N.D. JAYAL AND ANR. v. UNION OF INDIA AND ORS

Citation: [2003] SUPP. 3 S.C.R. 152

Court: Supreme Court of India

Bench: S. RAJENDRA BABU, D.M. DHARMADHIKARI, G.P. MATHUR

Judgment text

N. D. JAYAL AND ANR. v. UNION OF INDIA AND ORS. SEPTEMBER I, 2003 [S. RAJENDRA BABU, D. M. DHARMADHIKARI AND G. P. MATHUR, JJ. ] Constitution of India, Article 32-Public Interest Litigation-PIL seeking directions for conducting tests to ensure safety for Tehri Dam and stoppage ofproject till conditions attached to environmental clearance complied with-Held, the conception and decision to undertake a project is a policy decision and the only role the court has to play is to ensure that the system works in the manner envisaged: courts are ill-equipped to adjudicate on a policy decision.

Constitution ofIndia, Articles 21, 32-PIL seeking court's direction on the environmental aspects ofthe Tehri Dam-High Level Committee set up by Government concluding that dam design safe and all danger arising out ofseisimicity taken note of-Matter referred to Seisimic Expert who concurred that over all factor of safety of the dam was high-Another Expert Group in 1991 recommending acceptance of report ofHigh Level Committee andSeisimic Expert-Afarther Group offive Experts examining safety ofdam and submitting report in February 1998 that present design was structurally safe but as a matter ofabundant caution recommending conduct oftwo other studies-Government ofIndia, in consultation with Central Water Commission and National Committee on Seisimic Design Parameters deciding there was no necessity to undertake the two additional studies-Held (per majority), Court cannot advise Government to go for farther tests unless arbitrariness or irrationality is attributed to that decision; the consideration in such cases is in the process of decision and not its merits-Further held (per majority), when there is no difference ofopinion among experts as to safety ofdam, Court cannot sit in judgment over such decision.

Constitution of India, Articles 21, 32-Protection of Environment vis-a-vis sustainable deve/opment-P/L seeking directions regarding disaster management and rehabilitation of persons displaced by Tehri Dam Project-Petitioner objecting to components ofrehabilitation package as N. D. JAYAL v. U. O. I. 153 being discriminatory and unreasonable-Government acting on recommendations ofthe Hanumantha Rao Committee (HRC)-Held, these were matters ofpolicy and Court cannot interfere with the same; components of rehabilitation package not unreasonable.

- Constitution ofIndia, Articles 21 and 32-Protection ofEnvironment vis-ii-vis sustainable development-PIL alleging non-compliance with conditions attached to environmental clearance of Tehri Dam Project- Government assuring the court that high level inter-ministerial review committee would be constituted to monitor various aspects-Held (per majority), no impoundmant to be allowed till all conditions ofenvironmental clearance are complied-Further held (per majority) petitioners have not established that Project is being carried on without complying with conditions of clearance. Constitution of India, Articles 142, 226-PIL seeking compliance with conditions ofenvironmental clearance ofTehri Dam Project-Cases transferred to High Court ofUttaranchal for monitoring by Division Bench to ensure conditions ofenvironmental clearance are fulfil-Practice and Procedure. Words & Phrases : 'Pari passu'-Meaning of-Explained.

Close to the Garhwal town of Tehri in the Himalayas, at the confluence of two rivers Bhagirathi and Bhilanganga, a three billion dollar clay-core rockfill dam is being constructed resulting in a water spread over 42. 5 sq. m. which will affect totally or partially nearly 100 villages including Tehri town. As many as 90,000 families would be relocated as result of the dam project. The Government of India and State ofUttaranchal claimed that the dam project would generate 2400 kw of electricity and create irrigation facilities for 2070 lakh hectares of land. There were plans also to supply 500 cusecs of water to New Delhi. A PIL was filed in 1985 in this Court by the Tehri Bandh Virodh Sangharsh Samiti seeking to stop the construction of the dam on the ground that it posed a grave threat to t~e safety and lives of the people in the surrounding villages and downstream. ..

As a result of public protest the then Prime Minister of India directed an in-depth review of the project by an expert group constituted by the Ministry of Science and Technology. The technical group which submitted its report in 1986 recommended abandonment of the project ... despite an expenditure of Rs. 2006 crores already having been incurred on it. After the USSR Government agreed to provide technical and financial assistance, the project was taken over in July 1988 by a joint venture company of the Government of India and the Government of Uttar Pradesh viz. , the Tehri Hydro Development Corporation (THDC). In February 1990, the Environmental Appraisal Committee (EAC) of the Ministry of Environment and Forests (MoEF) recorded a unanimous conclusion that taking into CO,/Jsideration the risks and hazards involving ecological and social impact, the Tehri project did not merit environment clearance and should be dropped.

Thereafter the question ofcontinuance of the project was entrusted to a Committee of Secretaries which reassigned the task to the Department of Mines. Based on the opinion of a High Level Committee consisting of Prof. Jai Krishna, an Earthquake Engineer, and despite the dissenting opinions of Dr. V. K. Gaur, a seismologist and Dr. N. Brune, the foreign expert, the MoEF on July 19, 1990 gave a conditional clearance to the project. Among others, the final condition was: 'Ifthe completion ofstudies, formulation of the action plan and their implementation to be scheduled in such a way that their execution is pari 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 provisions of the Environment (Protection) Act 1986 (EPA).

' On November 7, 1990 the PIL filed in 1985 was dismissed by this court holding that all aspects of the safety for the dam had been taken into account by Indian and foreign experts and there was no ground to stop the construction (Tehri Bandh Virodhi Sangarsh Samiti v. Union ofIndia, (1992) Supp 1 SCC 44). The petitioner gave notice in January 1991 under s. 19-B EPA to the MoEF stating that since there was non-compliance with the. conditions of the clearance, the work on the dam should be stopped forthwith. In April 1991 the MoEF expressed dissatisfaction on the failure to comply with the conditions of clearance and directed THDC to submit a comprehensive rehabilitation plan for effective N. D. JAYAL v. U. 0. 1. 155 implementation. In July 1991 a report was submitted by an Expert Group consisting of the Director, Geological Survey of India recommending that the report of the High Level Committee and opinions of Prof. Jai Krishna be accepted.

On October 21, 1991 an earthquake measuring 6. 1 on the Richter scale hit the Garhwal region causing massive damage to the villages of Uttarkashi and Chamoli and killing around 2000 people. This revived the protests and in December 1991 the present petition was filed which raised, inter alia, the issue of the safety of the dam, its adverse impact on the environment, displacement of people and their rehabilitation. It was urged that since the condition of environmental clearance was not fulfilled, there was no legal justification to allow further construction of the dam. In a communication dated October 21, 1994, the MoEF noted that 'implementation of various safeguard measures were lagging far behind'.

In July 1996, upon orders made by this Court and after intervention by Sri Sunderlal Bahuguna, an environmental activist spearheading the movement against the construction of the dam, the Central Government appointed two expert committees----one to examine the safety aspects and the other headed by Prof. C. H. Hanumantha Rao, to examine the environment and rehabilitation aspects. In a report submitted on February 18, 1998 four of the five experts of the committee on safety 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'. Nevertheless, they suggested out of abundant caution that : (i) 3-D non-linear analysis of the dam to evaluate its performance against 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.

The Hanumantha Rao Committee in a report submitted in October 1997 recommended inter alia, that each displaced family be given 2 acres of land; where displaced families had already shifted they be given cash compensation instead of land; the newly recognised displaced families also be given cash instead of land; in partially affected villages, the affected families will have the option of settling in the unaffected part of the same village on relocating elsewhere. On February 2, 1999 in an affidavit filed in this Court, the Government of India stated that it accepted the recommendations of both committees but that there was no necessity to undertake the further steps recommended by the committee on safety. The petitioners first urged the Court to issue necessary directions to conduct further safety tests.

Secondly, they alleged that the concerned authorities had not complied with the conditions attached to the environmental clearance and wanted the project stopped till the same was complied with. Lastly, they requested the Court to look into the rehabilitation aspects. Disposing of the petitions, HELD: (per Rajendra Babu, J. for himself and G. P. Mathur, J. ): I. I. 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 tu 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. [170-C-E) 1. 2. In such cases, if the situation demands, the Courts should take only a detached decision based on the pattern of the well-settled princii;les 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 wellinformed decision or not. If the answer is 'yes', then there is no need to interfere. The consideration in such cases is in the process ofdecision and not in its merits. (170-F, F) 1. 3. Once such a considered decision is taken, the proper execution N. D. JAYAL V. U. 0. 1. 157 ofthe 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 ofthe 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 infrastructural project or not and what is the type of projectto be undertaken and how it has to be executed, and part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. (164-F-G) 1. 4. 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. [164-H, 165-A, BJ 1. 5. 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 proje!! t though at one stage it was thought it would not be appropriate to continue the sam1:. (165-H] Narmada Bachao Ando/an v. Union ofIndia, [2000) 10 sec 664, followed. BALCO Employees' Union (Regd. ) v. Union ofIndia, [2002) 2 SCC 333 and Tehri Bandh Virodhi Sangarsh Samiti v. State of UP. , (1992) Supp. 1 SCC 44, referred to. 2. The safety aspects of the dam need not be re-examined.

The necessity or effectiveness of conducting 30 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 advise the Government to go for such tests unless malajides, arbitrariness or irrationality is attributed to that decision. These are matters of policy and when the Government takes such a decision bearing in mind several aspects, this Court should not interfere with the same. [169-H, 170-A, BJ 3. 1. 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. 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. (173-C) 3. 2.

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' is to be treated an integral part of 'life' under Article 21. (173-D, E) A. P. Pollution Control Board v. Prof M. V. Nayudu (Retd. ), (1999) 2 sec 718; Ve/lore Citizens Welfare Form v. Union ofIndia, (1996) 5 SCC 647; MC. Mehta v. Union ofIndia, (2002] 4 SCC 356; Samata v. State ofAndhra Pradesh, (1997] 8 SCC 191; Madhu Kishwar v. State of Bihar, [1996] 5 SCC 125; State ofHimachal Pradesh v. Ganesh Wood Products, (1995) 6 SCC 363; MC. Mehta v. Kamal Nath, (1997) 1 SCC 388 and MC. Mehta v. Union of India, (2001] 3 sec 756, referred to. 4. 1.

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 condition of paripassu implementation of conditions prior to the commissioning of the project shall be closely monitored under the existing mechanism set up by MoEF and the project authorities will ensure that prior to closing ofdiversion tunnels TlITT for impoundment of the reservoir, evacuation, resettlement and rehabilitation are completed in all respects. In addition, the catchment area treatmeet of direct draining areas shall N. D. JAYAL v. U. 0. 1. 159 be completed and the project authority will obtain clearance from MoEF before closing the outlet at EL 700 M. It is only after the completion of the conditions, impoundment would start. [200-D, 8-C) 4. 2.

Petitioners have not established nor is there any material to conclude that the project work is being carried on without complying with the conditions of clearance. The status report filed by the Union of India indicates that there is substantial compliance with all the conditions. [200-G] 5. To ensure that all the conditions for environmental clearance are fulfilled and for proper monitoring, all these cases are transferred 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. It shall not open to rexamine the matters such as safety of the dam and other aspects relating to implententation of conditions contained in the Government orders which have been decided in this case. [200-H, 201-A, BJ Indian Councilfor Enviro-Legal Action v. Union ofIndia, [1996) 5 SCC 281; ML. Sud v. Union ofIndia, (1992) Supp. 2 SCC and Mohan Chand v. Union ofIndia, [1995) Supp.

, 3 SCC 425, followed. Per Dharmadhikari, J. (dissenting): 1. 1. 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. (208-E) 1. 2. The Central Government shall constitute a Committee of Experts 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. Wherever certain conditions for clearance are imposed they are to be strictly adhered to. If this is not done before the dam is allowed to be filled, adverse impacts caused 110 environment would be irr~versible and would not be compensated because of the severe scale ofthe 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 otl\er dam projects in ... plains. (214-C, D) Karjan Jalasay Yojana Assargrasth Shakhar Ane Snagharsh Samiti v. State of Gurajat, AIR (1987) SC 532, referred to. 1. 3. Until 3-D non-linear analysis and dam break analysis are completed as recommended by the committee on safety, diversion tunnels Tlff2 for impoundment of the reservoir shall not be closed. 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. (223-B, 214-E] Environmental Solution and Development by Chander Pal, pp. 198-- 201, 236--237, referred to. 1. 4. There will be no impoundment of the reservoir until resettlement and rehabilitation work is fully completed in all respects.

The dams are built by public funds with the aim to satisfy the energy and water needs but what benefit ultimately is would give to the displaced people should also be taken care of. (223-D, 210-B] l. S. The conflicts over natural resources which frequently come to Courts are conflicts over rights between haves and haves not. When a multimillion big dam project is undertaken to generate electricity and for providing water for irrigation and drinking, those living by the side of river from generations to suffer by displacement, should not be left to a far off palce 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. (210-B, G, H, 211-A) CIVIL ORIGINAL nJRISDICTION : Writ Petition No. 295 of 1992. Under Article 32 of the Constitution of India. WITH T. C. (C) Nos. 50, 51, 52, 53 of 1996. - N. D. JAYAL v. U. 0. 1. [RAJENDRA BABU, J. ] 161 K. N. Rawal, Solicitor General, R. N.

Trivedi and Altaf Ahmad, Additional Solicitor Generals, Ms. Indra Jaisingh, Dr. Rajiv Dhawan, Sanjay Parikh, Ms. Vandana Sudan, Abinash K. Misra, A. N. Singh, S. Santhanan Swaminathan, S. Wasim A. Qadri R. N. Poddar, B. V. Bairam Das, Mrs. Anil Katiyar, B. Krishna Prasad, Ashok K. Srivastava, Sunder Lal Bahuguna-in-person, Gopal Singh, Anil Shrivastav, Ms. Jyoti Dutt, Ms. - Binu Tamta, Ajay K. Agarwal, K. I. Janjani, Pankaj Kumar Singh, Avathar Singh Rawal, Addi. Advocate General for State, Mrs. D. Bharathi Reddy, N. L. Ganapathi, Satya Mitra Garg and Dr. Nafis A. Siddique for the appearing parties. 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 ofthe 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 surve)l 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 ofRs. 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 ofthe 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. A.. 1ongst 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 ofEnvironment and Forest (MoEF) accepted the 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 IOOOM 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 - - N. D. JAYAL v. U. O. l. [RAJENDRA BABU, J. ] 163 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 I989, 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 ofthe implementation lagging behind was taken note of but the project was allowed to continue. From the narration ofvarious events set out earlier, it is clear that even by August 1986 an expenditure of Rs. 206 crores had been incurred for the construction ofthe 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 ofmind 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 Ando/an v. Union ofIndia, [2000] 10 sec 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 t0 pari-passu conditions has also 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 ofIndia, (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 re , 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 N. D. JAYAL v. U. 0. 1. [RAJENDRA BABU, J.

] 165 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 ofpeople 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. Safety Aspect Tehri Dam is being constructed at the confluence of the Bhagirathi and Bhilangana rivers in the neighborhood ofthe 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 ofany 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 (HP!

), 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 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 N. D. JAYAL v. U. 0. 1. (RAJENDRA BABU, J. ] 167 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 oflnternational Academy ofEarthquake Engineering llJld 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 overallfactor ofsafety ofthe dam is high enough to eliminate any riskfrom 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 I . 36g and horizontal acceleration of 0.

72g both acting simultaneously and the dam design was again found to be safe. Even though the design ofthe dam had been earlier independently checked by two separate agencies, it was again examined and it was found that the project appears to be safe. Subsequently, during the pendency of this petition, in order to allay fears expressed in certain quarters, the Government of India in June 1996 appointed a Group of Five Experts to examine the relevant scientific and technical reports and other information relating to safety of the Tehri Dam and make its recommendations to the Government for consideration. In the selection ofthe experts Shri Sundarlal Bahuguna, who has been spearheading the movement against the construction of the Tehri Dam, was also associated and he recommended the inclusion oftwo engineers apart from the three seismologist. Thus the names ofall 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 ofthe performance ofthe 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 ofthe 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 ofthe report ofthe Group ofExperts, 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 ofRiver Valley Projects who in tum 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 ofUP, [1992] Supp. I sec 44, the grant of clearance on July 19, 1990 was called in question N. D. JAY\'\Jv. U. 0. 1. [RAJENDRA BABU, J. ] 169 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 ~nvironmental aspects and it -.

yas particularly examined with reference to the fact that site of the proj~ct is being within the earthquake prone zone and this Court, after specific examination ofthe 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 ofthe 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 question as to whether the government was conscious to the inherent danger as pointed out by the petitkmers 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 ofthe 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 ofthe 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 30 Non-Linear Test or Dam Break Analysis were taken into account by the Government and ifthe 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 malajides, 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 ofthe 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. Ifany 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 decisionmaking agency took a well-informed decision or not. Ifthe 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 ofthis 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 reexamining 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 N. D. JAYAL v. U. 0. 1. [RAJENDRA BABU, J.

] 171 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 itselfbeing in doubt, as expressed in various reports, and text books relied on by either side, the principle 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 ofburden ofproof in environmental cases where burden as to the absence of injurious effect ofthe 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 Ando/an 's case (supra) :- "It appears to us that the 'precautionary principle' and the corresponding burden ofproofon the person who wants to change the status quo will ordinarily apply in a case ofpolluting 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 ofa 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 ofover 40 years in the construction ofdams.

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 Ve/lore Citizens Welfare Forum v. Union of India, [1996) 5 SCC 647, and in MC Mehta v. Union ofIndia, [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 ofcases 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 ofArticle 21 in cases like Samata v. State ofAndhra Pradesh, [1997) 8 SCC 191, and in Madhu Kishore v. State ofBihar, [1996) 5 sec 125. N. D.

JAYAL v. U. 0. 1. (RAJENDRA BABU, J. ] 173 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 ofdevelopment 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 sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is 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 MC 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 ofthe goals ofEnvironmental 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 ofthe means to achieve the object andpurpose ofthe 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 ofthe 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 ofthe environmental clearance certificate ofthe 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 paripassu with 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 ofthe Dam approved by the High Level Expert Committee constituted for the purpose. (B) Comprehensive Environmental Management Plans must be N. D. JAYAL v. U. 0. 1. [RAJENDRA BABU, J. ] 175 fonnulated 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 ofthe Remote Sensing Applications Centre, UP, identify the critically degraded areas confonning to the "very high" and "high" erodability classification and prep~re 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. Obligations of the Government of UP. 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 socioeconomic study ofthe 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 afttr ~onsideration 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 ofthe 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 ofbotanical gardens. The study offlora and fauna must be completed by May, 1991 and action plan prepared thereafter to be executed before impoundment commences. • 3. 5. Water Quality Maintenance (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 .. N. D. JAYAL v. U. O. l. [RAJENDRA BABU, J. ] 177 through legislative action before 31. 3 . 1991. (C) The completion Of studies, formulation of action plans l;Uld 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 ofthe 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 ofthe 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 ofthe Environment (Protection) Act, 1986. " On 12. 4. 1991 another letter was sent again noticing the failure of Tehri Hyde! 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 I9(b) ofthe 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 :- ENVIRONMENTAL TARGET STATUS ISSUE DATE I. Catchment 31. 12. 1990 Only basic data has been Area Treatment received but the status of implementation and the Bar Chart is still awaited. 2. Rehabilitation Socio-economic The status report does not studies by clearly indicate the task 30. 6.

91 and completed so far and the from actual proposed completion implementation programme. In fact it was 31. 3. 1993 agreed by D/Power that a meeting would be arrange with the officials of Administrative Staff College of India who have undertaken the socio-economic survey of the project impact area. This meeting is yet to take place. N. D. JAYAL v. U. 0. 1. [RAJENDRA BABU, J. ] 179 3. Command Area 31. 3. 1993 Group have yet to submit the Development Command Area Development Plan 4. Flora, Fauna May 1991 The report of flora, fauna Studies 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 31. 3. 91 The final version of the Management Plan DMP has not been received (D. M. P. ) in the Ministry 6. Bhagirathi Basic 31. 3. 93 The Group have issued a Management Government Order on Authority 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: I. Catchment Area Treatment 2. Command Area Development 3. Flora and Fauna 4. Water Quality Maintenance 5. Bhagirathi Basin Management Authority 6. Disaster Management 7. Rehabilitation On 17. 9. 1996, the Government of India, on demand for further examination of certain rehabilitation and environmental issues relating to the Tehri Project, appointed a Committee headed by Prof. C H Hanumantha Rao. This Committee basically looked into the Rehabilitation Policy, its implementation and the implementation of various conditions for environmental clearance. Later, Hanumantha Rao Committee submitted it Report (hereinafter, HRC Report) in October 1997. Government of India accepted certain vital suggestions in the HRC Report.

The petitioners allege that even the HRC Report, as accepted by the Government, was not complied with. They argued, based on the clearance certificate that the conditions have to 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 suhmit 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 ofU. 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 - N. D. JAYAL v. U. O. l. [RAJENDRA BABU, J. ] 181 Government of U. P. has set up the Bhagirathi River Valley Authority. Therefore, it is contended that fonnulations of environmental action plans and their implementation is being carried outpari-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 fonnulated 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 ofthis 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 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 ofrecommendations ofHRC 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 pari passu compliance ofthe 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 ofthe Latin wordpari 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 pari passu with the N. D. JAYAL v. U. 0. 1. [RAJENDRA BABU, J. ] 183 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 oftreatment 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 ofCatchment 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 ofthe project was 22000 hectares which does not include the areas covered under CAT prior to inception ofthe 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 ofthe entire catchment ofhigh 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 : 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 ofthe remaining area treatment ofthe 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 of37591. 4 hectares has already been treated till December 200I. 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 N. D. JAYAL v. U. 0. I. [RAJENDRA BABU, J. ) 185 Government ofU. P. to MoEF in July 1998 and the modification ofthe 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 Botanical Survey oflndia (BS! ) and Zoological Survey of India (ZS! ) 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 ofProject region extending to two annual cycles. It also decides to carry out appropriate remedial measu~es ·based on the outcome of the studies. Another decision was regarding the carrying out ofaction 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 ofimpoundment 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 ofthe dam except in case of Mahseer Fish. Study reports by BS! and ZS! were submitted to the MoEF along with plans for protection/propagation of Mahseer Fish recommended by the ZS! and BS!

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. Wa/er 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 ~o 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 ofwater 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 ofthe entire region. Development ofBhagirathi Basin therefore is very important in the context of this case. The Government ofU. 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 ofthe 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 offorest clearance issued in 1987 and 1997 has been 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. N. D. JAYAL v. U. O. I. [RAJENDRA BABU, J. ] 187 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 1OOOm 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 ofthe Tehri dam reservoir, reservoir ofthe downstream dam and the irrigation canals and mandated to get the plan approved by the Ministry ofHealth, 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 MC Metha v. Union ofIndia [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 ofthe area. Ifthese 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 ofplanning, coordina