NARMADA BACHAO ANDOLAN ETC. ETC. v. UNION OF INDIA AND ORS

Citation: [2000] SUPP. 4 S.C.R. 94

Court: Supreme Court of India

Bench: A.S. ANAND, S.P. BHARUCHA, B.N. KIRPAL

Judgment text

NARMADA BACHAO ANDOLAN ETC. ETC. v. UNION OF INDIA AND ORS. OCTOBER 18, 2000 [DR. A. S. ANAND, C. J. , S. P. BHARUCHA AND B. N. KIRPAL, JJ. ] Constitution of India-Articles 32 and 226-Public Interest litigation- Scope of-No directions can be issued which are against legal provisions. Constitution of India-Articles 32 and 226-Judicial Review-Scope of-Courts cannot transgress into the field ofpolicy decision-Government deciding to construct a dam-No violation oflaw or malafide--Held, Courts cannot sit in appeal over the policy decision of the Government. Constitution of India-Articles 32 and 226-laches-Project for construction of dam approved 25 years ago-Huge investments made- Petitioner agitating against construction since 1986-Writ Petition filed in 1994-Held, Petitioner cannot challenge the construction after such lapse oftime.

Constitution ofIndia-Article 32-Public Interest litigation-Petitioner challenging the construction of a dam on the ground that adequate steps were not taken for relief and rehabilitation of the oustees and that the adverse environmental effects were not taken into account-Award ofTribunal constituted under Inter States Water Disputes Act, 1956-Award laying down the measures to, be taken for reliefand rehabilitation ofthe oustees-Several authorities set up for monitoring the implementation ofthe Award as per the direction of the Tribunal-Authorities to see that measures to protect environment are also taken-Held, relief and rehabilitation and environmental concerns had been taken care of-Courts can only see if the Authorities are discharging their duties or not.

Environment (Protection) Act, 1986-Section 3-Decision to construct a dam-Environmental clearance given on the basis ofavailable studies and surveys which were not complete-Conditions imposed to complete environmental safeguards pari passu with the project work-Held, the environmental clearance cannot be said to be invalid-Constitution oflndia- NARMADA BACHAO ANDOLAN v. U. 0. 1. 95 Article 32. Environment (Protection) Act, 1986-Section 3-Polluting industries __. __ and projects-Precautionary Principle and Polluter-pays principle- Applicability of-Held, would be applicable if the extent ofdamage likely to• be caused is not known-Burden of proof-Held, would be on the person who wants to change the status quo if the extent of damage likely to be caused is not known-Indian Evidence Act, 1872-Section 102.

Inter State Water Disputes Act, 1956-Section 5(2) and 5(4)-Award ofthe Tribunal-Final and binding on parties-Third party cannot challenge the Award The Petitioner was agitating against the construction of the Sardar Sarovar Dam since 1986. In the present case the Petitioner had challenged the decision of the Govemment of India and the concerned State Governments to construct the dam in the Narmada river basin by way of the present Writ Petition filed in 1994. The idea ofdevelopment ofthe Narmada river system was first mooted in 1946. The State ofGujarat granted administrative clearance Stage I of the project in 1961. The project was inaugurated on 5. 4. 1961 and preliminary work started. However, due to disagreement between the concerned States the project could not be implemented.

The State ofGujarat filed a complaint under Section 3 ofthe Inter States Water Disputes Act, 1956 stating that water dispute had arisen between the State ofGujarat and the States of Madhya Pradesh and Maharashtra over the use, distribution and control ofthe waters ofNarmada river. The Government of India constituted a Tribunal and referred the dispute to the Tribunal. While the dispute was still pending before the Tribunal, a forma. 1 agreement was entered into on 12. 7. 1974 between the Chief Ministers of the States of Madhya Pradesh, Maharashtra and Rajasthan and the Advisor to the Governor ofGujarat sorting out several issues which the Tribunal would otherwise have decided. However, dispute in respect of the height of the dam remained. The parties to the agreement agreed that the Tribunal would decide the said issue of height after considering the submission of the parties.

If was also noted that the Narmada project should no longer be delayed in the best regional and national interests. The Tribunal declared its final award on 7. 12. 1979. The Tribunal examined the issues regarding allocation, height of the dam, hydrology and other related issues. The Tribunal decided that the height of the Sardar Sarovar Dam would be at Full Reservoir Level 455 feet. The Tribunal issued directions regarding submergence of land, acquisition of land and the . i..... , rehal:»ilitation of displaced persons. The Tribunal directed that no submergence of any area should take place unless tht oustees are rehabilitated. The Tribunal further directed constitution of Narmada Control Authority, an inter State administrative authority, for the purpose of securing compliance with and implementation of the decision and directions of the Tribunal.

The Tribunal also directed constituting a Review Committee consisting of the Union Minister for Irrigations as its Chairperson and the Chief Ministers of Madhya Pradesh, Gujarat, Maharashtra and Rajasthan as its members. The Review Committee could review the decisions of the Narmada Control Authority and the Sardar Sarovar Construction Advisory Committee. In order to carry out the directions of the Award. The Inter States Water Disputes Act, 1956 was amended and Section 6-A was inserted. Thereafter, the Government of India framed a scheme and constituted Narmada Control Authority to give effect to the Award of the Tribunal. In 1987 the Narmada Control Authority created independent machinery of Environment Sub-group to ensure that the environmental safeguards were properly planned and implemented. On 15. 12. 1980, the Central Water Commission referred the Sardar Sarovar Project to the Department of Science and Technology for environmental clearance.

A meeting ofthe Environment Appraisal Committee of the Department of Environment was held on 12. 4. 1983 in which the project was in principle approved. In January J985, the Department of Environment and Forests of the Government ofIndia issued "Guidelines of Environmental Impact Assessment of River Valley Projects". The Guidelines noted the undesirable consequences of the river valley projects and the need to consider the environmental aspects along with other feasibility considerations. According to the Guidelines the cost of proposed remedial and mitigative measures, such as compensatory afforestation, to protect the environment had to be included in the cost of the project. The Guidelines stipulated that the Union of- India should give environmental clearance only after a) all the necessary data in respect of the environmental impact of the project had been collected and assessed; (b) the NARMADA BACHAO ANDOLAN v. U. 0. 1.

97 assessment showed that the Project could proceed; and (c) the environmental safeguard measures, and their cost, had been worked out. Thereafter, there were several meetings convened by various ministries for discussing issues relating to environment. In October, 1986 the Ministry of Water Resources forwarded a Note to the Ministry of Environment and Forests detailing the surveys/studies as well as work remaining to be done along with the time schedule therefor. The Note observed that delay was being caused due to inadequacy of the material for evaluation of the environmental impact of the project. It was opined in the said report that considering the importance and the urgency of the project and its benefits so far as power and irrigation facilities are concerned, it should be cleared from the C, environmental angle, subject to conditions and stipulations.

The Department of Environment and Forests made its own assessment and opined that formulation ofcatchment area programme, wildlife census by the Zoological Survey of India and survey by the Botanical Survey of India would take about three years. It finally decided that ifthe Government should decide to go ahead with the project it should be done with the provision of environment management authority with adequate power and teeth to ensure that environment management plan is implemented Pari passu with the engineering and other works. The matter relating to grant of environmental clearance was referred to the Prime Minister's Secretariat for clearance. On 19. 12. 1986 the Secretary, Ministry of Environment and Forests sent a Note to the Secretary to the Prime Minister on the environment aspects of the Narmada Sagar Project and Sardar Sarovar Project.

In the Note, it was mentioned that due to inadequacy of the available data, it was not possible to assess the impact of the loss of habitat on the wildlife and the overall loss of biological diversity and genetic reserves. It was mentioned that the projects were at fairly advanced stages of preparedness. The Note recommended the ;l establishment of Narmada Management Authority with adequate powers and teeth to ensure that the Environmental Management Plan did not remain only on paper but was implemented pari passu with the engineering and other works. The Additional Secretary to the Prime Minister prepared a Note dated 15. 1. 1987. The Note mentioned that the Department of Environment and Forests had recommended conditional approval of the project. The Prime Minister opined that it was perhaps good time to try for River Valley Authority. On 24. 6. 1987 the Ministry"of,Environment and For_ests granted ·conditional approval to the projects.

The conditions stipulated that (i) The Narmada Control Authority would ensure that environmental safeguard measures are planned and implemented pari passu with the progress of the work on the project. (ii) The surveys/studies assured would be carried out as per the proposed schedule. (iii) The Catchment Area treatment programme and the rehabilitation plans would be so drawn as to be completed ahead of reservoir filling. (rv) The Department of Environment and Forests should be kept informed of the progress on various works periodically. On 5. I0. 1988 the Planning Commission approved investment in the project with the direction to comply with the conditions laid down in the environmental clearance of24. 6. 1987. Before this Court the Petitioner contended :- HEIGHTOFTHE DAM I. Having regard to the hydrology, the finding of the Tribunal is not correct and the height of the dam should be reduced from 455 feet. (This argument was also advanced by the State of Madhya Pradesh.

) DISPLACEMENT OF TRIBALS 2. The forcible displacement of the tribal population from the project affected area was not in the national or public interest. It was in violation of Article 21 of the Constitution of India. It was also in violation of Article 12 of the ILO Convention, to which India was a signatory, which stipulated that the tribal population should not be removed from their lands without their free consent except in accordance with national laws and regulations or reasons relating to national security or in the interest of national economic development. Article 12 further stated that when the removal of the tribal population was necessary as an exceptional measure, they should be provided with land ofquality at least equal to that of the land previously occupied by NARMADA BACHAO ANDOLAN v. U. 0. 1. 99 them and they should be fully compensated for any resultant loss or injury. According to the Petitioner, .

the Respondents had not shown that the displacement of the tribal population was required as an exceptional measure. 3. The projects were not in the best national interest and was not solution to water problems. The projects would touch only the fringes of the drought prone areas of Kutch and Saurashtra. . - RELIEF AND REHABILITATION 4. As a result of construction of the dam over 41000 families and 245 villages would be affected. The authorities have considered only the families affected by submergence as project affected families. There is no scheme for rehabilitation of several other families that would be affected by the project. 5. The Narmada Control Authority has under estimated the total number of affected families and the land required for these families' rehabilitation• ... 6. The relief and rehabilitation p,,:1'.. ages in the different States were different thereby restricting the choice of the oustees.

This would lead to a -situation where the oustees would be forced to shift to Gujarat, where the rehabilitation package was more favourable. 7. There were a large number of persons living in the submergence area who were not farmers and would lose their livelihood due to loss of the community and/or river. They were not being properly rehabilitated. 8. There was a need for an independent monitoring agency in respect of re-settlement & rehabilitation as the Re-settlement & Rehabilitation Subgroup merely endorses the assertions made by the Government. 9. There was a clear requirement laid down by the Tribunal of villagewise communication rehabilitation in respect of the State of Gujarat. The ',.. _ oustees were not offered a chance to re-settle in Gujarat as a community and thus the order of the Tribunal was violated. 10. There was no provision for grazing land and fuel wood for the project affected families. JJ.

The rehabilitated people did not have adequate facility of irrigation at the place of their rehabilitation. ENVIRONMENTAL CLEARANCE 12. The environmental clearance given to the project in 1987 was without proper application of mind. The relevant surveys/studies were not available at ·the time ofgranting of the environmental clearance. 13. As the deadline for completion of the studies was not met till 1990, the Ministry of Environment and Forests had declared that the environmental clearance given to the project had lapsed. The Ministry of Environment and Forests made a request to the Ministry of Water Resources for seeking extension of the clearance but ultimately no extension was sought and given. .. OTHER ENVIRONMENTAL ISSUES 14. As per the letter dated 24. 6. 1987 whereby environmental clearance was given to the project, the catchment area treatment programme was not to be done pari passu but was required to be completed before impoundment.

However, the impounding began in 1994 and the catchment area treatment programme had not been completed by then. 15. That there was need for some independent agency to examine the various studies and action plans because if the studies and plans were not properly done or implemented, the 'area, which were supposed to benefit, would end up being rendered unfit for cultivation. 16. The compensatory afforestation was being carried outside the project impact area and on wastelands or lesser quality land, which would result in forest of a lesser quality. 17. The downstream impacts of the project would destroy fisheries and will result in salt-water ingress. 18. The area of submergence would include several sites of archaeological importance and the. construction of the dam would mean loss of rich historical legacy. 19. The impact of the project on the flora and fauna would be severe.

The studies in respect of flora and fauna had been completed only recently and action plans were still awaited in many cases. 20. The project would have serious impacts on health around the submergence area and in the command area. NARMADA BACHAO ANDOLAN v. U. 0. 1. 101 21. The Ministry of Environment and Forests has abdicated i. ts responsibility by accepting the studies and progress report of the Environmental Sub-group at the face value and without verification. Dismissing the Writ Petition by majority, the Court HELD : Per Kirpal, J. {for himself and Dr. A. S. Anand, C. J. ) PUBLIC INTERFST LITIGATION I. I. Public Interest Litigation was an innovation essentially to safeguard and protect the human rights of those people who were unable to protect themselves.

With the passage of time the Public Interest Litigation jurisdiction has been ballooning so as to encompass within its ambit subjects such as probity in public life, granting of largesse in the form of licences, protecting environment and the like. But the balloon should not be inflated so much that it bursts. Public interest litigation should not be allowed to degenerate to becoming Publicity Interest Litigation or Private Interest Litigation. (218-C-DI 1. 2. While exercising jurisdiction in Public Interest Litigation cases Court has not forsaken its duty and role as a Court of law dispensing justice in accordance with law. It is only where there has been a failure on the part of any authority in acting according to law or in non-action or acting in violation of the law that the Court has stepped in. No directions are issued which are in conflict with any legal provisions.

Directions have, in appropriate cases, been given where the law is silent and inaction would result in violation of the Fundamental Rights or other legal provisions. (218-E-Fl JUDICIAL REVIEW .. 2. 1. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the Court does not transgress its jurisdiction. There is in our Constitutional framework a fairly clear demarcation of powers. The Court has come down heavily whenever the executive has sought to impinge upon the Court's jurisdiction. At the same time, in exercise of its enormous power the Court should not be called upon or undertake Governmental duties or functions. The Courts cannot run the Government nor the administration indulge in abuse or non-use of power and get away with it. The Courts must, therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest.

It is precisely for this reason that it has been consistently held by this Court that in matters of policy the Court will not interfere. When there is a valid law requiring the Government to act in a particular manner the Court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words, the Court itselfis not above the law. 1218-F-H; 219-A-Bl 2. 2. In respect of public projects and policies which are initiated by the Government, the Courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration. In a democracy, welfare ofthe people at large, and not merely ofa small section of the society, has to be the concern of a responsible Government.

If a considered policy decision has been taken, which is not in conflict with any J law or is not ma/afide, it will not be in public interest to require the Court to go into and investigate those areas which are the functions of the executive. When two or more options or views are possible and after considering them the Government takes a policy decision it is then not the function of the Court to go into the matter afresh and, in away, sit in appeal over such a policy decision. 1219-B-El 2. 3. The courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy making process and the Courts are ill equipped to adjudicate on a policy decision so undertaken.

The Court, no doubt, has a duty to see that in the undertaking ofa decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. 1217-G-H; 218-AI LACHES 3. 1. Any challenge to a policy decision relating to an infrastructural project must be before the execution of the project is undertaken. Any delay in the execution of the project means over run in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches if the Petitioner had the knowledge ofsuch a decision and could have approached the Court at that time. Just because a petition is termed as a Public Interest Litigation does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them. 1218-A-B) 3. 2. The Petitioner which had been agitating against the dam since 1986 NARMADA BACHAO ANDOLAN v. U. 0. 1.

103 is guilty of laches in not approaching the Court at an earlier point of time. The Narmada project, in principle, was cleared more than 25 years ago. After the environmental clearance was given the construction of the dam was undertaken and hundreds ofcrores have been invested before the Petitioner chose to file a Writ Petition in 1994 challenging the decision to construct the dam and the clearance as was given. 1136:H, E, Gf 3. 3. When such projects are undertaken and hundreds of crores of I public money is spent, individual or organisations in the garb ofPublic Interest iiiiiilL Litigation cannot be permitted to challenge the public decision taken after lapse of time. It is against the national interest and contrary to the established principles of law that decisions to undertake developmental projects are .. , permitted to be challenged after a number ofyears during which period public money has been spent in the execution of the project. 1137-A-Bf HEIGHT OFTHE DAM 4. 1.

The Tribunal had in no uncertain terms come to the conclusion that the height of the dam should be 455 ft. It had rejected the contention of '"> the State of Madhya Pradesh for fixing the height at a lower level. Any issue which has been decided by the Tribunal would, in law, be binding on the - respective States. Once the Award is binding on the States, it will not be open to a third party like the Petitioner to challenge the correctness thereof. 1138-B-C; 139-Df The State ofKarnataka v. State ofAndhra Pradesh and Ors. , 120001 9 sec 572, relied on. 4. 2. One of the indicators ofthe living standard ofpeople is the per capita - consumption ofelectricity. There is, however, perennial shortage of power in India, and therefore, it is necessary that the generation increases. In India there is more reliance now on thermal power projects. But these thermal power projects use fossil fuels, which are not only depleting fast but also ~ contribute towards environmental pollution.

Global warming due to the greenhouse effect has become a major cause ofconcern. On the other hand, the hydel power's contribution in the greenhouse effect is negligible and it can be termed ecology friendly. Not only this but the cost of generation of electricity in hydel projects is significantly less. The Award of the Tribunal has taken all these factors into consideration while determining the height of the dam at 455 ft. 1224-E-H; 225-AI DISPLACEMENT OF TRIBALS 5. 1. The rehabilitation package contained in the Award of the Tribunal as improved further by the State of Gujarat and the other States primafacie shows that the land required to be allotted to the tribals is likdy to be equal, if not better, than what they had owned. It is apparent that the tribal population affected by the submergence would have to move but the rehabilitation package was such that the living condition would be much better than what it was before.

Article 12 of the ILO Convention clearly suggested that when the removal of the tribal population is necessary as an exceptional measure, they shall be provided with land ofquality at least equal to that of the land previously occupied by them and they shall be fully compensated for any resultant loss or injury. (143-H; 144-A; 143-D; 143-G-Hl 5. 2. The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were. At the rehabilitation sites they will have more and better amenities than which they enjoyed in their tribal hamlets. The gradual assimilation in the main stream of the society will lead to betterment and progress. (145-G-Hl 5. 3. The allegation that the Sardar Sarovar Project was not in the national or public interest is not correct.

Dams play a vital role in providing irrigation for food security, domestic and industrial water supply, hydroelectric power and keeping flood waters back. There would be a positive impact on preservation ofecology as a result from the project. The project by taking water to drought-prone and arid areas of Gujarat and Rajasthan would effectively arrest ecological degradation which was returning to make these areas inhabitable due to salinity ingress, advancement ofdesert, ground water depletion, fluof'. ide and nitrite affected water and vanishing green cover. There will be improvement of fodder availability, which will reduce pressure on diversity and vegetation. The Sardar Sarovar Project by generating elean eco- friendly power will save the air pollution which would othern:ise take place by generation power ofsimilar capacity. (144-A; 144-E; 145-D-F) Gramophone Co. ofIndia v. B. B. Pandey, [1984) 2 SCC 534; People's Union for Civil liberties v.

Union ofIndia, [199713 SCC 433 and Consumer Education and Research Centre v. Union ofIndia, 11995) 3 SCC 42, cited. RELIEF AND REHABILITATION 6. 1. In governance of the State, decisions have to be taken where there are conflicting interest. If for one set of people there were only one solution, NARMADA BACHAO ANDOLAN v. U. 0. 1. 105 namely, construction of a dam, the same would have an adverse effect on another set of people whose houses and agricultural land would be submerged in water. When a decision is taken by the Government after due consideration and full application of mind, the Court is not to sit in appeal over such decision. [220-C-DJ 6. 2. Displacement of people living on the proposed project sites and the areas to be submerged is an important issue. It is a fact that people are displaced by projects from their ancestral homes.

Displacement ofthese people would undoubtedly disconnect them from their past, culture, custom and traditions, but then it becomes necessary to harvest a river for larger good. ,,,,. A natural river is not only meant for the people close by but it should be for the benefit of those who can make use of it, being away from it or near by. A properly drafted relief and rehabilitation plan would improve living standards ofdisplaced persons after displacement. The relief and rehabilitation packages of the States, especially ofGujarat, are such that the living conditions of the oustees will be much better than what they had in their tribal hamlets. [221-C-E; 221-H; 222-AI > 7. 1. The Award of the Tribunal is binding on the States concerned. The said Award also envisages the relief and rehabilitation measures which are to be undertaken.

Iffor any reason, any of the State Governments involved lag behind in providing adequate relief and rehabilitation then the proper course for a Court to take would be to direct the Award's implementation and not to stop the execution of the project. [222-H; 223-Al 7. 2. This Court, as a Federal Court of the country especially in a case of Inter-State river dispute where an Award had been made, has to ensure that the bindh1g Award is implemented. In this regard, the Court would have the jurisdiction to issue necessary directions to the State which, though bound, chooses not to carry out its obligations under the Award. Just as an ordinary litigant is bound by the decree, similarly a State is bound by the Award. Just as the execution of a decree can be ordered, similarly, the implementation of the Award can be directed.

If there is a short fall in carrying out the re-settlement and rehabilitation measures, a time bound direction can and should be given in order to ensure the implementation. of the Award. Putting the project on hold is no solution. 1223-A-C) 8. There is a basic difference in the impacts of the projects in the upstream submergence area and its impacts in the beneficiary zone of the command area. While people, who were oustees from the submergence zone, required re-settlement and rehabilitation, on the other hand, most ofthe people falling under the command area were in fact beneficiaries o£the projects and their remaining land would get relocated with the construction of the canal leading to greater agricultural output. (193-D-E) 9. There appears to be no material on which it can be concluded that no proper surveys had been carried out for determining the number of project affected families who would be adversely affected by the construction of the dam.

Each State has drawn detailed action plan and it is after requisite study had been made that the number of project affected families have been identified. (1931-G-H; 192-Al 10. It is incorrect to say that the difference in reliefand rehabilitation packages, the package of Gujarat being the most liberal, amounts to restricting the choice of the oustees. Relief and rehabilitation packages in different States were different due to different geographical, local and economic conditions and availability ofland in the States. The liberal packages available to the Sardar Sarovar Project oustees in Gujarat are not available to the project affected people ofother projects in Gujarat. Each State has its own package and the outsees have an option to select the one which was most attractive to them. There is no requirement that the liberalisation of the packages by States should be to the same extent. (192-B-D) 11. 1.

There is no basis for contending that some outside agency or National Human Rights Commission should see to the compliance of the Tribunal Award. There is an elaborate network ofauthorities which have to see to the execution and implementation of the project in terms of the Award. All aspects of the project are supervised and there is a Review Committee which can review any decision of the Narmada Control Authority and each of the rehabilitating States have set up an independent Grievances Redressal Authority to take care that the relief and rehabilitation measures are properly implemented and the grievances, ifany, of the oustees are redres~ed. (196-E-GJ 11. 2. Dam has necessarily to be regarded as an infrastructural project. There are three stages with regard to the undertaking of an infrastructural project. One is conception or planning, second is decision to undertake the project and the third is the execution of the project.

The conception and the decision to undertake a project are to be regarded as a policy decision. Once such a considered decision is taken, the proper execution of the same should be taken expeditiously. It is for the Government to decide how to do its job. NARMADA BACHAO ANDOLAN v. U. 0. 1. 107 When it has put a system in place for the execution of a project and such a system cannot be said to be arbitrary, then the only role which a Court may have to play is to see that the system works in the manner it was envisaged. (217-B-DJ 12. 1. The requirement in the Tribunal's Award was that the State of Gujarat should establish rehabilitation villages in Gujarat in the irrigation command of the Sardar Sarovar Project on the norms mentioned for rehabilitation of the families who were willing to migrate to Gujarat. This provision could not be interpreted to mean that the oustees' families should be resettled as a homogeneous group in a village exclusively set up for each such group.

The concept ofcommunity-wise re-settlement, therefore, cannot ... derive support from the above quoted stipulation. Subsequent to the Tribunal's Award, on the recommendation ofthe World Bank, the Government ofGujarat adopted the principle that resettlement of the oustees should be relocated as village units, village sections or families in accordance with the oustees' preference. The oustees' choice has actively guided the resettlement process. 1193-F-HJ 12. 2. While re-settlement as a group in accordance with the outstees' preference was an important principle/objective, the other objectives were that the oustees should have improved or regained the standard ofliving that they were enjoying prior to their displacement and they should have been fully integrated in the community in which they were resettled.

These objectives were easily achievable if they were resettled in the command area where the land was twice as productive as the affected land and where large chunks of land were readily available. This was what the Tribunal's Award stipulated and one objective could not be seen in isolation ofthe other objectives. [194-EJ 12. 3. The underlined principle in forming the relief and rehabilitation policy was not merely of providing land for project affected families but there was a conscious effort to improve the living conditions ofthe project affected families and to bring them into the mainstream. Ifone compares the living conditions of the project affected families in their submerging villages with the rehabilitation packages first provided by the Tribunal's Award and then liberalized by the States, it is obvious that the project affected families had gained substantially after their resettlement. 1194-H; 195-AJ 13.

Grazing land was not mandated or provided for in the Tribunal's Award but nevertheless, the grazing land ofsix villages was available for use of project affected families. It may be that the grazing land was inadequate but this problem will be faced by the entire State of Gujarat and not making such land available for them does not in any way violate any ofprovisions of the Award. (195-FJ 14. Most of the resettlement of the project affected. families were provided irrigation facilities in the Sardar Sarovar Project command area or in the command areas of other irrigation projects. In many of the out of command sites, irrigated lands were purchased. In cases where the irrigation facilities were not functioning, the Government of Gujarat had undertaken the work of digging tubewells in order to avoid any difficulty with regard to irrigation in respect of those oustees who did not have adequate irrigation facilities. (195-G-Hl IS.

More than adequate steps are being taken by the State of Gujarat not only to implement the Award of the Tribunal to the extent it grants relief to the oustees but the effort is to substantially improve thereon and, therefore, continued monitoring by this Court may not be necessary. The State of Madhya Pradesh seems to be in no hurry in taking steps to effectively rehabilitate the project affected families in their home State. The State of Madhya-Pradesh is under an obligation to effectively resettle those oustees whose choice is not to go to Gujarat. (212-G; 214-C-Fl ENVIRONMENTALCLEARANCE 16. 1. ft is not possible to accept the contention of the Petitioner that the environmental clearance of the project was given without application of mind. It is more than evident that the Government of India was deeply concerned with the environmental aspects of the Narmada Sagar and Sardar Sarovar Project.

The Government was aware of the fact that number ofstudies and data had to be collected relating to environment. Keeping this in mind, a conscious decision was taken to grant environmental clearance and in order to ensure that environmental management plans are implemented pari passu with engineering and other works. (160-G-H; 161-Al 16. 2. At the time when the environmental clearance was granted by the Prime Minister whate\'·er studies were available were taken into consideration. It was known that the construction of the dam would result in submergence and the consequent effect which the reservoir will have on the ecology of the surrounding areas was also known. Various studies relating to environmental impact had been carried out. There are different facts ofenvironment and if in respect ofa few of them adequate data was not available it does not mean NARMADA BACHAO ANDOLAN v. U. 0. 1. 109 that the decision taken to grant environmental clearance was in any way vitiated.

The clearance required further studies to be undertaken and this has been and is being done. Care for environment is an on going process and the system in place would ensure that ameliorative steps are taken to counter the adverse effect, ifany, on the environment with the construction oftlte dam. - (177-D-Fl 17. There could not have been any question of the environmental clearance granted to Sardar Sarovar Project being lapsed more particularly when the Environmental Sub-group had been consistently monitoring the progress of various environmental works and had been observing in its minutes of various meetings held from time to time, about its analysis of the works done by the respective States in the matter of the status of studies, surveys and environmental action plans. (164-C-D) OTHER ENVIRONMENTAL ISSUES 18.

Environmental and ecological consideration must, ofcourse, be given due consideration but with proper channellisation ofdevelopmental activities ecology and environment can be enhanced. So far a number ofsuch river valley projects have been undertaken in all parts of India. The Petitioner has not been able to point out a single instance where the construction ofa Dam has, on the whole, had an adverse environmental impact. On the contrary the environment has improved. That being so there is not reason to suspect, with all the experience gained so far, that the position here will be any different and there will not be overall improvement and prosperity. (222-D; 222-FJ 19. 1. The 'precautionary principle' and the corresponding burden of proofon 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 ofdamage likely to be inflicted is not known. When th.

ere is a state of uncertainty due to lack ofdata or material about the extent ofdamage 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 environment ofsetting up of an industry is known, 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 ecological disaster. (175-H; 176-A-BI A. P. Pollution Control Boardv. Professor M. V. Mavadu, (199912 SCC 718; Sierra Club et. v. Robert F. Froehlke, 350 bF. Supp. 1280 (1973); Tennessee Valley Authority v. Hiram G. Hill, 437 US 153, 57 L Ed 2d 117; Arlington Coalition on Transportation v. John A. Volpe, 458 F. 2d 1323 (1972) and Environment Defence Fund, Inc. v.

Corps ofEngineers ofUnited States Army 325 F. Supp. 749 (1971), distinguished. Vellore Citizens' Welfare Forum v. Union ofIndia, (199615 SCC 647, referred to. 19. 2. In the present case, what is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry. The construction of a dam undoubtedly would result in the change ofenvironment but it will not be correct to presume that the construction ofa large dam like the Sardar Sarovar will result in ecological disaster. (176-C-DJ 20. The environmental clearance of24. 6. 1987 required the work to be dont: pari passu with the construction of the dams'and the filling of the reservoir. The Respondents had proceeded on the basis that the requirement in the letter of24. 6.

1987 that catchment area treatment programme and rehabilitation plans be drawn up and completed ahead of reservoir filling would imply that the work are to be done pari passu as far as catchment area treatment programme is concerned, with the filling of reservoir. The status of compliance with respect to pari passu conditions shows that the overall works by and large were on schedule though, there was some ·slippage in Madhya Pradesh. (167-D-FJ 21. There is no reason whatsoever as to why independent experts should be required to examine the quality, accuracy, recommendations and implementation ofthe studies carried out The Narmada Control Authority and the Environmental Sub-group in particular have the advantage of having with them the studies which had been carried out and there is no reason to believe that they would not be able to" handle any problem, ifand when, it arises or to doubt the correctness ofstudies made. (166-HI 22. 1.

Loss offorest because ofany activity is undoubtedly harmful. But · ·, it cannot be ignored and it is important to note that these large dams also cause conversion of waste land into agricultural land and making the area greener. Large dams can also become instruments in improving the environment (222-A-BI 22. 2. Wltile granting approval in 1987 to the submergence of forest NARMADA BACHAO ANDOLAN v. U. 0. 1. 11 r land and/or diversion thereof for the Sardar Sarovar Project, the Ministry of Environment and Forests had laid down a condition that for every hectare of forest land submerged or diverted for construction ofthe project, there should be compensatory afforestation on one hectare of non-forest land plus reforestation on two hectare ofdegraded forest The State ofGujarat had fully complied with the condition by raising afforestation.

If afforestation was taking place on wasteland or lesser quality land, it did not necessarily follow, as was contended by the Petitioners, that the forests would be of lesser quality or quantity. (168-C-DJ 23. Until all the dams are constructed upstream and the entire flow of river is harnessed, which is not likely in the foreseeable future, there is no question ofadverse downstream impact and the Petitioner's assertions in this regard are ill-conceived. In 1992 Sardar Sarovar Narmada Nigam Limited issued an approach paper on environmental impact assessment for the river reach downstream. The report clearly demonstrates that the construction of dam would result into more regulated and perennial flow into the river with an overall beneficial impact. (168-H; 170-A; 170-BI 24. No centrally or state protected cultural sites were located in the submergence area of the project.

The concerned State Governments carried out a complete survey ofcultural and religious sites within the submergence zone to list all Archaeological sites which, though not protected under national law, were ofsufficient value to merit relocation. (171-Al 25. A condition of environmental clearance of 24. 6. 1987 as far as it related to flora and fauna was that the Narmada Control Authority would ensure in depth studies on flora and fauna needed for implementation of environmental safeguard measures. A number of studies were carried out which indicated that with the construction of the dam, water availability and soil moisture will increase and support varieties of plants and animals. (172-E-F( 26. The area of public health was in no way being neglected. The principle features of the Gujarat Work Plan included establishment of hospital near the dam site, strengthening of laboratory facility including establishment of mobile unit residual insecticidal spraying operations etc. (173-C( 27.

There is no reason to conclude that the Environmental Sub-group is not functioning effectively. The group which is headed by the Secretary, "· Ministry of Environment and Forests is a high powered body whose work cannot be belittled merely on the basis of conjectures or surmises. 1174-F) DIRECTIONS I. Construction of the dam will continue as per the Award ofthe Tribunal. - . 1225-G) 2. As the Relief and Rehabilitation Sub-group has cleared the ...... construction up to 90 meters, the same can be undertaken immediately. Further raising of the height will be only pari passu with the implementation of the relief and rehabilitation and on the clearance by the Relief and Rehabilitation Sub-group. The Relief and Rehabilitation Sub-group will give clearance of further construction after consulting the three Grievances Redressal Authorities. 1226-B) 3.

The Environment Sub-group under the Secretary, Ministry of Environment & Forests, Government of India will consider and give, at each stage of the construction of the dam, environment clearance before further construction beyond 90 meters can be undertaken. 1226-C) 4. The permissfon to raise the dam height beyond 90 meters will be given by the Narmada Control Authority, from time to time, after it obtains the above-mentioned clearances from the Relief and Rehabilitation Sub-group and the Environment Sub-group. (226-D) 5. The States of Madhya Pradesh, Maharashtra and Gujarat are directed to implement the Award and give relief and rehabilitation to the oustees in terms of the packages offered by them and these States shall comply with any direction in this regard which is given either by the Narmada Control Authority or the Review Committee or. the Grievances Redressal Authorities. (226-F) 6. The Environment Sub-group will continue to monitor and ensure.

that all steps are taken not only to project but to restore and improve the environment. [226-G) 7. The Narmada Control Authority within four weeks shall draw up an Action Plan in relation to further construction and the relief and rehabilitation work to be undertaken. Such an Action Plan will fix a time frame so as to ensure relief and rehabilitation pari passu with the increase in the height of the dam. Each State shall abide by the terms ofthe action plan so prepared by the Narmada Control Authority and in the event ofany dispute or difficulty NARMADA BACHAO ANDOLAN v. U. 0. 1. 113 arising, representation may be made to the Review Committee. However, each State shall be bound to comply with the directions of the Narmada Control Authority with regard to the acquisition of land for the purpose of relief and rehabilitation to the extent and within the period specified by the Narmada Control Authority. (226-H; 227-A-B) 8.

The Review Committee shall meet whenever required to do so in the event of there being any un-resolved dispute on an issue which is before the Narmada Control Authority. In any event the Review Committee shall meet at least once in three months so as to oversee the progress ofconstruction of the dam and implementation of the relief and rehabilitation programmes. If for any reason serious differences in implementation of the Award arise and the same cannot be resolved in the Review Committee, the Committee may refer the same to the Prime Minister whose decision, in respect thereof, shall be final and binding on all concerned. [227-C-DI 9. The Grievances Redressal Authorities will be at liberty, in case need arise, to issue appropriate directions to the respective States for.

due implementation of the relief and rehabilitation programmes and in case of non implementation of its directions, the Grievances Redressal Authorities will be at liberty to approach the Review Committee for appropriate orders. (227-El 10. Every endeavour shall be made to see that the project is completed as expeditiously as possible. [227-El Per Bharucha, J. (dissenting) 1. When the Writ Petition was filed by the Petitioners, the process of relief and rehabilitation, such as it was, was going on. The Writ Petitioners were not guilty of any laches in that regard. When the public interest is so demonstrably involved, it would be against public interest to decline relief only on the ground that the Court was approached belatedly. (246-A-B] 2. The catchment area treatment programme and the rehabilitation plans were required to be "so drawn as to be completed ahead of reservoir filling".

What the clause as drawn required was that the catchment area treatment programme and the rehabilitation plans should be drawn in such a manner that the catchment area treatment and the rehabilitation works would be completed ahead ofimpoundment in the reservoir. This, plainly, was intended to offset, so far as was possible in the circumstances, the adverse effect of the impoundment ofwater in the reservoir upon the catchment and those who were required to be settled elsewhere. In fact, the impoundment began much before. (242-C-D) 3. 1. The environmental clearance was based on next to no data in regard to the environmental impact of the Project and was contrary to the terms of -the then policy of the Union oflndia in regard to environmental clearances and, therefore, no clearance at all. (241-CI 3. 2.

Under its own policy, as indicated by the Guidelines ofJanuary, 1985 issued by the Department of Environment and Forests, the Union of India was bound to give environmental clearance only after, (a) all the necessary data in respect of the environmental impact of the Project had been collected and assessed; (b) the assessment showed that the Project could proceed; and (c) the environmental safeguard measures, and their cost, had been worked out. (242-H) 3. 3. The contemporaneous Notes prepared by the Ministry of Water Resources and the Ministry of Environment and Forests leave no manner of doubt that the requisite data for assessment of the environment impact of the Project was not available when the environmental clearance thereof was granted. The Notes make clear that the studies, censuses, mapping of areas and field surveys for the collection of data for assessment of the environmental impact of the Project were likely to take a further 2 to 3 years. (241-A-CI 3. 4.

The conditions upon which the environmental clearance was given were that detailed surveys and studies would be carried out and the Narmada Control Authority would ensure that "environmental safeguard measures" were planned and implemented pari passu with the progress of work on the Project. What the environmental safeguards measures the Narmada Control Authority was to ensure were, and what their cost would be, was not known when the environmental clearance was given. There was, therefore, no way in which this cost could be included in the cost of the Project, which was a requirement of the Guidelines of January, 1985 of the Department of Environment and Forests. [241-F-G) 3. 5. The fact that the environmental clearance was given by the Prime Minister and not by the Ministry of Environment and Forests, as it would ordinarily have been done, makes no difference at all. (242-GI 4.

An adverse impact on the environment can have disastrous consequences for this generation and generations to come. This Court has in its judgments on Article 2I of the Constitution of India recognised this. NARMADA BACHAO ANDOLAN v. U. 0. 1. 115 This Court cannot place its seal of approval on the project without first ensuring that those best fitted tO do so have had the opportunity ofgathering all necessary data on the environmentafimpact of the Project and ofassessing it. They must then decide if environmental clearance to the project can be given, and, ifit can, what environmental safeguard measures have to be adopted, and their cost. (243-B) 5. It should not be deemed that there is agreement to anything stated in the judgment of the majority for the reason that it has not been traversed in the present judgment. [246~C) DIRECTIONS 1.

The Environmental Impact Agency of the Ministry of Environment and Forests of the Union of India shall forthwith appoint a Committee of Experts in the fields mentioned in Schedule III of the Environmental Impact Assessment Notification, 1994. (246-D) 2. The Committee of Experts shall gather all necessary data on the - environmental impact ofthe Project. They shall be free to commission or carry out such surveys and studies and the like as they deem necessary. They shall also consider such surveys and studies as have already been carried out. [246-E) 3. Upon such data, the Committee of Experts shall assess the environmental impact ofthe Project and decide if environmental clearance to the Project can be given and, if it can what environmental safeguard measures must be adopted, and their cost. (246-F) 4. In so doing, the Committee of Experts shall take into consideration the fact that the construction of the dam and other work on the Project has already commenced. (246-G) 5.

Until environmental clearance to the Project is accorded by the Committee of Experts as aforestated, further construction work on the dam shall cease. [246-HJ 6. The Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall ensure that those ousted by reason of the Project are given relief and rehabilitation in due measure. (247-AJ 7. When the project obtains environmental clearance each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall, after inspection, certify, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present leYel have already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who will be ousted by the increase in the height of the dam by another 5 meters is already in the possession of the respective States. [247-8-C] 8.

This process shall be repeated for every successive proposed 5 mete'! " increase in the dam height. [247-D] 9. If for any reason the work on the Project, now or any time in the future, cannot proceed and the Project is not completed, all oustees who have been rehabilitated shall have the option to ~ontinue to reside wher~ they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they shall not be made at all liable in monetary or other terms. ,on this account. (247-E] CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 319 of I994. (Under Article 32 of the Constitution of India) WITH W. P. (C) Nos. 345/1994 and 104/1997, SLP (C) No. 3608/1985, TC(C) No. 3511995 and CA No. 6014/1994. Harish N. Salve, Solicitor General, Shanti Bhushan, M. G. Barot, Ashok H. Desai, T. R. Andhyarujina, C. S. Vaidyanathan, Anoop G. Chaudhary, K. N. Shukla, Prashant Bushan, Sanjeev Kapoor, Narinder Verma, Ms. S. Divya, K. R. R. Pillai, E. C.

Agrawala, Mahesh Agrawala, Rishi Agrawala, Pallav Sisodia, Tufail A. Khan, P. Parmeshwaran, S. N. Terdol. A. K. Srivastava, B. K. Prasad, Kamal Trivedi, Ms. H. Wahi, Pratesh Kapoor, Subrat Birla, T. M. Pitale, D. M. Nargolkar, S. K. Agnihotri, Ashok Kumar Singh, Sushi! Kr. Jain Addi. General for State of Rajasthan, A. Misra, Ms. Anjali Doshi, Ms. Madhurima Tatia, Pallav Sisodia and A. P. Medh for the appearing parties. The Judgments of the Court were delivered by KIRPAL, J. Narmada is the fifth largest river in India and largest West flowing river of the Indian Peninsula. Its annual flow approximates to the combined flow of the rivers Sutlej, Beas and Ravi. Originating from the Maikala ranges at Amarkantak in Madhya Pradesh, it flows Westwards over a length of about 1312 km. before draining into the Gulf of Cam bay, 50 km. West of Bharuch City. The first 1077 km. stretch is in Madhya Pradesh and the next 35 km.

stretch of the river forms the boundary between the States of Madhya Pradesh and Maharasthra. Again, thoe next 39 km. forms the boundary between Maharasthra and Gujarat and the last stretch of 161 km. lies in Gujarat. The Basin area of this river is about l lac sq. km. The utilisation of this river basin, however, is hardly about 4%. Most of the water of this peninsula river goes into the sea. Inspite of the huge potential, there was hardly any development of the Narmada water resources prior to independence. In 1946, the then Government of Central Provinces and Berar and the then Government of Bombay requested the Central Waterways, Irrigation and Navigation Commission (CWINC) to take up investigations on the Narmada river system for basin-wise development of the river with flood control, irrigation, power and extension of navigation as the objectives in view.

The study commenced in 1947 and most of the sites were inspected by engineers and geologists who recommended detailed investigation for seven projects. Thereafter in 1948, the Central Ministry of Works, Mines & Power appointed an Ad~hoc Committee headed by Shri A. N. Khosla, Chairman, CWINC to study the projects and to recommend the priorities. This Ad-hoc Committee recommended as an initial step detailed investigations for the following projects keeping in view the availability of men, materials and resources: l. Bargi Project 2. Tawa Project near Hoshangabad 3. Punasa Project and 4. Broach Project Based on the recommendations of the aforesaid Ad-hoc Committee, estimates for investigations of the Bargi, Tawa, Punasa (Narmadasagar) and Broach Projects were sanctioned by the Government of India in March, 1949. The Central Water & Power Commission carried out a study of the hydroelectric potential of the Narmada basin in the year 1955.

After the investigations were carried out by the Central Water & Power Commission, the Navagam site was finally decided upon in consultation with the erstwhile Government of Bombay for the construction of the dam. The Central Water & Power Commission forwarded its recommendations to the then Government of Bombay. At that time the implementation was contemplated in two stages. In Stage-I, "the Full Reservoir Level (hereinafter referred to as 'FRL') was restricted to 160 ft. with provision for wider foundations to enable raising of the dam to FRL 300 ft. in Stage-II. A high level canal was envisaged in Stage- 11. The erstwhile Bombay Government suggested two modifications, first the FRL of the dam be raised from 300 to 320 ft. in Stage-II and second the provision of a power house in the river bed and a power house at the head ofthe low level canal be also made.

This project was then reviewed by a panel of Consultants appointed by the Ministry of Irrigation & Power who in a report in 1960 suggested that the two stages of the Navagam dam as proposed should be combined into one and the dam be constructed to its final FRL 320 ft. in one stage only. The Consultants also stated that there was scope for extending irrigation from the high level canal towards the Rann of Kutch. With the formation ofthe State ofGujarat on lst May, 1960, the Narmada Project st~od transferred to that State. Accordingly, the Government ofGujarat gave an administrative approval to Stage-I ofthe Narmada Project in February, 1961. The Project was then inaugurated by late Pandit Jawaharlal Nehru on 5th April, 196I. The preliminary works such as approach roads & bridges, colonies, staff buildings and remaining investigations for dam foundations were soon taken up. The Gujarat Government undertook surveys for the high level canal in I961.

The submergence area survey of the reservoir enabled assessment of the storage capability of the Navagam reservoir, if its height should be raised beyond FRL 320 ft. The studies indicated that a reservoir with FRL + 460 ft. would enable realisation of optimum benefits from the river by utilising the untapped flow below Punasa dam and would make it possible to extend irrigation to a further area of over 20 Iakh acres. Accordingly, explorations for locating a more suitable site in the narrower gorge·portion were taken in hand and finally in November, 1963, site No. 3 was found to be most suitable on the basis of the recommendations of the Geological Survey of India and also on the basis of exploration and investigations with regard to the foundation as well as construction materials available in the vicinity of the dam site. In November, 1963, the Union Minister of Irrigation- & Power held a meeting with the Chief Ministers of Gujarat and Madhya Pradesh at Bhopal.

As a result of the discussions and exchange of views, an agreement (Bhopal Agreement) was arrived at. The salient features of the said Agreement were: (a) That the Navagam Dam should be built to FRL 425 by the Government of Gujarat and its entire benefits were to be enjoyed by the State of Gujarat. ' ~·- (b) Punasa dam (Madhya Pradesh) should be built to FRL 850. The costs and power benefits of Punasa Power Project shall be shared in the ratio I:2 between the Governments ofGujarat and Madhya Pradesh. Out of the power available to Madhya Pradesh half of the quantum was to be given to the State of Maharashtra for a period of 25 years for which the State of Maharashtra was to provide a loan to the extent of one-third the cost of Punasa Dam. The loan to be given _by the State of Maharashtra was to be returned within a period of 25 years.

(c) Bargi Project was to be implemented by the State of Madhya Pradesh, Bargi Dam was to be built to FRL 1365 in Stage I and FRL 1390 in Stage II and the Governments of Gujarat and Maharashtra were to give a total loan assistance of Rs. I0 crores for the same. In pursuance of the Bhopal Agreement, the Government of Gujarat prepared a brief project report envisaging the Navagam Dam FRL 425 ft. and submitted the same to the Central Water and Power Commission under Gujarat Government's letter dated 14th February, 1964. Madhya Pradesh, however, did not ratify the Bhopal Agreement. In order to overcome the stalemate following the rejection of the Bhopal Agreement by Madhya Pradesh, a High Level Committee ofeminent engineers headed by Dr. A. N. Khosla, the then Governor of Orissa, was constituted on 5th September, 1964 by the Government of India.

The terms ofreference ofthis Committee were decided by the Government of India in consultation with the States of Madhya Pradesh, Maharashtra and Gujarat. The same read as under: ~ ... (i) Drawing up of a Master Plan for the optimum and integrated de\·elopment of the Narmada water resources. (ii) The phasing of its implementation for maximum development ofthe resources and other benefits. (iii) The examination, in particular, ofNavagam and alternative projects, if any, and determining the optimum reservoir level or levels. (iv) Making recommendations of any other ancillary matters. The Khosla Committee submitted the unanimous report to the Government of India in September, 1965 and recommended a Master Plan of the Narmada water development. In Chapter XI of the said Report, the Khosla Committee outlined its approach to the plan of Narmada development. An extract from this Chapter is reproduced below: "11.

1 In their meeting from 14th to 18th December, 1964 at which the State representatives were also present, the Committee laid down the following basic guidelines in drawing up the Master Plan for the optimum and integrated development ofthe Narmada water resources:- !. National interest should have over-riding priority. The plan should, therefore, provide for maximum benefits in respect of irrigation, power generation, flood control, navigation etc. irrespective of State boundaries; 2. Rights and interests ofState concerned should be fully safeguarded subject to (I) above; 3. Requirements of irrigation should have priority over those of power;_ Subject to the provision that suitable apportionment of water between irrigation and power may have to be considered, should it be found that with full development of irrigation, power production is unduly affected; 4.

Irrigation should be extended to the maximum area within physical limits of command, irrespective of State boundaries, subject to availability of water; and in particular, to the arid areas along the international border with Pakistan both in Gujarat and Rajasthan to encourage sturdy peasants to settle in these border areas (later events p have confirmed ·the imperative need for this); and 5. All available water should be utilised to the maximum extent possible for irrigation and power generation and, when no irrigation is possible, for power generation. The quantity going waste to the sea without doing irrigation or generating power should be kept to the un-avoidabie have liberalised the policies with regard to re-settlement and have offered packages more than what was provided for in the Award e.

g the Governments of Madhya Pradesh; Maharashtra and Gujarat have extended the R&R benefits through their liberalised policies even to the encroachers, landless/displaced persons, joint holders, Tapu land (Island) holders and major sons·(18 years old) of all categories of affected persons. The Government of Maharasthra has decided to allot one hectare of agricultural land free of cost even to unmarried major <;laughters of all categories of PAFs. In the environmental clearance granted by the Ministry of Environment and Forests vide its letter dated 24th June, 1987, one of the conditions stipulated therein was for information from the project authorities on various action plans including Rehabilitation Master Plan of 1989. - It is the contention of the . petitioners that the failure to prepare a "Master Plan" constitutes non-compliance with the requirement of the Tribunal's Award as well as environmental clearance.

The Tribunal's Award does not use the expression 'Master Plan' but as per clause XI Sub-clause - IV(2)(iii), what is required, is as under: "The three States by mutual consultation shall determine within two years of the decision of the Tribunal, the number and general location of rehabilitation villages required to be established by Gujarat in its own territory. " It is with regard to this clause in the Award that, presumably, the aforesaid lettP-r of 24th June, 1987 granting environmental clearance required the preparation of the new Master Plan. In 1988 when the project was first cleared by the Planning Commission from investment ~ngle, it was estimated that 12180 families would be atfe:. •.. u in three States. Based on these numbers, the State Governments independently prepared their action plans and announced their R&R policy based on Tribunal's Award.

On the basis of the said action plans the Narmada Control Authority submitted Rehabilitation Master Plan to the Ministry of Environment and Forests along with its letter dated 3/4. 5. 1989. Out of the total population, which is affected 'by the submergence, large number are tribals and hence attention was paid by the State Governments to liberalise their policies for protecting the socio-economic and cultural milieu and to extend the R&R benefits even to other categories of persons who were not covered -by the Tribunal's Award. This led to the liberalisation of the R&R packages by the three States which packages have been referred to hereinabove. As a result of the liberalisation of the packages, the number of PAFs as estimated in 1992 by the State Governments were 30144. Based on the material available, the .

three State Governments prepared individual action plans in 1993 but those action plans were integrated by the Narmada Control Authority first in 1993 and again in 1995 as an integrated Master Plan to present a holistic picture of the R&R programme. The Master Plan deals with socio-economic and cultural milieu of PAFs, the legal framework, R&R policy and procedures, implementation machinery, organisation for R&R, monitoring and evaluation, empowerment ofwomen and youth, special care for vulnerable groups, financial plans for R&R etc. As per the 1990 Master Plan the total PAFs have increased to 40227 from 30144 due to addition of l00 more genuine PAFs in Maharashtra. This Master Plan includes village-wise, category-wise PAFs and their preference in R&R to settle in home State or in Gujarat.

The reason for increase in number of PAFs has been explained in the Master Plan and the reasons given, inter a/ia, are: (a) After CWC prepared backwater level data, the number of PAFs in Madhya Pradesh (MP) increased by 12000 PAFs as their houses are affected in a l in I00 years flood. (b) Government of Gujarat (GOG) included major sons of the dyke villages as PAFs. (c) Cut off date for major sons was extended by GOG and Government of Maharashtra (GOM). ... (d) PAFs affected in MP, have increased due to delay in publication of Section 4 notification under the Land Acquisition Act. (e) Persons socially or physically cut off due to impounding of water in reservoir, are also considered as PAFs by all the three States. (f) All the three States decided to consider encroachers as PAFs. (g) Major unmarried daughters in Maharashtra are considered as a separate family by Government of Maharashtra.

(h) Some genuine PAFs were earlier left out (as many stayed in remote areas or used to undertake seasonal migration to towns and developed areas in search of casual work). As far as the State of Gujarat is concerned, its contention is that the task of R&R is not impossible as recognised by the FMG-l in its 1994 report and according to the State, it is fully ready and prepared to re-settle in Gujarat all the PAFs upto FRL 455 ft. On 13th November, 1996, a meeting of the Review Committee of the Narmada Control Authority chaired by the Union Minister of Water Resources was held. This meeting was attended by the Chief Ministers of all the States including Rajasthan and representatives of Ministry of Environment and Forests, Ministry of Social Justice and Empowerment, Government of India. In the meeting it was unanimously decided that the reviews of the implementation of re-settlement and rehabilitation measures will be undertaken for every five meter height of the dam jointly.

by the concerned R&R Sub- group and Environmental Sub-group so that work could progress pari passu with the implementation measurers. In its meeting held on 6th January, 1999, R&R Sub-Group of Narmada Control Authority observed that arrangements -· made by the States for R&R of the balance families pertaining to the dam height EL 90 meter were adequate and a meeting of the party States should be convened shortly to finalise the action plan. Pursuant thereto a special Inter-State Meeting was convened under the chairmanship of the Secretary to the Government of India, Ministry of So:ial Justice and Empowennent on 21st January, 1999 at New Delhi and action plan for re-settl~ment and rehabilitation for balanced families of dam height EL 90 meter was finalised for implementation by the States.

It is the case of the State of Gujarat that it had issued notices and made offers in January, 1998 to PAFs affected at RL 90 meter in connection with the selection of land and their re-settlement in Gujarat. According to it, even in respect of PAFs affected at RL 95 meter, notices were issued in January, 1999 and to the PAFs included in the subsequent list, notices were issued in September 1999. The process of land selection by PAFs who had opted to resettle in Gujarat at RL 95 meter was already started. According to the Union of India, the Master Plan was under implementation and the progress of R&R at various elevations ofdam viz. EL 90 meter, EL 95 meter, EL 110 meter and FRL 138. 68 meter has been made.

The measures which have been implemented for sustainable development with regard to preserving the socio-cultural environment of the displaced F~ persons in the States of Maharashtra, Gujarat and Madhya Pradesh are stated to be as follows: * Three choices to the people for the selection of relocation sites. * Integration of the displaced person with the neighbouring villages by organising medical check-up camps, animal husbandry camps, festivals, eye camps, rural development seminar for village workers etc. * Establishment of rehabilitation committees at different levels. * Respect of traditional beliefs, rituals and rights at the starting of house construction, the day and time of leaving the old house and village and the day and time of occupying the new house etc. * The sacred places at the native villages are being recreated along with their settlements at new sites. .... I * Installation of all the religious deities with the due consultation of religious heads.

• * Promotion of cultural milieu viz. Social festivals, religious rights, rights of passage, presence of priests, shaman, kinsmen, clansmen etc. * Special consideration for the preservation of holistic nature of the 0 culture. * P_roper use ofbuilt-in-mechanism ofcultural heritage ofthe displaced persons. * Launching of culturally appropriate development plan. * Genuine representation of the traditional leader. " The Tribunal had already made provision of various civic amenities which were further liberalised by the State Governments during implementation. The exist~ng development programmes were strengthened for ensuring sustainable development at the rehabilitation sites.

These were Integrated Rural Development Programme (IRDP) for agriculture, business and village industries; Integrated Child Development Scheme (ICDS) for nutrition, health and education; Jawahar Rojgar Yojna (JRY); aids for improved seeds, fertilizers, irrigation, animal husbandry; Training Rural Youth for self-employment (TRYSEM); Employment Guarantee Scheme (EGS), Social Assistance; Industrial Training Institute (ITI); Tribal Development Programme (TOP), financial benefits to the backward classes, economically weaker sections, tribals and other backward classes (OBC), eye camps, subsidies to farmers (seed, tractorisation, fertilizers, diesel, etc. ) agricultural prices support subsidy etc.

Other benefits which were extended for improving the quality of life of the re-settled PAFs included fodder farm, mobile sale, shop of fodder, seeds cultivation training, initial help in land preparation for agricultural activities, better seeds and fertilizers, access to finance, special programme for women in the traditional skills enterpreneurship development, employment skill formation, different plantation programmes, special emphasis for pasture management, environment awareness and education programme, programmes for bio-gas/smokeless chulhas, safe drinking water supply, electricity, lift irrigation, fertilizers kit distribution, gypsum treatment of soil etc. The project authorities in these three States of Madhya Pradesh, Gujarat and Maharashtra represented that comprehensive health care was available in tribal areas where the displaced families had been re-settled.

It was contended that extensive preventive health measures like mass immunization, anti-malaria programme, family welfare programmes, child development schemes etc. had been undertaken. What is important is that primary health centres were established at relocation sites for all necessary health facilities to the PAFs. The submission on behalf of Union of India was that there was a wellestablished mechanism ofGovernment of India for coordination and monitoring of Re-settlement & Rehabilitation (R&R) programmes in case of Sardar Sarovar Project. The R&R Sub-group and Rehabilitation Committee ofNarmada Control Authority are responsible for applying its independent mind on R&R. The Sub-group convenes its meeting regularly to monitor and review the progress of R&R while Rehabilitation Committee visits the submergence area'i/relocation - sites to see whether the rehabilitation is taking place physically and to hear the individual problems of the PAPs.

The R&R group, keeping in view the progress of relief and rehabilitation, has not permitted the height to be raised, until and unless it is satisfied that adequate satisfactory progress has been made with regard to R&R. Whereas at an earlier point of time in \ 994, the construction schedule had required the minimum block level to be raised to 85 meters, the R&R Sub-group had permitted the same to be raised to EL 69 meter only during that period to match the R&R activity. It was in the meeting of R&R Sub-group on 6th January, 1999 after the R&R Sub-group had reviewed the progress and had satisfied itself that the land for re-settlement in Gujarat, Maharashtra and Madhya Pradesh, which were available, was more than required for the re-settlement of the balanced PAFs that it cleared the construction upto the dam height EL 90 meters. The action plan for the same had been approved and is under implementation by the States concerned.

The petitioners had contended that no proper surveys were carried out to determine the different categories of affected persons as the total number of affected persons had been shown at a much lower side and that many had been denied PAF status. From what is being stated hereinabove, it is clear that each State has drawn detailed action plan and it is after requisite study had been made that the number of PAFs have been identified. The number has substantially increased from what was estimated in the Tribunal's Award. The reason for the same, as already noticed, is the liberalisation of the R&R packages by the State Governments. Except for a bald assertion, there appears to be no material on which this Court can come to the conclusion that no proper surveys had been carried out for determining the number of PAFs who would be adversely affected by the construction of the dam.

Re-settlement and rehabilitation packages in the three States were different due to different geographical, local and economic conditions and availability of land in the States. The liberal packages available to the Sardar Sarovar Project oustees in Gujarat are not even available to the project affected people of other projects in Gujarat. It is incorrect to say that the difference in R&R packages, the package of Gujarat being the most liberal, amounts to restricting the choice of the oustees. Each State has its own package and the oustees have an option to select the one which was most attractive to them. A project affected family may, for instance, chose to leave its home State of Madhya Pradesh in order to avail the benefits of more generous package of the State of Gujarat while other PAFs similarly situated may opt to remain at home and take advantage of the less liberal package of the State of Madhya Pradesh.

There is no requirement that th~ liberalisation of the packages by three States shquld be to the same extent and at the same time, the States cannot be faulted if the package which is offered, though not identical with each other, is more liberal than the one envis·aged in the Tribunal's Award. Dealing with the contention of the petitioners that there were large number of persons who were living in the submergence area and were not farmers and would lose their livelihood due to loss of the community and/or loss of the river and were not being properly rehabilitated, Mr. Harish Salve, learned Senior Counsel contended that this averment was not true. According to him, all the families in the 105 hilly tribal villages were agriculturists, cultivating either their own land or Government land and all of whom would be eligible for alternative agricultural land in Gujarat. Only a small number of non-agriculturists, mainly petty shopkeepers were found in these villages of tribal areas.

In Gujarat there were 20 such non-agriculturists families out of a total of 4600 affected families and all ofthese had been re-settled as per their choice so that they could restart their business. In Maharashtra out of 3213 affected families, not a single family was stated to fall under this category. Amongst the affected families of Madhya Pradesh, the figure of such nonagriculturists family was also stated to be not more than couple of l00. In our opinion it is neither possible nor necessary to decide regarding the number of people likely to be so affected because all those who are entitled to be rehabilitated as per the Award will be provided with benefits of the package offered and chosen.

With regard to the colony affected people whose 1380 acres of land was acquired in six villages for the construction ofa colony, most ofth~ landholders had continued to stay in their original houses and about 381 p·ersons were stated to have been provided permanent employment in the project works. At the time, the land was acquired in I962-63, compensation was paid and in addition thereto, the Government of Gujarat devised a special package in August, 1992 providing ex-gratia payment upto Rs. 36000. 00