. The Dam Project was stopped which

had begun in 1978. A petition was filed in this Court by Tehri Banch

Virodhi Sangh Samiti in the year 1985 for intervention of the Court to stop

construction of the Dam as it puts great threat to the safety and lives of

the people living in surrounding villages and towns and also holy places

down stream. The petition was dismissed by this court and the decision is

reported in [1992] Suppl. 1 SCC 44. The Court relied on the techincal data

furnished by the Government which had prepared the Plans for Tehri Dam

Project and held that since all aspects of safely have been taken into

account by Indian and foreign Experts, the Court has no ground before it to

restrain the authorities from proceeding ahead with the implementation of

the Project.

In the year 1986, the Soviet Union agreed to fund the project with loan on

concessional terms. As a part of the agreement with the Government of India

for funding the Project, the Soviet Experts conducted a review of the

proposed Project and gave a finding that the highest seismicity of the

Tehri area had not been adequately taken into consideration by Indian

planners. The combined Soviet and Indian teams also found that the life of

the Dam claimed to be 100 years may not be accurate and its life would be

62 years or less. They also found that about 85,600 people would be

displaced by the project.

At this stage of hearing of the case, several developments which took place

in the interregnum are required to be stated. As a result of public

agitation and protest from the people of Garhwal region to the Project for

construction of Dam, in March 1980, the then Prime Minister of India

intervened and directed an in-depth review of the Project by an expert

group constituted by the Ministry of Science and Technology. The technical

group submitted its report in 1986 and recommended abandonment of the

Project despite expenditure already incurred in the sum of Rs. 2,006

crores. Environmental Appraisal Committee (EAC) which is a Expert Body

within the Ministry of Environment and Forests recorded a unanimous

conclusion that Tehri Project did not merit environmental clearance and

should be dropped. The Tehri Project was thereafter revived only when USSR

Government agreed to provide technical and financial assistance. The Dam

Project which was initially taken up by the Irrigation Committee of

erstwhile State of Uttar Pradesh was taken over by a joint venture company

of Government of India and State Corporation viz., Tehri Hydel Development

Corporation (respondent herein). The Corporation took over the construction

of Dam in July 1988. The Corporation reformulated Environment Policy. It

was in February 1990 that the EAC in the Ministry of Environment and

Forests came to the conclusion that taking into consideration the risks and

hazards involving ecological and social impact with huge cost and less

benefits, the Dam Project does not merit environmental clearance. The exact

words of EAC are as under :

"Therefore, taking into consideration the geological seismic setting, risks

and hazards and ecological and social impact accompanying the Project, the

costs benefits expected and and after a careful examination of the

information and data available, the Committee has come to the unanimous

conclusion that Tehri Dam Project, as proposed, should not be taken up as

it does not merit environmenal clearance".

In normal course, the conclusion of the EAC should have closed the matter

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for abandoning the Project, Surprisingly, the continuance of the Project

was entrusted to a Committee of Secretaries. The Committee re-assigned the

task to the Department of Mines. The Department of Mines relied on the

opinion of Prof. Jaikrishna who is an earthquake Engineer when Dr. V.K.

Gaur who is seismologist had given a dissenting opinion and so also the

foreign expert Dr. N. Brune.

It is after this re-appraisal of Project from safety point of view by the

Department of Mines based on the expert opinion of earthquake Engineer

Prof. Jai Krishna, clearnance given was given on 19.7.1990 to the Project

by the Ministry of Environment and Forests. Since by this time the

Environment Protection Act 1986 with Environment Protection Rules framed

therefunder had already come into force making it a statutory requirement

to obtain clearance from the Environment Department for undertaking the

Project of such dimension affecting environment, ecology and human beings,

only a conditional clearance was granted to the Project. The various

conditions subject to which the environmental clearance to the Project was

granted have been reproduced in the opinion of learned Brother S. Rajendra

Babu J.

The final condition stated thus: if the completion of studies, formulation

of Action Plan and their implementation to be scheduled in such a way that

their execution is pan passu with the engineering works is not adhered to,

all engineering works of the Project should be stopped and this condition

will be enforced under the Provision of Environment Protection Act 1986.

The Ministry of Environment and Forests wrote a letter on 12.4.1991

expressing dis-satisfaction on failure to comply with the conditions on

which environmental clearance was given. The respondent-Corporation was

directed to submit comprehensive Environmental Plan for effective

implementation failing which remedial or prohibitive action under the Act

of 1986 was proposed.

On 5.1.1991 the petitioner gave a notice under Section 19B of the Act to

the Secretary of the Ministry of Environment and Forests stating that the

result of non-fulfillment of condition of clearance of the Project by the

Corporation, direction should be issued to stop the Project work.

Significantly, after service of this notice on 21.10.1991 an earthquake

measuring 6.1 on Richter scale hit the Garhwal region causing massive

damages to Uttarkashi and Chamoli villages killing 2,000 people. Damage was

also caused to constructions for dam already made and Tehri town itself.

The Power Ministry, however, maintained that half finished Dam works, were

not damaged. This earthquake which shook Garhwal region naturally revived

dabates and protests on the location of the Dam and its safety in such a

highly earthquake prone region. The petitioners again raised the question

as to whether the Dam as designed and completed would withstand likely

earthquakes of more than 6.1 on Richter scale. The present petition was

filed on 7.12.1991 in which issues of safety of the Dam, its adverse impact

on environment, displacement of people and their rehabilitation have all

been raised. Specific issue has been raised that due to non-fulfillment of

the condition of environmental clearance, there is no legal justification

to allow further construction works at the Dam site.

In the communication dated 21.10.1994, Additional Director, Ministry of

Environment clearly mentioned that after grant of clearance in 1990, 'the

status of implementation of various safeguard measures were lagging far

behind'. It was also pointed out that there is an urgent need to evolve

monitoring mechanism for the Tehri Dam Project. On 5.12.1995 through an

intervention application a leading Human Righ Activist of Garhwal Shri

Sunder Lal Bahuguna sought opportunity of participation in the case by

producing on the soot studies of the impact of the Project on the

environment and the people of the region.

On the orders of this Court made in this petition on 17.7.1996 the

Government set up two Expert Committees; one on the safety aspects and

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other on the environment and rehabilitation aspects. The case stood

thereafter adjourned several times awaiting the report of the Expert

Committees. The subsequent developments were reported to this Court that

the Reports of the Committees were under consideration of National

Committee of seismic design parameters and an Inter-Ministerial Committee

of Secretaries of the Department of Environment and Rehabilitation. On

27.10.1998, an affidavit was filed by Secretary, Ministry of Power

indicating that the State Government has given its concurrence to the

Report of the Committee on Environment and Rehabilitation aspects.

On 2.2.1999 again an affidavit was filed by the Secretary, Ministry of

Power placing on record the Government of India's decision to implement the

recommendations of both the Committees. In the said affidavit it was also

stated that the Government had issued a final order accepting conclusions

of group of experts on safet aspects. It is reported, that there is no

necessity to undertake further steps as recommended by the experts viz. (1)

3-D Non-Linear Analysis of Dam to evaluate its performance against the

maximum credible earthquake (2) Simulated Dam Brake Analysis suggested to

be undertaken as a matter of abundant caution by the four experts. It may

be mentioned that in the mean time the new State of Uttranchal having been

formed comprising Garhwal in which the site of dam falls, the State of

Uttranchal has been impleaded as the successor to the erstwhile State of

Uttar Pradesh.

The learned counsel appearing for the petitioner and the intervener in

their separate submissions mainly raised two questions based on the

constitutional law and the statutory laws i.e. the Environmental Act and

the Rules framed thereunder. The thrust of the argument is that from safety

aspect and from adverse impact on environment and human life of the area

and more so when conditions on which clearance to the Project had been

given have not been fulfilled, this Court should interdict the Project at

least till all conditions are fulfilled to the complete satisfaction of the

Department of Environment, and this Court. It is undeniable that execution

of river valley projects is an important element of growth and development

strategy. The dams have become symbol of national development. The dams too

have potentials of solving many economic problems. Control of floods,

famines, food shortages, unemployment, urban water shortages and the power

shortages are all possible with the help of execution of such dams. These

projects do have benefits but they have adverse environmental implications.

Tehri dam project is in the valley on Himalayas. The Dam project would

involve ousting of thousands of poor villagers and farmers living in the

valley. The old Tehri town would be under submergence. The new Tehri Town

has been raised and being developed. The basic environmental issues are

saving the flora and fauna that is abounding the region. The other aspect

is of danger to the upstream and down stream human population because Tehri

dam area and surrounding Uttarkashi area had already suffered successive

earthquakes in short intervals and the area is known to be seismically

unstable. It is held by the exprets, as earthquake-prone. The Project will

also destroy and has already destroyed to a large extent forest tracks.

Along the river deforestation has endangered the river itself and after

impounding of water there would be large scale erosion of river bank. When

such projects are undertaken, there are competing claims of technocrats and

engineers eager to put the country on the path of development and

environmentalists who see a serious danger to ecology and environment.

These are the two conflicting claims and aspects which need Court's

intervention for a balanced approach and consequential remedial action. The

problem before the country with more and more dam projects being undertaken

is how to make use of natural resources for improving human health, welfare

and comfort without depleting or damaging them over a foreseeable period of

time. A strategy for conserving or resources-effective use of non-renewable

resources is the imperative demand of modern times. Whereas, minimum

sustainable development must not endanger the natural system that supports

life on earth, constant technological efforts are demanded for resources-

effective production, so that sacrifice of one eco-system is counter

balanced or compensated by recreating another system.

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(See discussion on the topic in the Book 'Environmental Solution and

Development' authored by Chander Pal at pages 198-201 & 236-237)

By river valley dam projects ther are adverse up-stream impacts and down

stream impacts on environment. The upstrem environmental and ecological

impaccts of big dams are :

(1) Soil erosion (2) micro-climatic changes (3) loss of forests, flora &

fauna (4) changes in fisheries, especially on spawning grounds (5) chain

effects on catchment area due to construction and displacement etc. (6)

landslips, siltation and sedimentation (7) breeding of vectors in the

reservoir and increase in related diseases (8) seismicity (9) loss of non

forest land (10) water-logging around reservoir (11) growth of weeds.

Down stream impacts

The down stream environment impacts of the large dams are :

(1) Water-logging and salinity (2) micro-climatic changes (3) reduced water

flow and deposition in river, with related impacts on aquatic eco-system,

flora and fauna (4)flash floods (5) loss of land fertility along with river

(6) vector breeding and increase in related diseases.

These adverse effects have long term and irreversible loss of quality of

human life and other creatures in the region. In order to meet such adverse

impact on environment, a thorough environment impact assessment has to be

made before the clearance of the dam. The Department of Environment and

Forests has prepared detailed guidelines before a project is cleared.

Wherever certain conditions for clearance are imposed they are to be

strictly adhered to.

There are economic costs as well as social costs and environment costs

involved in a project of construction of large dam. The social costs is

also too heavy. It results in wide spread displacement of local people from

their ancestral habitat and loww of their traditional occupations. The

displacement of economically weaker sections of the society and tribals, is

the most series aspect of displacement from the point of view of uprooting

them from their natural suroundings. Absence of these surroundings in the

new settlement colonies shatters theri social, cultural and physical links.

The large dam projects are, therefore, required to be taken care by the

Government with utmost concern of the poor and the deprived sections of the

society who are necessarily to be displaced from their habitat and shifted

to a totally new environment and way of life. The poor and the marginalized

group in carrying out of a dam project suffer most because the natural

resources-base of their survival are eroded and cash compensation of land

at a different location many times does not fully rehabilitate them. The

dams are built by public funds with the aim to satisfy the energy and water

needs but what benefit ultimately it would give to the displaced people

should also be taken care of. The conflicts over natural resources which

frequently come to Courts are therefore conflicts over rights between haves

and haves not.

The protest of ecologists, as is brought before us in this Public Interest

Litigation, is not to be seen as obstructionists and anti-progress because

the petitioners are actuated by desire to obstruct ecological destruction

and to halt the process that results in progress for a few and hardships

for many.

The Government can utilize the natural resources for common good but cannot

be allowed to exploit or virtually plunder it in a manner to deprive those

presently sustaining their lives on those natural resources and deprive the

coming generations who have also a right of living on those resources. On

these fundamental issues, there is a cleavage between technological

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experts, environmentalists and human rights activists. The court is faced

with an issue not easy to decide as to which Section of experts and

environmentalists is right in their approach.

Ours is a constitutional democracy and we are called a 'Welfare State'.

"Welfare" not mean that we have only to strive for fulfillment of political

theory "Greatest good of greatest number". Our motto from vedic times has

been sarva jan Hitay, sarva jan sukhai (benefit of all and happiness of

all).

Our Vedic prayer is ....

"Let all be happy, let all be sin-free, let everyone see good in

everything. There should be no suffering anywhere. "

It is, therefore, necessary that when a multimillion big dam project is

undertaken to generate electricity and for providing water for irrigation

and dirnking, we should not leave those living by the side of river from

generations to a suffering by displacement to a far off place which would

deprive them of their life and life style. In the march of progress, the

humblest and the weakest should not be left behind. Man living in the hills

or valleys is dependant for survival on natural resources. To remove him

and rehabilitate him in the plains is taking a fish from the river and

putting it into a artificial reservoir or an equarium where it might

survive but can never be happy. All efforts are, therefore, required to be

made that the dispalced or oustees, who were hitherto getting benefits form

the river for their survival, are adequately compensated by minimum

possible disturbance to their life sources and style of life. In

implementation of large river dam projects the utmost concern of the State

should be interest of the oustees. Before electricity is generated and

drinking water is made available to urban population up to Delhi, care has

to be first given to the needs and demands of the people who live in the

hills and valley and face ouster. Before the reservoir is full to its

optimum capacity to generate electricity and provide irrigation, the work

of rehabilitation to the optimum satisfaction of the oustees must be

completed. In this direction, the affidavit filed by the Ministry of

Environment, does not vouchsafe that the work of rehabilitation has been

completed to the satisfaction of not only the officials of the

rehabilitation department but the oustees themselves speaking individually

or collectively.

On behalf of Union of Inida and the Tehri Development Corporation, the

separate reply on affidavit has been filed to counter the allegations made

by the petitioner that the conditions granted in the order of clearance

given by the Ministry fo Environment have not been complied with Learned

counsel Shri Kirit Rawal made strenuous effort by taking us through to the

several reports of the committees received from time to time. The

techinical data and other information collected in this matter of

fulfillment of the conditions of clearance have all been placed before us.

The submission made is that where the conditions imposed for clearance are

to be implemented pari passu with the engineering works, it is comtemplated

by the conditions themselves that side by side with the engineering work,

the conditons to protect environment for treatment of catchment area,

development of Common Area and rehabilitation will go on. In a project of

such huge dimensions involving multifarious engineering and non-engineering

activities, fulfillment of conditions laid down to undertake the Project

have to be taken up simultaneously with the construction work of the dam

and proportionately with the progress of engineering work. A Chart to show

such progress has been submitted by Tehri Development Corporation to

impress upon this Court that although the time schedule has not been

strictly adhered to because of the several difficulties and obstructions in

the progress of the project, the conditions have been achieved in

proportion to the engineering work already taken. It is submitted that

Corporation is not guilty of non-fulfillment of the conditions and no

prohibitive action is called for.

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So far as the safety aspects of the dam are concerned, reliance is placed

on the technical opinion of the exoerts, which says that a rock fill dam

does not require three-dimensional studies to estimate its safety against

earthquake. It is submitted that such computer based three-dimensional

studies have been found to be only of theoretical value. Two-dimensional

test already done fully ensures safety of the 'dam against an earthquake

even up to 7 on Richter Scale. It is submitted that the two-dimensional

studies of the dam is made on an assumption that the impact of earthquake

of 7 or more Richter Scale would be uniform throughout the length and

breadth of the dam. The experts have found such two-dimensional studies

sufficient for the safety of the dam. Suggestion of only one of the experts

for conducting a three-dimensional test only by way of an abundant caution

has been found by the team of experts neither feasible nor desirable.

Attempt has also been made by filing item-wise comments that various

recommendations of Hanumantha Rao Committee were in-depth gone into by

Inter-Departmental Committee and most of the recommendations except a few

have been accepted and also substantially implemented in proportion to the

construction work already undertaken.

On behalf of the Corporation, a categorical statement has been made that

until all the conditions for the clearance are not fulfilled, Tunnel Nos. 3

& 4 shall not be opened and the reservoir shall not be filled beyond its

present water level. People presently living in the catchment area in Tehri

town would not be evacuated till they are paid either cash compensation or

land in lieu thereof, with shelter. The Corporation has also presented

before us in the course of hearing Status Report of fulfillment of the

various conditions at the project site up to 31.01.2003.

The project for construction of large dams has been undertaken to provide

electricity and irrigation facilities. From environmental and social

prospective, large dams raise variety of issues. They entail massive

incursions into natural eco-system and human settlements. When the project

is undertaken, it is asserted that these incursions can be minimised by

appropriate steps like Environmental Impact Assesssment and preventive/

ameliorative measures. It is with this porpose that the Environmental Act

and rules require the project to take care of the adverse impact on

environment and human population. Environmental clearance now is a legal

requirement. A machanism has also been evolved for evalution of the

environmental impact and its monitoring. Construction of large dams are

accompanied by significant alterations in the up-stream and the downstream,

physical and biological environment. For building reservoirs, large track

of forest lands get submerged. Water logging and salinasation affect the

canal irrigated land with varying degrees of severity. Several species of

wild animals and plants become extinct. There is a likelihood of several

diseases like Malaria spreading.

On the positive side, the alleviation of water scarcity leads to

improvement in the health standard of people and reduction in diseases

caused by shortage of potable water. Barren lands become green. New

habitats are created for water birds.

In order to take care of the negative aspects of the large dams, the

conditions for clearance generally require:-

1. Compensatory afforestation.

2. Treatment of catchment area to prevent prematured silt in other

aspects.

3. Measures to prevent or minimise water logging and salinasation in

the command area and around the reservoir.

4. Measures to prevent and minimise impact on health.

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5. Safeguards against ill effects to the seismicity.

6. Ways of saving translocated wild plants and animals.

7. Proving alternative fules to project labour and ladders for migrant

fish to cross over the dam.

The Tehri Dam Project has obtaind a clearance and a major portion of the

dam has already been constructed. The catchment area has not been filled

with water as the two diversion channels having gates have not been closed

for filling the dam. This is the right stage when there is necessity of

close monitoring, evaluation and reappraisal of work to ascertain

compliance of the conditions and check adverse impact on environment as

also ensure rehabilitation of the people displaced from the dam area and

the old Tehri town. In the instant case, the Corpration claims that it has

fulfilled the conditions pari passu with the engineering works. This high

claim is with the admission that the time Schedule in the condition of

clearance has not been kept up. This is the proper stage when a thorough

assessment by a team of experts in relevant branches is required to be

undertaken for ascertaining whether the conditions of clearance have been

fulfilled pari passu with the engineering works. If this is not done before

the dam is allowed to be filled, adverse impact caused on environment would

be irreversible and would not be compensated because of the severe scale of

the ecological intervention. The mistake that might have been done in the

past with regard to other similar large and small dams should not be

allowed to be repeated in the Tehri Dam Project which is different from

other dam Projects in plains. Tehri dam being located in the Himalayas the

adverse environmental impact would both be up-stream and down-stream.

Meticulous care and precaution, therefore, is required to be taken for a

dam which is being constructed on a high altitude area posing threat to

downstream population. If the safety aspects are not fully taken care of

and the command area treatment is not done to the desired level or

standard, the consequence may be catastrophic and beyond repair.

Only two aspects, in my considered opinion, need special attention and

consequent directions by this Court to the concerned authorities

represented through the respondents in this case.

1. Safety aspect of the Dam:

Tehri Dam have been cleared for construction in a seismically, unstable,

earthquake prone area in the valley of Himalayas.

The project was earlier not cleared on the opinion of the experts as a

severe earthquake could burst the dam and destroy several important

temples, towns and holy places like Rishikesh and Haridwar. There are other

thickly populated towns and villages down stream. The members of the

Environmental Appraisal Committee (EAC) which has an expert body within the

Ministry of Environmental amd Forest had earlier unanimously concluded that

the Tehri project did not merit environment clearance and should be

abandoned. Thereafter, a Committee of Secretaries of concerned Departments

was constituted which did not agree with the EAC's recommendations. A

dissenting note was submitted by expert Dr. V.K. Gaur to the Committee of

Secretaries. The Committee then assigned reassessment of the task of safety

to the department of mines. Professor Jai Krishna an earthquake engineer

but not a seismologist opined in favour of the project. The foreign expert

Professor James D. Brune was a seismologist who did not favour the project

due to safety aspect involved.

On safety aspects the matter was brought to this Court in case reported in

Tehri Bandh Virodhi Sangarsh Samiti and Ors. v. State of U.P. & Ors.,

[1992] (supp) 1 SCC 44 by environmentalists. This Court while refusing to

interfere with the matter went by the opinion of Earthquake Engineer

Professor Jai Krishna. In his own language, "The design of the Tehri Dam as

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suggested by Indian and Soviet experts was quiet safe against the strongest

earthquake in the region".

The petitioners in this case on the basis of expert's opinion of Professor

Jai Krishna and foreign expert James D. Brune submitted that as an extra

precautionary measure 3-D Non-Linear Analysis of the dam should be

undertaken to evaluate its performance against the maximum possible

earthquake. A simulated Dam Break Analysis (DBA) has also been suggested by

the four experts as a matter of abundant caution.

On behalf of the respondents the counsel separately appearing for different

departments and the project authorities have taken uniform stand that 3-D

Non-Linear Analysis is neither essential nor feasible for want of necessary

competent expertise in India and even abroad. It has also been argued that

challenge to safety aspects have been negatived in the earlier decision of

this Court rendered in 1992 and the project was allowed to go ahead and by

now has progressed to a very large extent.

On the safety aspect of the dam particularly when the location of the dam

is in a highly earthquake prone zone in the valleys of Himalayas, all

additional safeguards are required to be undertaken on the 'precautionary

principle' as contained in 'the RIO Declaration on Environment and

Development' taken in the United Nation conference held in January 1992 to

which India is a party. The precautionary principle in RIO declaration

reads:

"In order to protect the environment, the precautionary approach shall be

widely applied by State accordingly to their capabilities. Where there are

threats of series of reversible damage lack of full scientific certainty

shall not be used as a reason for postponing cost effective measures to

prevent environment degradation"

[Emphasis supplied]

The precautionary principle accepted by India being a party and

significatory to international agreement and understandings in the field of

environment has become part of domestic law i.e. Environmental (Protection)

Act. The Governmental authorities in India cannot be permitted to set up

plea of scientific uncertainty of 3-D Non-Linear Analysis of the dam. On

the safety aspect the pleas like res judicata based on earlier decision of

this Court cannot be allowed to be raised when further developments and

events in the course of the project require further precautions to be taken

before filling the dam to the optimum capacity. It is not the casse of the

respondents that 3-D Non-Linear Analysis of the dam cannot be undertaken

with the assistance of foreign experts on the subject. To take care of all

eventualities of damage to dam by earthquake, 3-D Non-Linear Analysis of

the dam suggested by four experts as a matter of abundant caution must be

undertaken. It is only after 3-D Non-Linear Analysis of the dam is

completed and the opinion of the experts on the safety aspect is again

sought that further impoundment of the dam should be allowed. In M.C. Mehta

v. Union of India (Trapezium matter), [1997] 2 SCC 353 this Court has

applied 'Polluter pays principle' and 'Precautionary principle' of

International law as law of the land of this country, India being party to

the United Nation Conference and signatory to International Declarations

and Agreements.

Requirement of the provisions of the Act and the conditional clearance

Before taking up the rehabilitation aspect for issuing necessary directions

it is required to be stated that in accordance with the provisions of

Section 3 of Environment Protection Act, 1986 and Rule 5 of the

Environmental Rules 1986, the Tehri Dam Project was granted conditional

clearance. A notification dated 27th January, 1994 has been issued under

the Act and the rules on Environmental Impact Assessment of Development

Project. Under the said notification an Environmental Impact Assessment is

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required to be made by the Impact Assessment Agency. Without a proper

environmental impact assessment no project can be accorded environmental

clearance. In the present case the environmental clearance was given on

19.7.1990 before the issuance of the notification on 27th January, 1994 on

the Environmental Impact Assessment of Development Project. Nonetheless,

the directions and guidelines contained in the said notification have to be

applied even to the existing dam projects and a strict monitoring of the

Impact of the project of the environment has to be done by the Central

Government through its Ministry of Environment and Forests. The clearance

to the project was given in the year 1990 on amongst others the following

specific condition "completion of status, formulation of action plans and

their implementation will be scheduled in such a way that their execution

is pari passu failing which the works could be brought to a halt". This

condition was enforceable under the provisions of Environment (Protection)

Act, 1986.

The letter of the Secretary of Ministry of Environment and Forest to the

Secretary Ministry of Labour dated 12.4.1991 clearly shows failure on the

part of Tehri Haydel Development Corporation (THDC) to comply with the

conditions granted for environment clearance. The Ministry has expressed

total dissatisfaction on the compliance. The petitioners gave a notice

under Section 19(b) of the Act on 5.9.1991 to the Authorities pointing out

that non-fulfillment of the conditions provided in the environment

clearance within the stipulated time-frame has resulted in lapse of said

clearance and the work of project should be stopped forthwith. On

20.10.1991 earthquake of 6.6 on ritchter scale hit Uttarkashi causing

immense destruction of property and life. The uncompleted dam also suffered

trauma but no damage was reported. Even during pendency of this petition

successive earthquakes shook Uttranchal regions in the vicinity of dam

site. Thereafter, the petitioners had been constantly writing to the

authorities that for want of non-fulfillment of the conditional clearance

the project construction work should be stopped. There is on record a note

dated 21.10.1994 of Additional Director of Ministry of Environment

recording that although the environment clearance was granted to the

project in the year 1990, 'the status of implementation of various

safeguard measures were lagging far behind'. It was also pointed out in the

note of the Director that there was an urgent need 'to evolve a monitoring

mechanism for the Tehri Dam Project'.

Where the requirements of law as contained in the Act, the Rules and the

notification issued thereunder contemplate imposition of conditions for

clearance to a project to minimise its adverse impact on environment, the

Authorities granting such clearance possess a power couple with duty and

obligation to ensure fulfillment of the conditions on the basis of which

the environmental clearance is granted. We are sorry to note that in the

face of so may conflicting expert opinions on the project undertaken in a

highly earthquake prone region the conditional environmental clearance was

granted without monitoring the work of the project to ensure fulfillment of

those conditions.

A strict vigil on fulfillment of the conditions of environmental clearance

was required by the Ministry of Environment and Forest and stringent action

should have been taken against the Authorities for not adhering to pan

passu condition of clearance. In the latest affidavit filed by the Ministry

of Environment and Forest it is promised that in future strict monitoring

of the fulfillment of the conditions granted for environment clearance

would be done. Granting a conditional clearance is not a mere formality.

The power to grant clearance even though with conditions was accompanied by

duty on the part of the Ministry to have effective check on the progress of

project and ensure fulfillment of the conditions in accordance with pari

passu clause. Since the Ministry of Environment and Forest has failed to

discharge its duty of exercising proper check on the fulfillment of pari

passu clause of conditional clearance, it is necessary to provide an

independent mechanism through a forum of inter-departmental authorities and

experts so that the project presently undertaken by the Corporation which

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the aid, asistance and finances provided by the States, Central Goverment

and the World Bank is allowed to progress and be completed strictly on

fulfillment of the conditions on which environmental clearance was granted.

2. Rehabilitation aspect

The Ministry of Environment and Forests has filed an affidavit before us

showing the present position of progress in resettlement and rehabilitation

activities undertaken as part of fullfillment of the conditional clearance

of the project. It may be recalled that the Ministry of Welfare of

Government of India in the year 1985 initiated a Rehabilitation Policy. It

came to be approved only in the year 1997. Thus the National policy,

Packages and Guidelines for resettlement and rehabilitation accept the

following principles :-

1. Displacement should be minimised. So people displacing projects should

be the last option after studying non-displacing and least displacing

projects, and if this is the only alternative.

2. The public purpose based on which people are displaced or otherwise

deprived of their livelihood should be defined. Prior informed consent to

be affected by it should be mandatory after the project is explained to

them and if they see that is according to the public purpose thus defined

properly.

3. Replacement value to be the norm for compensation, against the present

norm of market value which is totally inadequate.

4. Right to life with dignity enshrined in Article 21 of the Constitution

should be respected. So, the displaced persons should have a better

lifestyle after displacement than before it because they are paying the

price of national development.

5. Displaced Persons (DPs/PAPs) should be the first beneficiaries of any

project.

6. Rehabilitation is mandatory and should go on side by side with the

project.

7. Land for land is recommended to all and is mandatory for tribals.

Compensation is to be provided for common property resources and forest

lands that may be acquired from their dependants.

8. The DPs/PAPs are defined in a way as to include not only land onwers

but also those who depend on it without owning it, and those who have

common property resources as their sustenance. This Court in the case of

Karjan Jalasay Yojana Assargrasth Shakhar Ane Snagharsh Samiti v. State of

Gujarat, AIR (1987) SC 532 has held thus:

"Simultaneously with taking possession of the acquired land from any person

in occupation of it, such person shall be provided either alternative land

of equal quality but not exceeding three acres in area and if that is not

possible, then alternative employment where he woud be assured a minimum

wage......No possession of any part of the acquired land shall be taken

from any person unless and until he is either provided with alternative

land or alternative employment which is not temporary in character so that

he and the members of his family do not remain without means of

subsistance... if for any reason the State Government is not able to

provide alternative land or arrange for alternative employment, the State

Government will subject to the same exception, pay to the head of the

family at the latter place of residence compensation equivalent to minimum

wage every fortnight during the period alternative land or employment is

not provided."

The above directions of this Court in the case of Karjan Jalasay (supra)

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were based on the factual realities that for most marginal farmers and

tribals monetary compensation for acquisition of land can never be

sustainable source of dignified living. A new piece of alternative land of

equal quality should be given to those dispossessed from land due to

acquisition for public purpose. In the last affidavit submitted by Ministry

of Environment and Forests before us to show the status of the progress of

rehabilitation.....as on 3rd February, 2003, the figures disclose that out

of total 9,239 rural affected families cash compensation is not paid to

1,948 families and 260 families affected by Koteshwar Dam have also not

received cash compensation.

For providing agricultural land to farmers who have been ousted it is

stated that land is being acquired down the valley in the vicinity of

Dehradun city. The Government has thus been involved in exercise of

rehabilitating the dam oustees on acquired land from other land holders who

in turn will have to be ousted. This will give rise to chain reaction of

making other people landless. The process has not yet been completed and

according to the affidavit of the Ministry itself the work of resettlement

and rehabilitation is underway.

When natural resources are exploited in a big way for big projects by State

with all sincerity and good intentions for general common benefit, social

conflicts arise as a natural adverse consequence. Generally the conflicts

arise between marginal farmers, peasants and other landless persons who

survive on natural resources and those who are better off, rich or affluent

and who desire to undertake agriculture and industry. When river projects

for dams are undertaken to generate electricity and improve irrigation

facilities, conflicts arise between people living up-stream who have to

necessarily lose their source of living and habitat and those living down-

stream who need water and electricity for their homes, industries and

agricultural fields. When such social conflicts between different social

groups i.e. up-stream population and down-stream population, between rural

population and urban population, between poor surviving on natural

resources and others needing natural resources for further development

arise what should be the duty and priorities of the State and its

authorities who have undertaken the projects? When such social conflicts

arise between poor and more needy on one side and rich or affluent or less

needy on the other, prior attention has to be paid to the former group

which is both financially and politically weak. Such less advantaged group

is expected to be given prior attention by Welfare State like ours which is

committed and obliged by the Constitution, particularly by its provisions

contained in the Preamble, Fundamental rights, Fundamental duties and

Directive Principles, to take care of such deprived sections of people who

are likely to lose their home and source of livelihood.

Mistakes in resettlement and rehabilitation of people ousted by other

similar Projects committed in the past have to be avoided. The construction

of dam cannot be allowed to proceed and be completed leaving the oustees

high and dry.

The oustees of Tehri Dam Project who are used to valley life in Himalayas

are proposed to be resettled and rehabilitated in newly built Tehri Town

and those depending on forest and agriculture and proposed to be given cash

compenation or land down-stream near Dehradun city. The Ministry of

Environment and Forests (MoEF) in their last affidavit has given a status

report to show that resettlement work is in progress but not completed. In

the affidavit it is promised as under :

"The Project authority shall ensure that prior to closing of diversion

turnnels T1/T2 for impoundment of the Reservoir; evacuation, resettlement

and rehabilitation are completed in all respects. In addition, the

catchment area and treatment of direct draining areas etc. shall be

completed. The Project Authority shall obtain clearance from MoEF before

closing the outlet at EL 700 m."

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The RIO declaration of environment and development in the United Nations'

Conference held in June 1992 to which India was a party and signatory and

on which the Environment Protection Act, its Rules and Policies are

modeled, obligates the Authorities of India by the norms fixed in

International and Domestic Law that "the environmental and natural

resources of people under operation, domination and occupation shall be

protected." A mention has already been made above of the lates

rehabilitation policy framed by the Government of India and relevant part

has been quoted. These legal and policy obligations are enforceable against

the State.

In my considered option, therefoe, the present status of dam project,

keeping in view the pan passu condition on which "environmental clearance"

has been granted by MoEF, calls for issuing following directions to the

respondents who represent various Ministries & departments of Central and

State Government as also the Corporation to which the project has been

entrusted for implementation.

(1) The Central Government in terms of the recommendations of Expert

Committee for Environmental Impact Assessment as contained in Schedule III

of the Notification dated 27th January, 1994 issued in exercise of powers

under sub-section (i) and Cl.V of sub-section (2) of Section 3 of

Environment (Portection) Act, 1986 read with Cl.(f) of sub-Rule (3) of Rule

5 of Environment (Protection) Act, 1986 shall constitute a Committee of

Expertrs and representatives of NGOs (if not already constituted) for the

purpose of investigating, ascertaining and reporting whether the pari passu

condition laid down in the environment clearance of the Project have been

fulfilled or not by the authorites of the Project. The aforesaid committee

will inspect and report on the status of the work to the Central Government

every three months and in case the conditions, as laid down in the

clearance, are not fulfilled recommend the remedial or corrective measures/

actions.

(2) To take care of the safety aspect,until 3-D Non-Linear Analysis and

Dam Break Analysis are completed as recommended by the Committee on safety

and the result assessed by the aforesaid Expert Committee is submitted to

the Central Government, diversion tunnels T1/T2 for impoundment of the

Reservoir shall not be closed.

(3) The Expert Committee for environment Impact Assessment constituted

under Schedule III of Notification dated 27th January 1994 will also look

into and submit status report on the progress of resettlement and

rehabilitation measures. There will be no impoundment of the Reservoir

untill resettlement and rehabilitation work is fully completed in all

respects.

(4) An effective Grievance Redressal Cell headed by an independent expert

in the field of social science shall be set up by the State Government with

the help of Central Government for solving rehabilitation and resettlement

problems of the oustees of the Project. The Grievance Redressal Cell shall

submit its status report every three months to the Expert Committee

constituted under Schedule III of the notification (supra).

This writ petition succeeds to the extent of directions made above.

All connected matters and applications also stand disposed of. The

petitioners shall be entitled to all costs incurred by them in prosecuting

these petitions in public interest from the respondents who will share them

in equal proportion.