Holding

The Court held that, absent arbitrariness, it cannot intervene in the government's policy decision or order further safety tests, and that impoundment must await full compliance with the environmental clearance conditions, with monitoring transferred to the High Court.

Summary

The petitioners filed a public‑interest writ under Article 32 seeking a halt to the Tehri Dam project, directions for additional safety tests (3‑D non‑linear analysis and dam‑break simulation), compliance with the conditions of the 1990 environmental clearance, and proper rehabilitation of displaced families. The Government and the Tehri Hydro Development Corporation submitted extensive expert reports indicating that the dam is structurally safe and that the conditions of clearance are being implemented pari‑passu with construction. The majority of the Court held that where the government has taken a well‑informed policy decision after considering expert opinions, the judiciary cannot intervene in the scientific safety analysis or order further tests absent arbitrariness, and that the role of the Court is merely to ensure that the system works as envisaged. It further ruled that impoundment cannot proceed until all conditions of the environmental clearance are fulfilled, but left the detailed monitoring to the High Court of Uttaranchal. The petition was therefore disposed and the matters transferred to the High Court for continued supervision. The dissenting judge emphasized the need for a monitoring mechanism and precautionary measures.

Issues considered

The Court may direct additional safety studies (3‑D non‑linear analysis and dam‑break analysis) for the Tehri Dam.
Whether the project should be halted for alleged non‑compliance with the environmental clearance conditions.
Whether the Court can interfere in policy decisions concerning large infrastructure projects.
Whether the conditions of the environmental clearance (pari‑passu implementation) have been satisfied.
The adequacy of rehabilitation and resettlement measures for displaced families.

Legislation cited

Environment (Protection) Act, 1986s. 19(b), s. 3

Subjects

environmental clearancepublic interest litigationsustainable developmentprecautionary principledam safetyrehabilitationdisplacementpari passuadministrative lawpolicy decisionenvironmental protection act

Judgment

A N.D. JA YAL AND ANR.
v.
UNION OF INDIA AND ORS.

SEPTEMBER I, 2003

B [S. RAJENDRA BABU, D.M. DHARMADHIKARI
AND G.P. MA THUR, JJ.]

Constitution of India, Article 32-Public Interest Litigation-PIL
seeking directions for conducting tests to ensure safety for Tehri Dam and
stoppage of project till conditions attached to environmental clearance
C 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.

D Constitution of India, 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 of seisimicity 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 of High Level
E Committee and Seisimic Expert-A farther Group offive Experts examining
safety of dam and submitting report in February 1998 that present design
was structurally safe but as a matter of abundant caution recommending
conduct of two other studies-Government of India, in consultation with
Central Water Commission and National Committee on Seisimic Design
F 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 of opinion
G 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
H Project-Petitioner objecting to components of rehabilitation package as
152
N.D. JA YAL v. U.O.I. 153
being discriminatory and unreasonable-Government acting on A
recommendations of the 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 of Environment B
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 C
established that Project is being carried on without complying with
conditions of clearance.

Constitution of India, Articles 142, 226-PIL seeking compliance
with conditions of environmental clearance of Tehri Dam Project-Cases D
transferred to High Court of Uttaranchal for monitoring by Division Bench
to ensure conditions of environmental clearance are fulfil-Practice and
Procedure.

Words & Phrases :
E
'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 F
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 G
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. H

.
154 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 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
B 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
C 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 of continuance
of the project was entrusted to a Committee of Secretaries which
reassigned the task to the Department of Mines. Based on the opinion
D 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: 'If the completion ofstudies, formulation
E 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
F 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 of India, (1992) Supp 1 SCC
44).

G 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
H 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 A
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 B
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 C
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 D
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 E
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 : F
(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 G
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 H
156 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 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.
B 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
C rehabilitation aspects.

Disposing of the petitions,

HELD: (per Rajendra Babu, J. for himself and G.P. Mathur, J.):
D 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
E 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)
F
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
G point to consider is whether the decision-making agency took a well-
informed decision or not. If the answer is 'yes', then there is no need
to interfere. The consideration in such cases is in the process of decision
and not in its merits. (170-F, F)

H 1.3. Once such a considered decision is taken, the proper execution
N.D. JA YAL V. U.0.1. 157

of the same should be undertaken expeditiously. It is for the Government A
to decide how to do its job. When it has put a system in place for the
execution of the project and such a system cannot be said to be arbitrary,
then the only role which the Court has to play is to ensure that the system
works in the manner it was envisaged. It is made clear in that decision
that the questions whether to have an infrastructural project or not and B
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 C
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 D
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 E
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 of India, [2000) 10 sec 664, F
followed.

BALCO Employees' Union (Regd.) v. Union of India, [2002) 2 SCC
333 and Tehri Bandh Virodhi Sangarsh Samiti v. State of UP., (1992)
Supp. 1 SCC 44, referred to.
G
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 H
158 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A 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

B 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
C 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
D 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)
E 2 sec 718; Ve/lore Citizens Welfare Form v. Union of India, (1996) 5
SCC 647; MC. Mehta v. Union of India, (2002] 4 SCC 356; Samata v.
State of Andhra Pradesh, (1997] 8 SCC 191; Madhu Kishwar v. State of
Bihar, [1996] 5 SCC 125; State of Himachal Pradesh v. Ganesh Wood
Products, (1995) 6 SCC 363; MC.Mehta v. Kamal Nath, (1997) 1 SCC
F 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 pari-
G passu implementation of conditions prior to the commissioning of the
project shall be closely monitored under the existing mechanism set up
by MoEF and the project authorities will ensure that prior to closing
of diversion tunnels TlITT for impoundment of the reservoir, evacuation,
resettlement and rehabilitation are completed in all respects. In
H addition, the catchment area treatmeet of direct draining areas shall
N.D. JA YAL v. U.0.1. 159
be completed and the project authority will obtain clearance from A
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 B
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 C
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 D
Indian Council for Enviro-Legal Action v. Union of India, [1996) 5
SCC 281; ML. Sud v. Union of India, (1992) Supp. 2 SCC and Mohan
Chand v. Union of India, [1995) Supp., 3 SCC 425, followed.

Per Dharmadhikari, J. (dissenting): E

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 F
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 G
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 of the ecological intervention. H
•

160 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 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
B 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.
C 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.
D
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
E 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
F 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.
G
Under Article 32 of the Constitution of India.

WITH
H T.C. (C) Nos. 50, 51, 52, 53 of 1996.
-
N.D. JA YAL v. U.0.1. [RAJENDRA BABU, J.] 161
K.N. Rawal, Solicitor General, R.N. Trivedi and Altaf Ahmad, A
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
B

appearing parties.

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

WRIT PETITION NO. 295 OF 1992 :
D
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 E
conduct further safety tests so as to ensure the safety of the dam. Secondly,
they allege that the concerned authorities have not correspondingly
complied with the conditions attached to the Environmental Clearance
dated July 19, 1990 and want us to halt the Project till the same is complied
with. Lastly, they want us to look into the Rehabilitation aspects. Subsequent F
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 G
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. H

__..
--/
162 SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

A 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
B for an in-depth review of the whole project. Consequently, an Expert Group
was constituted by the Ministry of Science and Technology. The Prime
Minister's note on the file reads as follows:

"There are several proposals which were agreed to earlier but
would need to be looked into again. A..1ongst them are Silent
c 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
D 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
E recommended to abandon the project. Ministry of Environment 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
F Protocol was signed with USSR for providing technical and financial
assistance for this project to the tune of I OOOM 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
G 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
H 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 A
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 B
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 C
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 D
been taken in 1990 to abandon the project as to how clearance could be
given on July 19, 1990? Again they pointed out that on 21.10.1994 serious
consequences of the implementation lagging behind was taken note of but
the project was allowed to continue.

From the narration of various events set out earlier, it is clear that even
E
by August 1986 an expenditure of Rs.206 crores had been incurred for the
construction of the dam. It is after the THDC Action Plans for consideration
and assessment by MoEF have been submitted. These were considered on
two occasions: firstly, in February 1990 and again on July 19, 1990 and
it is thereafter the conditional clearance was given. It is contended that F
the environmental clearance which was granted on July 19, 1990 is without
proper application of mind and, therefore, the dam construction should not
be allowed to proceed. The law on this aspect has been clearly set out in
the decision of this Court in Narmada Bachao Ando/an v. Union ofIndia,
[2000] 10 sec 664. As in the present case, in the case of Sardar Sarovar G
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.
H
164 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A (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.
B
(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
C 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
D 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.
E Necessary analogy could also be drawn from BALCO Employees' Union
(Regd.) v. Union of India, (2002] 2 SCC 333.

Once such a considered decision is taken, the proper execution of the
same should be undertaken expeditiously. It is for the Government to
decide how to do its job. When it has put a system in place for the
F 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
G 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
H 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 A
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. B
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 C
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 D
river Tehri with a view to provide water and electricity in the area as was
the decision in the Sardar Sarovar project's case also. In such situations,
displacement of people residing in the proposed project sites and the areas
to be submerged is an important issue. Therefore, a properly drafted relief
and rehabilitation plan is absolutely required and the Government was also E
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. F
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 G
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. H
166 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A Safety Aspect
Tehri Dam is being constructed at the confluence of the Bhagirathi
and Bhilangana rivers in the neighborhood of the Garhwal town in the State
of Uttaranchal. According to the petitioners the structure of the dam itself
is not safe and also alleged that its existence increases the seismic
B 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
C damages in the unexpected eventuality of any dam failure. The respondents
submitted that they explored the possibility of such tests and arrived at a
conclusion that such tests are neither practical nor necessary in the present
case.

D 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
E 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,
F which are flatter than the slopes provided in some recent high dams built/
planned in regions of similar high seismicity; that, therefore, the Tehri Dam
is a fail-safe structure and the design has been found safe against the worst
earthquake scenario of the area, even when very conservative and severe
seismic parameters were assumed for these tests. A high level Committee
G 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
H examine issues concerning safety of the dam. The Committee in its report
N.D. JA YAL v. U.0.1. (RAJENDRA BABU, J.] 167

established that even in the worst scenario of possible occurrence of a large A
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. B
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 of Earthquake 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 C
safe from the point of view of seismicity of the region" and "since
conservatism has entered at almost every step of decision making, the
overall factor ofsafety of the dam is high enough to eliminate any risk from
earthquake of the future. " The next Expert Group that consisted of the
Director General, Geological Survey of India, made a report on 25.7.1991 D
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 E
0.72g both acting simultaneously and the dam design was again found to
be safe. Even though the design of the dam had been earlier independently
checked by two separate agencies, it was again examined and it was found
that the project appears to be safe. Subsequently, during the pendency of
this petition, in order to allay fears expressed in certain quarters, the F
Government of India in June 1996 appointed a Group of Five Experts to
examine the relevant scientific and technical reports and other information
relating to safety of the Tehri Dam and make its recommendations to the
Government for consideration. In the selection of the experts Shri Sundarlal
Bahuguna, who has been spearheading the movement against the
construction of the Tehri Dam, was also associated and he recommended G
the inclusion of two engineers apart from the three seismologist. Thus the
names of all the five Experts were suggested by Shri Bahuguna. The Group
of Five Experts, after a detailed discussion on the various issues related
to the seismic safety of the Tehri Dam, concluded that a comprehensive
appraisal of the seismic safety of the dam required completion of the two H
168 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A key exercises by employing recent advances in conceptual and computational
capabilities and they are, (i) quantitative estimation of seismic hazard at
all the Tehri Dam site, and (ii) evaluation of the performance of the Tehri
Dam as currently designed, if it was exposed to the estimated seismic
hazard at the site. Accordingly, the Group of Experts got conducted the
B 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
C 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
D (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
E of the report of the Group of Experts, examined the further recommendation
of the four out of five Experts in consultation with the Central Water
Commission, which is a technical body of the Government and nodal
agency in the country for planning and design of River Valley Projects who
in tum referred the report of the Expert Group together with the need for
F 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
G the views thereof, finally decided that there was no necessity to undertake
the work recommended further by the Four Experts by way of abundant
caution and clearance to the project was given.

In Tehri Bandh Virodhi Sangarsh Samiti vs. State of UP, [ 1992] Supp.
H 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 A
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 of the B
record observed that the project was considered by the Environmental
Appraisal Committee of MoEF, Committee of Secretaries, High Level
Committee comprising experts of scientific and specialised organisations
and also by a renowned expert of international repute and, therefore, the
Government considered the question of safety of the project from various
details more than once and on being satisfied with the reports of the experts C
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 :
D
" ... 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 of the opinions expressed E
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 F
Court which did not interfere with the decision of the Government on safety
aspects in Tehri Bandh Virodhi Sangarsh Samiti's case (supra) again
seriously examined safety aspects as a matter of precaution. The Office
Memorandum dated 1.2.1999 of the Ministry of Power, Government of
India, before us testifies this position. Green signal for further works was G
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
H
170 SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.
A 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
B opinion. It was clearly of the view that the last Committee was unanimous
that the Tehri Dam to be constructed is safe but the advice based on
abundant caution was not accepted. As a result, we need not re-examine
the safety aspects of the dam.

This Court cannot sit in judgment over the cutting edge of scientific
C 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
D 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
E administrative law. If any such decision is based on irrelevant consideration
or non-consideration of material or is thoroughly arbitrary, then the Court
will get in the way. Here the only point to consider is whether the decision-
making agency took a well-informed decision or not. If the answer is 'yes',
then there is no need to interfere. The consideration in such cases is in the
process of decision and not in its merits.
F
In this context, reliance is sought to be placed on the decision of this
Court in A.P. Pollution Control Board v. Prof M V. Nayudu (Retd) &
Ors., (1999] 2 SCC 718. In that decision, this Court viewed that in scientific
matters of complex nature resulting in uncertainty, reference has to be
G made to a specialised technical/expert body and not merely decide the
matter on well known principles of administrative law of court not re-
examining the matter if all relevant considerations have been taken note
of. In the present case when once a decision had been given by this Court
on safety aspects on an earlier occasion and thereafter the matter was again
H examined by the Government through different agencies and had taken a
N.D. JA YAL v. U.0.1. [RAJENDRA BABU, J.] 171
decision as to the necessity of further test by way of abundant caution A
should be relevant or not, we do not think, we can sit in judgment over
such decision, particularly when there is no difference of opinion among
the Experts as to the safety of the dam. It is only by way of abundant
caution such studies were suggested by four out of five experts. Thus the
usefulness or necessity thereof itself being in doubt, as expressed in various B
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 of burden of proof in environmental cases
where burden as to the absence of injurious effect of the actions proposed C
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 of proof on the person who wants to change D
the status quo will ordinarily apply in a case of polluting or other
project or industry where the extent of damage likely to be
inflicted is not know. When there is a state of uncertainty due
to lack of data or material about the extent of damage or pollution
likely to be caused then, in order to maintain the ecology balance, E
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 F
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 G
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 H
172 SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

A is a large dam. The dam is neither a nuclear establishment nor a
polluting industry. The construction of a dam undoubtedly would
result in a change of environment but it will not be correct to
presume that the construction of a large dam like the Sardar
Sarovar will result in an ecological disaster. India has an experience
of over 40 years in the construction of dams. The experience does
B
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
c 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

D 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 of India, [2002) 4 SCC 356, it was observed that the
balance between environmental protection and developmental activities
E 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
F 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.
G
In a catena of cases we have reiterated that right to clean environment
is a guaranteed fundamental right. May be in different context, the right
to development is also declared as a component of Article 21 in cases like
Samata v. State of Andhra Pradesh, [1997) 8 SCC 191, and in Madhu
H Kishore v. State of Bihar, [1996) 5 sec 125.
N.D. JAY AL v. U.0.1. (RAJENDRA BABU, J.] 173

The right to development cannot be treated as a mere right to A
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 B
Nobel prize winner Amartya Sen pointed out that 'the issue of development
cannot be separated from the conceptual framework of human right'. This
idea is also part of the UN Declaration on the Right to Development. The
right to development includes the whole spectrum of civil, cultural,
economic, political and social process, for the improvement of peoples'
well being and realization of their full potential. It is an integral part of C
human right. Of course, construction of a dam or a mega project is
definitely an attempt to achieve the goal of wholesome development. Such
works could very well be treated as integral component for development.

Therefore, the adherence of sustainable development principle is a D
sine qua non for the maintenance of the symbiotic balance between the
rights to environment and development. Right to environment is a
fundamental right. On the other hand right to development is also one. Here
the right to 'sustainable development' cannot be singled out. Therefore,
the concept of 'sustainable development' is to be treated an integral part E
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. F
To ensure sustainable development is one of the goals of Environmental
Protection Act, 1986 (for short 'the Act') and this is quiet necessary to
guarantee 'right to life' under Article 21. If the Act is not armed with the
powers to ensure sustainable development, it will become a barren shell. G
In other words, sustainable development is one of the means to achieve the
object and purpose 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 of the directions H
174 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.
A 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
B 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
c 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.

D The relevant portion of the environmental clearance certificate of the
Tehri dam dated July 19, 1990 is verbatim extracted hereunder:

"Tehri Dam Project was initiated in 1972 for an installed capacity
of 600 MW, now revised to 2400 MW to be taken up in three
E stages. The collection of data and preparation of environmental
action plans is yet to be finally completed. Meanwhile, an amount
of Rs. 440 crores has been spent on various project related works.
The Department of Power and the Government of Uttar Pradesh
have assured to furnish all the detailed action plans according to
a prescribed time schedule and to implement the action plan pari-
F passu 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:
G
(A) The Project Authorities must get the safety aspects and the
design of the Dam approved by the High Level Expert Committee
constituted for the purpose.

H (B) Comprehensive Environmental Management Plans must be
N.D. JA YAL v. U.0.1. [RAJENDRA BABU, J.] 175

fonnulated to the satisfaction of, and got approved from, the A
Ministry of Environment & Forests in a time bound manner as
outlined below:

3.1 Catchment Area Treatment

Obligations of Tehri Hydro Development Corporation (THDC) B

(a) The THDC will, as per the recommendations of the 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 c
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
D

Uttar Pradesh all the requisite resources annually to implement the
action plans.
E
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 F
with the resources provided by THDC.

3.2. Rehabilitation

The THDC will, through a reputed institution, undertake a socio-
economic study of the measures needed to ensure that the standard G
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 H
176 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A population affecting Koteshwar dam as well as those living on the
rim of the reservoir and likely to be affected will be prepared
before 3 1.3 .1991.

3.3. Command Area Development

B 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
c
THDC will commission a study of the flora and fauna going under
submergence as well as that affected by related works in the
region so that reclamation plans can be worked out along with
setting up of botanical gardens. The study of flora and fauna must
be completed by May, 1991 and action plan prepared thereafter
D
to be executed before impoundment commences. •
3.5. Water Quality Maintenance

(a) The THDC will set up water quality monitoring stations to
E 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.
"
F
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
G the area authorities.

3.7. Bhagirathi Basin Management Authority

The Department of Power will ensure the setting up of the
H 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. A
(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 . B
extraneous considerations. These conditions will be enforced,
among others, under the provisions of the Environment (Protection)
Act, 1986."

In a letter sent on 21.10.1994 by the Additional Director, MoEF, it
is noticed that even though the Tehri Dam Project was accorded C
environmental clearance in July, 1990, the status of implementation of
various safeguard measures is lagging far behind.

A communication had been sent as early as in February, 1990
containing the report of the Environmental Appraisal Committee, Ministry D
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 E
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 F
Environment and Fores ts. 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) G
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 H
,-················

178 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A 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 I 9(b) of the Act was issued
for stopping the work on Tehri Hydro Electric Project on the ground that
the non-fulfilment of conditions provided in the environmental clearance
B 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
C lagging behind.

Thereafter, it was noticed that on various aspects follow up is required
as mentioned hereunder :-

ENVIRONMENTAL TARGET STATUS
D
ISSUE DATE

I. Catchment 31.12.1990 Only basic data has been
Area Treatment received but the status of
implementation and the Bar
E 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
F 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
G Administrative Staff College
of India who have under-
taken the socio-economic
survey of the project impact
area. This meeting is yet
H to take place.
N.D. JAY AL v. U.0.1. [RAJENDRA BABU, J.] 179

3. Command Area 31.3.1993 Group have yet to submit the A
Development Command Area Development
Plan

4. Flora, Fauna May 1991 The report of flora, fauna
Studies surveys have been received
B
which have been forwarded
to the BSI and ZSI for their
observations by us.
Comprehensive Action Plans
are still to be formulated.
c
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 D
Management Government Order on
Authority 30.3.91 regarding setting up
of the Authority. Legislation,
however, is yet to be brought
out. E
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 F
2. Command Area Development
3. Flora and Fauna
4. Water Quality Maintenance
5. Bhagirathi Basin Management Authority G
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 H
180 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 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
B 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.

C 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.

D 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
E 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
F 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
G 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
H Government of India. On 23.3.1990, by issuance of a notification, the

-
N.D. JA YAL v. U.O.l. [RAJENDRA BABU, J.] 181

Government of U.P. has set up the Bhagirathi River Valley Authority. A
Therefore, it is contended that fonnulations of environmental action plans
and their implementation is being carried out pari-passu with the construction
of engineering works. While 10% of expenditure over the estimated cost
had been incurred on the project works, the corresponding expenditure
incurred on rehabilitation works and the environmental measures was 41 % B
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. c
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 D
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 E
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/ F
ecology of this region. HRC was constituted to examine the implementation
of various conditions of environmental clearance except that relating to
safety aspects and design of the Tehri Dam and suggest additional or
improved environmental safeguards, if any, based on data and information
now available. HRC, after examining various documents and discussions G
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 of recommendations of HRC
on environment and rehabilitation aspects of the Project on 9.12.1998. H
182 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.
A 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
B separately.
The main controversy in this case is regarding the pari passu
compliance of the conditions in the clearance certificate. Before going into
any detailed evaluation of these aspects the term 'pari passu' needs to be
explained. The lexical meaning of the Latin word pari passu is -at an equal
C 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
D the engineering works. So by the time the engineering works finishes, the
conditions should also have been fulfilled.

Environmental Conditions

Catchment Area Treatment:
E
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.
F 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
G 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
H very high erodability classification has to be completed pari passu with the
N.D. JAY AL v. U.0.1. [RAJENDRA BABU, J.] 183

construction of the project. It is submitted on behalf of the Respondents A
that an area of 37589 ha.- has been treated till December 2001 and soil
conservation measures are being implemented as part of treatment program
for upgrading the environment of the entire region. The treatment of the
remaining area i.e.; 3670.60 ha, is proposed to be completed by September
2003.
B
On the question of Catchment Area Treatment, it is stated that treating
degraded areas in the Bhagirathi catchment started even as early as in 1970.
The area coverage under CAT since the inception of the project was 22000
hectares which does not include the areas covered under CAT prior to
inception of the project. As per the order of the Government accepting the C
recommendations of the HRC is that the project authorities should strive
to complete as far as possible the treatment of the entire catchment of high
and very high erodability classification pari-passu with the construction of
the project so as to be completed before commissioning of the project and
it would be ensured that all direct draining areas of high and very high
erodability must be completed before the ensuing monsoons and the D
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 E
Balance area in Direct Draining [under forest] - 3,670.6 ha

The target for the area remaining to be treated as per the CAT in high
and very high erodability area will be achieved by September 2003 and
with the completion of the remaining area treatment of the catchment under F
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 G
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. H

...
184 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A 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
B 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 13 500 hectares in addition to area earlier treated, i.e.,
a total area of (22746+ 13500] equivalent to 36246 hectares. MoEF,
C 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
D areas already treated. An area of37591.4 hectares has already been treated
till December 200 I. 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
E 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
F 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
G 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 ... "

H 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 of the Plan A
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 :
B
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 of Project region extending to two annual cycles. C
It also decides to carry out appropriate remedial measu~es ·based on the
outcome of the studies. Another decision was regarding the carrying out
of action plan to protect the Mahaseer fish. It is resolved by the Government
to carry out other pre-impoundment studies and to take consequential
supplementary measures. Finally they agreed to conduct another study on D
the impact of impoundment on the flora and fauna in the post-impoundment
period.

In regard to flora and fauna, the study conducted by various agencies
has brought out that no rare species come under submergence of the
reservoir and that there is no adverse impact on the fauna of the dam except E
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 F
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 G
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 H
186 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 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
B monitoring stations and to study the impact on quality of water downstream,
aspects of mineral contamination etc. and to take appropriate steps.

As regards the water quality monitoring, a report was submitted by
the University of Roorkee and its report established that water quality of
reservoir shall not be harmful for aquatic life or other downstream water
·C 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
D 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
E development of Bhagirathi Basin. This is aimed in the larger interest of
protecting the environment of the 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
F executive order, Bhagirathi River Valley Authority. Subsequently, Bhagirathi
Basin Management Authority has been constituted on a statutory basis by
a notification issued on 24.3.1999. Plan for greenbelt development along
the rim of reservoir of the reservoir to prevent soil erosion and flow of silt
has been prepared. For monitoring the implementation of these aspects, an
institutional mechanism has been created. The Regional Office of MoEF
G is set up in the States of U.P. and Uttaranchal and the same is monitoring
all developmental projects including the projects at Tehri. The status of
compliance of forest clearance issued in 1987 and 1997 has been 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
H taken up for necessary corrective action.
N.D. JA YAL v. U.O.I. [RAJENDRA BABU, J.] 187

Impact on Human Health: A
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 B
Tehri dam in 1990. But this was not figured in the clearance given to the
Project by the MoEF. HRC Report pointed out this aspect and made the
recommendation to undertake a comprehensive study of the potential
health impacts of the Tehri dam reservoir, reservoir of the downstream dam
and the irrigation canals and mandated to get the plan approved by the C
Ministry of Health, Government of India. It also recommended to its quick
implementation. The Government accepted this reference in the HRC
Report. Apart from this acceptance, the petitioners allege that no works
have been carried out. ·

Right to health is a fundamental right under Article 21. Protection of D
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 of India [2001] 3 SCC 756. Therefore
the impact of the Project on Human Health cannot be given a go by. It has
to be seriously scrutinized.
E
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 F
and sustainable development of the area. If these aspects are not complied
with, the human life and whole Himalayan environment will be the
casualty. Only its strict compliance could maintain the ecological balance.

Disaster Management :

Disaster Management means all aspects of planning, coordinating and
G
implementing all measures which are necessary or desirable to prevent,
minimize, overcome or to stop the spread of a disaster upon the people or
any property and includes all stages of rescue and immediate relief. It is
a proven fact that lot of human suffering and misery from large number
of disasters can be mitigated by taking timely actions, planning and H
188 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A preventive measures. It is possible only through well functioning disaster
management framework. This will enable us to minimize, control and limit
the effects of disaster and will streamline the disaster management
exercises. Our present relief centered re-active approach after the striking
of disaster need to be changed into preparedness oriented pro-active
B attitude. This is the aim of pre-disaster preparations. Disaster Management
Plans has to play an integral role in this exercise. They are blue prints for
the management of disasters. The Disaster Management Plans should
contain the aspects of disaster prevention and of ways for its management
in the untoward occurrence of a disaster. A proper plan will place the
disaster management exercise on a more firm foundation.
c It is a welcome gesture that the Clearance to this Project contains a
condition for chalking out disaster management plan. Disaster Management
activities should be integrated with the developmental activities. Incidentally,
this is also the resolve of the Yokohama Strategy of the United Nations
International Decade of Natural Disaster Reduction, to which India is a
D party. There is an affirmative obligation on the part of the State to preserve
and protect human life and property. This obligation is an integral element
in fulfilling developmental endeavors. Therefore, disaster management
cannot be separated from sustainable development.

E The respondents submit that the Ministry of Agriculture has approved
the Disaster Management Plan prepared by the THDC. And added that they
are going to dovetail disaster management plan of the state government at
the District level into the plan prepared by THDC. As regards the disaster
management, the nodal agency is the Ministry of Agriculture and disaster
management plan was approved by the said Ministry in 1992 and a Steering
F group has been constituted by the Government in every district under the
chairmanship of district magistrate for flood fighting and related activities
and the Steering group will implement the disaster management plan in
case of any eventuality from the dam. The Government ofUttaranchal has
also constituted a Steering group under the Chairmanship of the Principal
G Secretary (Irrigation and Energy), to meet any emergency situation due to
the dam. But effectiveness of all these exercises is in the proper carrying
out of management activities.

Rehabilitation :

H The construction of Tehri and Koteshwar dams will result in the
N.D. JAY AL v. U.0.1. [RAJENDRA BABU, J.] 189

formation of two lakes having a spread of 42 sq. kms and 2.65 sq. kms A
respectively at full reservoir levels. The Tehri dam will submerge Tehri
town and 22 villages. Another 74 villages will be partially affected. A
major potion will get affected in the first phase with the construction of
the Cofferdam and the remaining by final impoundment. In addition 2
villages fully and 14 villages partially will be affected by the Koteshwar B
dam. By the construction of New Tehri Town, project works and colony
construction will affect another 13 villages. In total, Tehri power project
will affect 37 villages fully, 88 villages partially and the Tehri town.
Rehabilitation of these much-affected people is the main issue before us.

Rehabilitation is not only about providing just food, clothes or shelter. C
It is also about extending support to rebuild livelihood by ensuring
necessary amenities of life. Rehabilitation of the oustees is a logical
corollary of Article 21. The oustees should be in a better position to lead
a decent life and earn livelihood in the rehabilitated locations. Thus
observed tnis Court in Narmada Bachao Andolan 's case (supra). The D
overarching projected benefits from the dam should not be counted as an
alibi to deprive the fundamental rights of oustees. They should be
rehabilitated as soon as they are uprooted. And none of them should be
allowed to wait for rehabilitation. Rehabilitation should take place before
six months of submergence. Such a time limit was fixed by this Court in E
B D Sharma v. Union of India, [1992] Supp 3 SCC 93 and this was
reiterated in Narmada. This prior rehabilitation will create a sense of
confidence among the oustees and they will be in better position to start
their life by acclimatizing themselves with the new environment.
F
The rehabilitation package is prepared. It is also made clear that the
rehabilitation conditions in this case are also applicable to the oustees of
Koteshwar dam as well as those living on the rim of the reservoir and to
all those who are likely to be affected by the project. The concerned
authorities will have to take proper steps to rehabilitate all those who are
entitled for rehabilitation before six months of the impoundment. Without G
the completion of rehabilitation there shall not be any impoundment.

According to the affidavit filed by M.L. Sharma, Under Secretary,
Ministry of Power, on behalf of the Union of India, reported on the status
of the follow-up action on the recommendations of the two expert H
190 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A committees constituted by the Government of India on environment and
rehabilitation aspects of the project and that the recommendations made
by the HRC were considered by the Central Government in consultation
with the Government of U.P. and it was decided to implement those
recommendations as per the decisions indicated against each of the
B recommendation annexed to the Office Memorandum dated December 9,
J998. It is also made clear that the expenditure shall be shared by the
Government oflndia and the Government of U.P. in the ratio of 60:40 and
it was also decided that the Government of U .P. shall take over the direct
responsibility for the entire rehabilitation task to be handled directly by its
officers under the overall supervision and control of the Commissioner,
C Garhwal Division for which the State Government shall issue appropriate
orders accordingly. Recommendations of the HRC, as accepted by the
Government, have been produced before us.

It is contended on behalf of the Government that though developmental
D programme are intended to benefit the citizens of the country but when
displacement is on large scale it is the moral duty of the State to ensure
that those who are being displaced are properly looked after. This Court
in Narmada Bachao Ando/an 's case (supra) noticed that displacement of
people living on the proposed project sites and the areas to be submerged
E is an important issue and a properly drafted relief and rehabilitation plan
would improve the living standards of displaced persons after displacement.
When clearances are given, conditions regarding preservation, conservation
and rehabilitation are imposed and those conditions will have to be fulfilled
by the authorities concerned to implement the project.

F When the Government in their concern in this regard had constituted
HRC and HRC had made various recommendations, some of which have
been accepted, as adverted to earlier, certain grievances are set up in an
affidavit filed on behalf of the petitioners on 4.9.1999 before this Court
and our findings upon those grievances are as follows :
G
I. That HRC gives only 2 acres of land to each displaced family is
not satisfactory. In case of Sardar Sarovar Project in Gujarat, it is
contended that each family is getting 2 hectares of land as a minimum and
there is no logic for discriminating against the project affected persons of
the Tehri Project and such discrimination violates their fundamental rights
H under the Constitution to be treated as equal under the law. We do not
N.D. JA YAL v. U.O.I. [RAJENDRA BABU, J.] 191
think that it would be appropriate to hold that the extent of land A
recommended by HRC is inadequate or insufficient. Such recommendation
has been made by HRC after due deliberation in the matter on the
availability of the land in the region, the life style of the persons affected,
their needs and other relevant factors in this regard. Above all, the project
is being carried out in a hilly area where land is very scarce. In such B
circumstances, we do not think any comparison can be drawn between
Sardar Sarovar Project and Tehri Project. Hence we reject this contention
raised on behalf of the petitioners.
I

2. Next recommendation in respect of which objection is raised is that
the Government of India has chosen to treat as separate families sons and C
unmarried daughters who have attained the age of 21 years on the
prescribed date. It is urged that 18 years should have been taken as the
age for such classification and not 21 years. These matters are in the realm
of decision of the recommendatory body and the Government. If the
Government had chosen any other age, we could not have held it to be D
irrational. The contention that voting rights to citizens had been given even
:it the age of 18 years has no relevance to the facts under consideration.
Therefore, this contention also does not deserve our intervention.

3. The next objection is raised in regard to major sons and unmarried
daughters not being given land but only cash and is not acceptable as the E
same results in discrimination particularly once they have been recognised
as separate families and such discrimination would be violative of their
fundamental rights under the Constitution and it is contended that all major
married sons should be given 2 hectares of land as a minimum and all the
other benefits due to them as a displaced family under the package and they p
can be given the option of taking cash, equivalent to the value of 2 hectares
of land in lieu of the land, if they so desire. This argument also cannot
be accepted because as stated earlier on account of scarcity of land it may
not be feasible to provide land to every family and even such families as
have been treated for purposes of giving larger benefit major sons and G
unmarried daughters are treated as a separate family and not for any other
purposes. Similarly other contention that the unmarried sons and daughters
should be treated as a half a family unit and should be given half hectare
of land or cash in lieu thereof, cannot be accepted.

4. The contention now put forth is that the lands have not been H
192 SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

A acquired as yet for the purpose ofrehabilitation and the affected population
is not rehabilitated as yet and until they are relocated together no further
progress of the work should be allowed and it is further contended that if
the families are displaced for the project these affected persons should be
rehabilitated keeping in view the policy, package and procedure applicable
B to the Tehri project.

In regard to the cases where families have already been shifted and
where rehabilitation has already been done, HRC recommended that only
cash amount awarded to be paid instead of land and the cash option is
recommended considering lack of land available for rehabilitation. Major
C married sons receive Rs.1,50,000 and the major unmarried sons and major
unmarried daughters receive Rs.75,000 each. The Government accepted
this recommendation subject to the condition that all additional living
eligible family members of fully affected families as on 19.7.1990
[excluding those who are given land for cultivation) including families
D already shifted in the past to the resettlement colonies from their earlier
settlements would be eligible to receive payment of an ex-gratia amount
equivalent to 750 times the minimum agricultural wage which at current
rates is Rs.33,000 per person. These are matters of policy and when the
Government takes such a decision bearing in mind several aspects, we do
E not think this Court should interfere with the same.

In cases where families have not been shifted or given rehabilitation
benefits for newly recognised additional families, HRC recommended that
only cash be paid instead of land for same reasons and also recommended
a residential plot be given measuring 200 sq.mt. in a rural rehabilitation
F centre or cost will be given to each major married son. The existing scheme
for grant of interest subsidy on loan for construction of house is
recommended. The Government accepted the same and stated that it shall
be the responsibility of the State Administration based on the census,
voters' lists, and if necessary, separate house to house survey may be
G conducted and that additional family members of the landless agricultural
labourers as on 19. 7.1990 would also be eligible to receive the recommended
ex-gratia amount as for the fully affected land owner families. The
identification of agricultural landless labourers and their additional family
members shall be decided by State Administration. The recommendation
H for allotting 200 sq.m. residential land or cash in lieu thereof, to each
N.D. JA YAL v. U.0.1. [RAJENDRA BABU, J.] 193
married son of the rural land owner family was not accepted by the A
Government. It is contended on behalf of the petitioners that HRC's
recommendations should be accepted by the Government but the
Government has formulated another scheme instead of what is recommended
by HRC and have suggested payment of ex-gratia amount in the same
manner as is given in respect of the affected families and, therefore, no B
exception can be taken to the decision of the Government.

The villages were identified by HRC as fully affected where 75% or
more families are fully affected. HRC recommended that in the partially
affected villages [where less than 75% families are fully affected], the fully C
affected families will have the option of resettling else where with
rehabilitation provisions or remain in the unaffected part of the village.
The families that remain there will be allotted land on pattas from the left
over surplus land. The Government accepted the recommendations as to
the categorisation of the fully and partially affected families and also stated
that they would be entitled to rehabilitation benefits as admissible in the D
existing policy and all additional family members of those families would
also be entitled to receive ex-gratia payment ofRs.33,000. It is contended
on behalf of the petitioners that HRC recommendation should have been
fully accepted by the Government. It was made clear by the Government
that the partially affected families that remain in these villages shall be E
entitled to be allotted submerged land on pattas subject to availability
during the low reservoir level periods for temporary cultivation admissible
under the existing policy. .It is contended on behalf of the petitioners that
the practice of allowing cultivation in submerged land during low reservoir
level periods leads to enhanced siltation of reservoir and, therefore, should F
be discouraged. The view taken by the Government is that even after
accepting the recommendations made by HRC a condition is imposed that
during the low reservoir level periods, land should be given for temporary
cultivation not otherwise. Therefore, it cannot be said that such a condition
is unreasonable.
G
The next objection raised by the petitioners is in regard to the house
construction assistance to each married son and major unmarried sons and
major unmarried daughters @ Rs.60,000 and payment of this amount is
linked with the progress of construction and shifting. The Government did
not accept the same and ordered that the additional members of urban H
194 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A entitled house owner families ofTehri Town as on cut-off-date of 6.6.1985
would also be eligible to draw ex-gratia of Rs.33,000, which, it is stated,
has been subsequently enhanced. For similar reasons stated earlier,
objections raised on behalf of the petitioners stand rejected.

B As regards the rehabilitation programme, the status is that socio-
economic study concerning the living standard of resettled families was got
done through the Administrative Staff College of India, Hyderabad, which
revealed that the quality of life of the resettled families is far above and
better than what was the situation before rehabilitation. A well defined
R&R Policy and Package has been formulated by the Government of U.P.
C and THDC for Tehri Project affected families which has been improved
from time to time to take care of changing requirements. The rehabilitation
of affected families of the project is now being handled by the Government
of Uttaranchal. As a part of Phase II programme covering about 2500 fully
affected rural families to be affected families due to reservoir impoundment,
D additional land has been identified and is being provided and acquired in
Hardwar and Dehradun Districts. Approval of 275.20 hectares of land at
Pashulok and 1083 hectares of land at Pathari Block, on lease basis, has
been accorded by the Government for resettlement of the remaining fully
affected rural families. In addition, proposal for acquisition of about 900
E acres of land in District Hardwar and Dehradun is being processed. The
State Government proposes to complete rehabilitation by June 2003.

The present status of the urban rehabilitation programme covers Tehri
Town involving a total of 5291 families falling within the cut-off date
of 6th June, 1985. The rehabilitation package available for them is as
F follows :

(i) "Under Urban resettlement programme, affected families
are being rehabilitated at the New Tehri Town [NIT] or at
Rishikesh and Dehradun, as per their option. Apart from
compensation for their existing/shops and other structures at
G the Old Tehru Town, land/house owner oustees are provided
with plots at a nominal cost for building their houses. The
tenants at the old Tehri Town are being given built-up flats,
on payment on subsidised terms.

(ii) For the urban shop-keepers, shops have been constructed at
H NIT, Rishikesh and Dehradun.
N.D.JAYALv. U.O.I. [RAJENDRABABU,J.] 195
(iii) The details of the Urban Rehabilitation Package are given A
in the rehabilitation policy booklet enclosed hereto as
Annexure IV."

As regards the rural rehabilitation, the policy is :

I. Rural oustees to be compensated through allotment of B
agricultural land or cash in lieu thereof.

2. The rural oustees should be settled in large blocks so that
the fabric of their social life remains intact.

3. Oustees or their representatives be involved to the extent C
possible in selecting the rehabilitation centres.

4. To the extent possible, consideration be given to the
preference of the oustees for settlement at a particular center.

5. Community facilities be provided at each of the rural D
rehabilitation centers at the cost of the project even if these
did not exist at their earlier settlements.

It is further pointed out that package has been further improved from
time to time without changing its basic features and the details of the E
rehabilitation are set out in Annexure V. Various facilities provided are
set out in Annexure VI. The progress of the rural rehabilitation is as
follows:

"RURAL DISPLACED FAMILIES
F
Activity Total Fully Families %age Progress
Affected Rehabilitated/
Families** Paid compensation

Phase-I 2064 2034 98.50
G
Phase-II 3365* 973 29.00

TOTAL 5429 3007 55.38

*In addition to these fully affected families, 3810 families are H
196 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A partially affected who are not to be relocated but are to be paid cash
compensation for their part-land coming under submergence. Besides,
they would be provided all other benefits as laid down in the Policy for
them.

B **The figures are based on the survey conducted by Rehabilitation
Directorate, Government of Uttaranchal in 200 I.

PRESENT STATUS OF RURAL REHABILITATION
S. Description No. of Total No. of Fully No. of fully Balance
No. affected land Affected affected affected of fully
c Villagers affected
(in acres)
Families families
to be
families affected
rehabilited families
rehabilitat- from
ed rehabilition

1 2 3 4 . 5 6 7 8
1 Full 37 2293.93 3355 3355 2883 472
submerged/
Affected Area
D
2 Partially 72 1936.911 ·5ss4 2074 124 1950
Submerged I
Affected Area

TOTAL 109 4930.841 9239 5429 3007 2422

E Add 5% Extra (for landless persons + increase families since last
survey) : 121

BALANCE FAMILIES OF TEHRI DAM FOR RESETTLEMENT:
2543.

F Note : (i) Above details are based on survey conducted in
the year 200 I.

(ii) *3810 families are partially affected families,
which are not to be shifted."

G A socio-economic study of the families rehabilitated was conducted
by the Administrative Staff College of India, Hyderbad in March 1993.
Similarly, the Estimates Committee of U.P. Legislature has also visited
some of the resettlement colonies in 1989 and an extract from their report
reads as follows :

H "The Committee during its visit inspected the resettlement colonies
N.D. JAYAL v. U.0.I. [RAJENDRA BABU, J.] 197
at Bhaniawala, Raiwala and Pathri Block The Committee found A
that the facilities provided in these colonies are better than any
village in the country. There are well laid roads. There is
provision for street lighting. Provisions for Irrigation and Drinking
water are available. Efforts have been made to provide the
facilities of Hospitals and Schools."
B
There have been several further improvements in the rehabilitation
package for the Project affected families. House construction assistance
for Old Tehri land owners was increased from the minimum of Rs. 60,000
to Rs. 1,25,000 without any deduction of previously paid compensation
which corresponding increase in other slabs. Thus, the amount of house C
construction assistance admissible to urban house/land owner families as
under:

I. Tenants to be provided constructed flat at lower rate of pre-1989
cost i.e., @Rs. 1819 per sq.m. in place of Rs. 3771 per sq.m. The hire
purchase scheme, therefore, as mentioned in the rehabilitation policy has D
been withdrawn.

2. The shop keepers of old Tehri town to be provided shops in NIT/
Dehradun!Rishikesh at pre-1989 cost i.e., @Rs. 1440 per sq.m. in place
of Rs. 3707 per sq.m.
E
3. The Government ofUttaranchal have on 7.7.2001 allowed to the
shopkeepers of Old Tehri Town a goodwill grant varying from Rs. I to
3 lacs on handing over the possession of their shops. 620 shopkeepers have
been paid this amount upto 31.10.200 I.
F
4. The Government of Uttaranchal have also allowed 46 nos. of
advocates who were practicing before year 1985 to receive a grant of
Rs. 1.50 lacs each, distribution of which is under process.

Further proposals have also been made for changes in the conditions
of eligibility for allotment of 2 acres of land for such of those persons who G
had sold their holding to meet emergent needs before the issue of Section
4( I) notification under the Land Acquisition Act, grant of house construction
allowance to rural families, increase in the amount of cash grants for
purchase of seeds and fertilizers, and increase in the amount of cash in lieu
of land allotment to Rs. 5 lacs as against the existing limit of Rs. 2 lacs. H
198 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A Proposals had since been discussed with the Government of India in inter-
ministerial meeting held on 14.12.2001. Further developmental activities
are also to be carried out including construction of bridges and roads,
establishment of degree and intermediate colleges in rural areas, an ITI,
upgradation and setting up of hospital/medical facilities, improvement of
B electricity lines and sub-station, etc. The Government further gives the
details of the land available and the proposed number of families for
resettlement. For grievance redressal certain camps had been organised by
the Director, Rehabilitation approved by the Government and a grievance
redressal cell is functioning in the Rehabilitation Directorate, Uttaranchal
C Government. Coordination Committee under the Chairmanship of the
Commissioner, Garhwal and Co-chairmanship of the CMD, THDC and
having Government officials and public representatives as its members,
monitors the progress and coordinates between different departments about
the progress of work and redresses the difficulties experienced by different
departments and partially affected families and give its decision/directions.
D The Government has also set out details on the Project Works to which
reference at this stage may not be necessary.

On the question of resettlement and rehabilitation, the first phase
covering those affected due to construction of coffer dam and closure of
E diversion tunnels T3/T4 is complete and in the second phase, all remaining
families to be affected due to impoundment of reservoir would be
rehabilitated. Details of the same are set out as under :

"Urban Total Affected Families:

F 5291 [100% families have been compensated in the form of houses,
plots and shops except affected families from Koteshwar dam]

Gramin Total Affected Families:

9239 (Compensation paid - 7291 compensation yet to be paid -
G 1948]."
It is no doubt true that in regard to certain aspects such as Catchment
Area Treatment, conditions imposed are not fully implemented and it is
not very clear from various affidavits filed whether in regard flora and
H fauna also the conditions have been fulfilled or not. When pari-passu
N.D. JAYAL v. U.0.1. [RAJENDRA BABU, J.] 199

conditions have been imposed, it is necessary that the conditions are A
fulfilled along with the construction of the engineering works. In refuting
the contention of the petitioners that impoundment in the reservoir has been
done before the pari-passu implementation of environment and forest
conditional clearances, it is stated as follows:

"Diversiun tunnels on the right bank, T3/T4 have been closed in
B
December 200 I for taking up construction of stilling basin and
shaft spillway. The reduced levels of T3 and T4 tunnels are 606
Mand 609 M respectively. Diversion tunnels on the left bank, Tl/
T2 have been kept open for discharging the water downstream.
The reduced level of both Tl and T2 is the same viz., 632 M. The C
current quantity of discharge remains unabated from the discharge
prior to the start of project construction. There is no alteration/
reduction in quantity of water discharged from the river prior to
taking up the project and as of now. The maximum discharge in
the river observed during floods in the year 1978, that is 3669 D
cumecs.

Impoundment in the reservoir is generally done for the purpose
of deriving benefits from the storage by creating facility for
irrigation, drinking water supply, power generation etc. As a E
matter of fact, none of the benefits are presently accruing from
the project at the current stage. Diversion tunnels T3/T4 have
been closed for taking up construction of stilling basin before they
are permanently closed."

It is submitted on behalfof the respondents that the initial impoundment F
in the reservoir will start with the closure of diversion tunnels nm and
water level rising to EL 700 M. The maximum draw down level is EL
740 M. The reservoir spread at EL 700 M will be 10 sq. km. Compared
to full reservoir spread at 830 M of 44 sq.km. The present water spread
ofreservoir at EL 632 Mis 1.2 sq.km. only. It is also made clear on behalf G
of the respondents that this implied that commensurate safeguards in the
works related to Catchment Area Treatment, Command Area Development,
Rehabilitation and resettlement, protection of flora and fauna, disaster
management plan, etc. are ensured along with the progress of the construction
works and it was also implied that the completion of project meant rise H
200 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A in water level in the reservoir and simultaneously increase in the water
spread.

It is made clear that the condition of pari-passu implementation of
conditions prior to the commissioning of the project shall be closely
B monitored under the existing mechanism set up by MoEF and the project
authorities will ensure that prior to closing of diversion tunnels Tl /T2 for
impoundm'ent of the reservoir, evacuation, resettlement and rehabilitation
are completed in all respects. In addition, the catchment area treatment
of direct draining areas shall be completed and the project authority will
obtain clearance from MoEF before closing the outlet at EL 700 M. An
C additional affidavit has also been filed on behalf of the Union of India to
the effect that a high level inter-ministerial review committee would be
constituted consisting of Secretaries of all the concerned Ministries of the
Central Government to examine various aspects and closely monitoring of
the same. It is only after the completion of these conditions, impoundment
D would start. This categorical statement made by the respondents should
assure the petitioners that no impoundment would be allowed until all the
conditions in the Environmental Clearance Certificate of the Tehri Dam
dated July 19, 1990 are complied with and stand fulfilled.

E The petitioners have disputed that the respondents have complied
with the conditions of clearance. But a careful analysis of their pleadings
will indicate the dispute is to the extent of compliance only and not that
there is no compliance at all. On behalf of the Union of India a status
report supported by an affidavit is filed which indicates that there is
substantial compliance with all the conditions. We have in detail discussed
F the various facts set out in the said affidavit and status in the earlier portion
of this order.

In this background, we find that the petitioners have not established
or is there any material to conclude that the Project work is being carried
G on without complying with the conditions of clearance. Though there were
certain lapses at certain stages, they were taken care of by monitoring
agencies.

To ensure that all the conditions for environmental clearance are
H fulfilled and for proper monitoring, we transfer all these cases to the High
N.D. JAY AL v. U.0.1. [RAJENDRA BABU, J.] 201

Court ofUttaranchal to be dealt with by a Division Bench. The High Court A
shall deal with these matters as if filed before it and shall be at liberty to
pass any orders. However, it is made clear that it shall not be open to
re-examine the matters such as safety of the dam and other aspects relating
to implementation of conditions contained in the Government orders
which have been decided in this case. This course we are adopting B
following a line of cases in Indian Council For Enviro-Legal Action v.
Union of India & Ors., [1996] 5 SCC 281; ML. Sud & Ors. v. Union of
India & Ors., [1992] Supp. 2 SCC 123, and Mohan Chand v. Union of
India & Ors., [1995] Supp. 3 SCC 425, which were all cases filed under
Article 32 of the Constitution and in one of the cases, which pertained to C
environmental issues, it was observed as follows :

"As far as this Court is concerned, being conscious of its
constitutional obligation to protect the fundamental rights of the
people, it has issued directions in various types of cases relating D
to the protection of environment and preventing pollution. For
effective orders to be passed, so as to ensure that there can be
protection of environment along with development, it becomes
necessary for the court dealing with such issues to know about the
local conditions. Such conditions in different parts of the country
are supposed to be better known to the High Courts. The High E
Courts would be in a better position to ascertain facts and to
ensure and examine the implementation of the anti-pollution laws
where the allegations relate to the spreading of pollution or non-
compliance of other legal provisions leading to the infringement
of the anti-pollution laws. For a more effective control and F
monitoring of such laws, the High Courts have to shoulder greater
responsibilities in tackling such issues which arise or pertain to
the geographical areas within their respective States. Even in case~
which have ramifications all over India, where general directions
are issued by this Court, more effective implementation of the G
same can, in a number of cases, be effected, if the High Courts
concerned assume the responsibility of seeing to the enforcement
of the laws and examine the complaints, mostly made by the local
inhabitants, about the infringement of the laws and spreading of
pollution or degradation of ecology." H
202 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A [See: Indian Council For Enviro-Legal Action's case (supra), at
p. 301]

Proceedings arising under Article 32 need not always be dealt with
by this Court alone and in appropriate cases suitable directions, including
B transfer of the matter, can be issued to High Courts or other authorities
(Like, National Human Rights Commission) to deal with such matters.
Thus, we find that it is legal and expedient to transfer these cases to the
High Court of Uttaranchal.

Accordingly, with these directions, this petition shall stand disposed
C of.
T.C. (C) NO. 5011996, T.C. (C) NO. 5111996, T.C. (C) N0.5211996, T.C.
(C) NO. 5311996 :

In the light of the orders made in Writ Petition No. 295 OF 1992,
D these Transferred Cases shall stand disposed of in the same terms as set
forth above.

DHARMADHIKARI, J. : Having carefully perused the opinion of
learned Brother S. Rajendra Babu J. I find myself unable to agree with him
E that no directions to the respondents in this Writ Petition are required. In
my considered opinion, looking to the dimensions and implications of the
case on environment and human rights a monitoring mechanism is required
to be set up and activated to ensure compliance of the conditions on which
clearance was granted to the construction of a dam in Himalayan Valley
p near Tehri. It may be legal but not efficacious to transfer this writ petition
under Article 32 of the Constitution of India to the High Court of
Uttaranchal for monitoring the compliance of the conditions on which
environmental clearance was given to the Tehri Dam Project. With utmost
respect, therefore, I have considered it necessary to record my separate
G opinion with conclusions containing the directions which are required to
be issued to the respondents in theis writ petition.

Learned Brother S. Rajendra Babu J. has in detail given necessary
facts an events leading to the fillign the writ petition. I would, therefore,
confine myself to giving the necessary background on which my opinion
H and conclusions are based.
N.D. JA YAL V. U.0.1. [DHARMADHIKARI, J.] 203

Jn this writ petition under Article 32 of the C<instition of India filed A
by the petitioners in public interest, directions are sought to be issued to
the respondents, representing the authorities and Corporation or Union and
State Governments, to take necessary measures for protecting environment
and human rights which are likely to be adversely affected by construction
of Dam in the Valley of Himalayas near Tehri town of the new State of B
Uttaranchal.

The rivers Bhagirathi and Bhilangana rise from glaciers in the
Himalayas, part of Garhwal of erstwhile North-Western UP and now part
of the new State of Uttaranchal. The two rivers flow south to the plains C
to form confluence as the Holy river Ganga. Close to the Garhwal town
ofTehri at the confluence of two rivers Bhagirathi and Bhilangana more
than three billion $ clay core rockfill dam is beign constructed in the upper
Ganga basin. The dam area will cover 45 kms. Bhagirathi valley and 25
kms. Bhilangana valley with water spread over an area of 42.5 sq. kms.
which will submerge nearly I 00 villages including the town Tehri as many D
as 90,000 families will be relocated as the result of the dam project. The
Government oflndia and the State fo Uttranchal claim that the dam project
had undertaken to generate 2,400 mg. watt of electricity and will create
irrigation facilities for 2,070 lakh hectares of land. There are plans also to
create supply of 500 cusecs of water of New Delhi. E
Human Rights and environment activists have approached this Court
to protect the interest of general public and particularly the people living
in Tehri town and in surrounding area of Garhwal who are likely to be
dispalced fo completion of the Project. They have also raised issues of great F
importance such as the safety of the Dam and the likely devastation and
Joss of properties and lives of the people in the down stream, if the Dam,
being situated in a highly earth quake prone area, bursts or leaks. It is stated
that structurally the dam may be incapable of withstanding earthquake of
above seven on Richter scale. It is submitted that great danger is posed to G
down stream cities and population particularly the holy Pilgrim centres like
Haridwar and Rishikesh which are in danger zone. The structural flows of
the dam and rehabilitation policies provoked public agitation and
international attention. The Dam Project was stopped which had begun in
1978.
H
204 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A A petition was filed in this Court by Tehri Banch Virodhi Sangh
Samiti in the year 1985 for intervention of the Court to stop construction
of the Dam as it puts great threat to the safety and lives of the people living
in surrounding villages and towns and also holy places down stream. The
petition was dismissed by this court and the decision is reported in (1992]
B Suppl. I sec 44. The Court relied on the techincal data furnished by the
Government which had prepared the Plans for Tehri Dam Project and held
that since all aspects of safely have been taken into account by Indian and
foreign Experts, the Court has no ground before it to restrain the authorities
from proceeding ahead with the implementation of the Project.

c In the year 1986, the Soviet Union agreed to fund the project with
loan on concessional terms. As a part of the agreement with the Government
of India for funding the Project, the Soviet Experts conducted a review of
the proposed Project and gave a finding that the highest seismicity of the
Tehri area had not been adequately taken into consideration by Indian
D planners. The combined Soviet and Indian teams also found that the life
of the Dam claimed to be 100 years may not be accurate and its life would
be 62 years or less. They also found that about 85 ,600 people would be
displaced by the project.

E At this stage of hearing of the case, several developments which took
place in the interregnum are required to be stated. As a result of public
agitation and protest from the people of Garhwal region to the Project for
construction of Dam, in March 1980, the then Prime Minister of India
intervened and directed an in-depth review of the Project by an expert
group constituted by the Ministry of Science and Technology. The
F technical group submitted its report in 1986 and recommended abandonment
of the Project despite expenditure already incurred in the sum of Rs. 2,006
crores. Environmental Appraisal Committee (EAC) which is a Expert Body
within the Ministry of Environment and Forests recorded a unanimous
conclusion that Tehri Project did not merit environmental clearance and
G should be dropped. The Tehri Project was thereafter revived only when
USSR Government agreed to provide technical and financial assistance.
The Dam Project which was initially taken up by the Irrigation Committee
of erstwhile State of Uttar Pradesh was taken over by a joint venture
company of Government of India and State Corporation viz., Tehri Hyde!
H Development Corporation (respondent herein). The Corporation took over
N.D. JAY AL v. U.0.1. [DHARMADHIKARI, J.] 205
the construction of Dam in July 1988. The Corporation reformulated A
Environment Policy. It was in February 1990 that the EAC in the Ministry
of Environment and Forests came to the conclusion that taking into
consideration the risks and hazards involving ecological and social impact
with huge cost and less benefits, the Dam Project does not merit
environmental clearance. The exact words of EAC are as under :
B
"Therefore, taking into consideration the geological seismic setting,
risks and hazards and ecological and social impact accompanying
the Project, the costs benefits expected and and after a careful
examination of the information and data available, the Committee
has come to the unanimous conclusion that Tehri Dam Project, c
as proposed, should not be taken up as it does not merit
environmenal clearance".

In noITfl.a! course, the conclusion of the EAC should have closed the.
matter for abandoning the Project, Surprisingly, the continuance of the D
Project was entrusted to a Committee of Secretaries. The Committee re-
assigned the task to the Department of Mines. The Department of Mines
relied on the opinion of Prof. Jaikrishna who is an earthquake Engineer
when Dr. V.K. Gaur who is seismologist had given a dissenting opinion
and so also the foreign expert Dr. N. Brune. E
It is after this re-appraisal of Project from safety point of view by the
Department of Mines based on the expert opinion of earthquake Engineer
Prof. Jai Krishna, cleamance given was given on 19 .7.1990 to the Project
by the Ministry of Environment and Forests. Since by this time the
Environment Protection Act 1986 with Environment Protection Rules F
framed therefunder had already come into force making it a statutory
requirement to obtain clearance from the Environment Department for
undertaking the Project of such dimension affecting environment, ecology
and human beings, only a conditional clearance was granted to the Project.
The various conditions subject to which the environmental clearance to the G
Project was granted have been reproduced in the opinion ofleamed Brother
S. Rajendra Babu J.

The final condition stated thus : ifthe completion ofstudies,formulation
ofAction Plan and their implementation to be scheduled in such a way that H
206 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 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 Provision of Environment Protection Act 1986.

The Ministry of Environment and Forests wrote a letter on 12.4.1991
B expressing dis-satisfaction on failure to comply with the conditions on
which environmental clearance was given. The respondent-Corporation
was directed to submit comprehensive Environmental Plan for effective
implementation failing which remedial or prohibitive action under the Act
of 1986 was proposed.

C On 5.1.1991 the petitioner gave a notice under Section !9B of the
Act to the Secretary of the Ministry of Environment and Forests stating
that the result of non-fulfillment of condition of clearance of the Project
by the Corporation, direction should be issued to stop the Project work.
Significantly, after service of this notice on 21.10.1991 an earthquake
D measuring 6.1 on Richter scale hit the Garhwal region causing massive
damages to Uttarkashi and Chamoli villages killing 2,000 people. Damage
was also caused to constructions for dam already made and Tehri town
itself. The Power Ministry, however, maintained that half finished Dam
works, were not damaged. This earthquake which shook Garhwal region
E naturally revived dabates and protests on the location of the Dam and its
safety in such a highly earthquake prone region. The petitioners again
raised the question as to whether the Dam as designed and completed
would withstand likely earthquakes of more than 6.1 on Richter scale. The
present petition was filed on 7.12.1991 in which issues of safety of the
Dam, its adverse impact on environment, displacement of people and their
F rehabilitation have all been raised. Specific issue has been raised that due
to non-fulfillment of the condition of environmental clearance, there is no
legal justification to allow further construction works at the Dam site.

In the communication dated 21. I 0.1994, Additional Director, Ministry
G of Environment clearly mentioned that after grant of clearance in 1990, 'the
status of implementation of various safeguard measures were lagging far
behind'. It was also pointed out that there is an urgent need to evolve
monitoring mechanism for the Tehri Dam Project. On 5.12.1995 through
an intervention application a leading Human Righ Activist of Garhwal Shri
H Sunder Lal Bahuguna sought opportunity of participation in the case by
N.D. JA YAL v. U.0.1. [DHARMADHIKARI, J.) 207
producing on the soot studies of the impact of the Project on the A
environment and the people of the region.

On the orders of this Court made in this petition on 17. 7.1996 the
Government set up two Expert Committees; one on the safety aspects and
other on the environment and rehabilitation aspects. The case stood B
thereafter adjourned several times awaiting the report of the Expert
Committees. The subsequent developments were reported to this Court that
the Reports of the Committt;es were under consideration of National
Committee of seismic design parameters and an Inter-Ministerial Committee
of Secretaries of the Department of Environment and Rehabilitation. On
27.10.1998, an affidavit was filed by Secretary, Ministry of Power C
indicating that the State Government has given its concurrence to the
Report of the Committee on Environment and Rehabilitation aspects.

0'1 2.2.1999 again an affidavit was filed by the Secretary, Ministry
of Power placing on record the Government of India's decision to D
implement the recommendations of both the Committees. In the said
affidavit it was also stated that the Government had issued a final order
accepting conclusions of group of experts on safet aspects. It is reported,
that there is no necessity to undertake further steps as recommended by
the experts viz. (1) 3-D Non-Linear Analysis of Dam to evaluate its E
performance against the maximum credible earthquake (2) Simulated Dam
Brake Analysis suggested to be undertaken as a matter of abundant caution
by the four experts. It may be mentioned that in the mean time the new
State of Uttranchal having been formed comprising Garhwal in which the
site of dam falls, the State of Uttranchal has been impleaded as the
successor to the erstwhile State of Uttar Pradesh. F

The learned counsel appearing for the petitioner and the intervener
in their separate submissions mainly raised two questions based on the
constitutional law and the statutory laws i.e. the Environmental Act and
the Rules framed thereunder. The thrust of the argument is that from safety G
aspect and from adverse impact on environment and human life of the area
and more so when conditions on which clearance to the Project had been
given have not been fulfilled, this Court should interdict the Project at least
till all conditions are fulfilled to the complete satisfaction of the Department
of Environment, and this Court. H
,,

208 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A It is undeniable that execution of river valley projects is an important
element of growth and development strategy. The dams have become
symbol of national development. The dams too have potentials of solving
many economic problems. Control of floods, famines, food shortages,
unemployment, urban water shortages and the power shortages are all
B possible with the help of execution of such dams. These projects do have
benefits but they have adverse environmental implications. Tehri dam
project is in the valley on Himalayas. The Dam project would involve
ousting of thousands of poor villagers and farmers living in the valley. The
old Tehri town would be under submergence. The new Tehri Town has
been raised and being developed. The basic environmental issues are
C saving the flora and fauna that is abounding the region. The other aspect
is of danger to the upstream and down stream human population because
Tehri dam area and surrounding Uttarkashi area had already suffered
successive earthquakes in short intervals and the area is known to be
seismically unstable. It is held by the exprets, as earthquake-prone. The
D Project will also destroy and has already destroyed to a large extent forest
tracks. Along the river deforestation has endangered the river itself and
after impounding of water there would be large scale erosion of river bank.
When such projects are undertaken, there are competing claims of technocrats
and engineers eager to put the country on the path of development and
E environmentalists who see a serious danger to ecology and environment.
These are the two conflicting claims and aspects which need Court's
intervention for a balanced approach and consequential remedial action.
The problem before the country with more and more dam projects being
undertaken is how to make use of natural resources for improving human
health, welfare and comfort without depleting or damaging them over a
F foreseeable period of time. A strategy for conserving or resources-effective
use of non-renewable resources is the imperative demand of modem times.
Whereas, minimum sustainable development must not endanger the natural
system that supports life on earth, constant technological efforts are
demanded for resources-effective production, so that sacrifice of one eco-
G system is counter balanced or compensated by recreating another system.
(See discussion on the topic in the Book 'Environmental Solution and
Development' authored by Chander Pal at pages 198-201 & 236-237)

By river valley dam projects ther are adverse up-stream impacts and
H down stream impacts on environment. The upstrem environmental and
N.D. JA YAL v. U.0.1. [DHARMADHIKARI, J.] 209
ecological impaccts of big dams are : A
(I) Soil erosion (2) micro-climatic changes (3) loss of forests, flora
& fauna (4) changes in fisheries, especially on spawning grounds (5) chain
effects on catchment area due to construction and displacement etc. (6)
landslips, siltation and sedimentation (7) breeding of vectors in the B
reservoir and increase in related diseases (8) seismicity (9) loss of non
forest land (IO) water-logging around reservoir (11) growth of weeds.

Down stream impacts

The down stream environment impacts of the large dams are : c
(I) Water-logging and salinity (2) micro-climatic changes (3) reduced
water flow and deposition in river, with related impacts on aquatic eco-
system, flora and fauna (4)flash floods (5) loss of land fertility along with
river (6) vector breeding and increase in related diseases.
D
These adverse effects have long tenn and irreversible loss of quality
of human life and other creatures in the region. In order to meet such
adverse impact on environment, a thorough environment impact assessment
has to be made before the clearance of the dam. The Department of
Environment and Forests has prepared detailed guidelines before a project E
is cleared. Wherever certain conditions for clearance are imposed they are
to be strictly adhered to.

There are economic costs as well as social costs and environment
costs involved in a project of construction of large dam. The social costs F
is also too heavy. It results in wide spread displacement of local people
from their ancestral habitat and loww of their traditional occupations. The
displacement of economically weaker sections of the society and tribals,
is the most serios aspect of displacement from the point of view ofuprooting
them from their natural suroundings. Absence of these surroundings in the
new settlement colonies shatters theri social, cultural and physical links. G
The large dam projects are, therefore, required to be taken care by
the Government with utmost concern of the poor and the deprived sections
of the society who are necessarily to be displaced from their habitat and
shifted to a totally new environment and way of life. The poor and the H
210 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A marginalized group in carrying out of a dam project suffer most because
the natural resources-base of their survival are eroded and cash compensation
of land at a different location many times does not fully rehabilitate them.
The dams are built by public funds with the aim to satisfy the energy and
water needs but what benefit ultimately it would give to the displaced
B people should also be taken care of. The conflicts over natural resources
which frequently come to Courts are therefore conflicts over rights between
haves and haves not.

The protest of ecologists, as is brought before us in this Public Interest
Litigation, is not to be seen as obstructionists and anti-progress because
C the petitioners are actuated by desire to obstruct ecological destruction and
to halt the process that results in progress for a few and hardships for many.

The Government can utilize the natural resources for common good
but cannot be allowed to exploit or virtually plunder it in a manner to
D deprive those presently sustaining their lives on those natural resources and
deprive the coming generations who have also a right of living on those
resources. On these fundamental issues, there is a cleavage between
technological experts, environmentalists and human rights activists. The
court is faced with an issue not easy to decide as to which Section of experts
E and environmentalists is right in their approach.

Ours is a constitutional democracy and we are called a 'Welfare
State'. "Welfare" not me'an that we have only to strive for fulfillment of
political theory "Greatest good of greatest number". Our motto from vedic
times has been sarva jan Hitay, sarva jan sukhai (benefit of all and
F happiness of all).

Our Vedic prayer is ....

"Let all be happy, let all be sin-free, let everyone see good in
everything. There should be no suffering anywhere. "
G
It is, therefore, necessary that when a multimillion big dam project
is undertaken to generate electricity and for providing water for irrigation
and dimking, we should not leave those living by the side of river from
generations to a suffering by displacement to a far off place which would
H deprive them of their life and life style. In the march of progress, the
N.D. JAY AL v. U.0.1. [DHARMADHIKARI, J.] 211

humblest and the weakest should not be left behind. Man living in the hills A
or valleys is dependant for survival on natural resources. To remove him
and rehabilitate him in the plains is taking a fish from the river and putting
it into a artificial reservoir or an equarium where it might survive but can
never be happy. All efforts are, therefore, required to be made that the
dispalced or oustees, who were hitherto getting benefits form the river for B
their survival, are adequately compensated by minimum possible disturbance
to their life sources and style of life. In implementation of large river dam
projects the utmost concern of the State should be interest of the oustees.
Before electricity is generated and drinking water is made available to
urban population up to Delhi, care has to be first given to the needs and C
demands of the people who live in the hills and valley and face ouster.
Before the reservoir is full to its optimum capacity to generate electricity
and provide irrigation, the work of rehabilitation to the optimum satisfaction
of the oustets must be completed. In this direction, the affidavit filed by
the Ministry of Environment, does not vouchsafe that the work of
rehabilitation has been completed to the satisfaction ofnot only the officials D
of the rehabilitation department but the oustees themselves speaking
individually or collectively.

On behalf of Union oflnida and the Tehri Development Corporation,
the separate reply on affidavit has been filed to counter the allegations E
made by the petitioner that the conditions granted in the order of clearance
given by the Ministry fo Environment have not been complied with
Learned counsel Shri Kirit Rawal made strenuous effort by taking us
through to the several reports of the committees received from time to time.
The techinical data and other information collected in this matter of
fulfillment of the conditions of clearance have all been placed before us. F
The submission made is that where the conditions imposed for clearance
are to be implemented pari passu with the engineering works, it is
comtemplated by the conditions themselves that side by side with the
engineering work, the conditons to protect environment for treatment of
catchment area, development of Common Area and rehabilitation will go G
on. In a project of such huge dimensions involving multifarious engineering
and non-engineering activities, fulfillment of conditions laid down to
undertake the Project have to be taken up simultaneously with the
construction work of the dam and proportionately with the progress of
engineering work. A Chart to show such progress has been submitted by H

...
212 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A Tehri Development Corporation to impress upon this Court that although
the time schedule has not been strictly adhered to because of the several
difficulties and obstructions in the progress of the project, the conditions
have been achieved in proportion to the engineering work already taken.
It is submitted that Corporation is not guilty of non-fulfillment of the
B conditions and no !lrohibitive action is called for.
So far as the safety aspects of the dam are concerned, reliance is
placed on the technical opinion of the exoerts, which says that a rock fill
dam does not require three-dimensional studies to estimate its safety
against earthquake. It is submitted that such computer based theree-
C dimensional studies have been found to be only of theoretical value. Two-
dimensional test already done fully ensures safety of the "dam against an
earthquake even up to 7 on Richter Scale. It is submitted that the two-
dimensional studies of the dam is made on an assumption that the impact
of earthquake of 7 or more Richter Scale would be unifonn throughout the
D length and breadth of the dam. The experts have found such two-
dimensional studies sufficient for the safety of the dam. Suggestion of only
one of the experts for conducting a three-dimensional test only by way of
an abundant caution has been found by the team of experts neither feasible
nor desirable.

E Attempt has also been made by filing item-wise comments that
various recommendations of Hanumantha Rao Committee were in-depth
gone into by Inter-Departmental Committee and most of the
recommendations except a few have been accepted and also substantially
implemented in proportion to the construction work already undertaken.
F
On behalf of the Corporation, a categorical statement has been made
that until all the conditions for the clearance are not fulfilled, Tunnel Nos.
3 & 4 shall not be opened and the reservoir shall not be filled beyond its
present water level. People presently living in the catchment area in Tehri
town would not be evacuated till they are paid either cash compensation
G or land in lieu thereof, with shelter. The Corporation has also presented
before us in the course of hearing Status Report of fulfillment of the various
conditions at the project site up to 31.01.2003.

The project for construction of large dams has been undertaken to
H provide electricity and irrigation facilities. From environmental and social
N.D. JAYAL v. U.0.1. [DHARMADHIKARI, J.] 213
prospective, large dams raise variety of issues. They entail massive A
incursions into natural eco-system and human settlements. When the
project is undertaken, it is asserted that these incursions can be minimised
by appropriate steps like Environmental Impact Assesssment and preventive/
ameliorative measures. It is with this porpose that the Environmental Act
and rules require the project to ·take care of the adverse impact on B
environment and human population. Environmental clearance now is a
legal requirement. A machanism has also been evolved for evalution of
the environmental impact and its monitoring. Construction of large dams
are accompanied by significant alterations in the up-stream and the down-
stream, physical and biological environment. For building reservoirs, large C
track of forest lands get submerged. Water logging and salinasation affect
the canal irrigated land with varying degrees of severity. Several species
of wild animals and plants become extinct. There is a likelihood of several
diseases like Malaria spreading.

On the positive side, the alleviation of water scarcity leads to D
improvement in the health standard of people and reduction in diseases
caused by shortage of potable water. Barren lands become green. New
habitats are created for water birds.

In order to take care of the negative aspects of the large dams, the E
conditions for clearance generally require:-

I. Compensatory afforestation.
2. Treatment of catchment area to prevent prematured silt in
other aspects.
3. Measures to prevent or minimise water logging and
F
salinasation in the command area and around the reservoir.
4. Measures to prevent and minimise impact on health.
5. Safeguards against ill effects to the seismicity.
6. Ways of saving translocated wild plants and animals. G
7. Proving alternative fules to project labour and ladders for
migrant fish to cross over the dam.

The Tehri Dam Project has obtaind a clearance and a major portion
of the dam has already been constructed. The catchment area has not been H
214 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A filled with water as the two diversion channels having gates have not been
closed for filling the dam. This is the right stage when there is necessity
of close monitoring, evaluation and reappraisal of work to ascertain
compliance of the conditions and check adverse impact on environment as
also ensure rehabilitation of the people displaced from the dam area and
B the old Tehri town. In the instant case, the Corpration claims that it has
fulfilled the conditions parri passu with the engineering works. This high
claim is with the admission that the time Schedule in the condition of
clearance has not been kept up. This is the proper stage when a thorough
assessment by a team of experts in relevant branches is required to be
undertaken for ascertaining whether the conditions of clearance have been
C fulfilled pari passu with the engineering works. If this is not done before
the dam is allowed to be filled, adverse impact caused on environment
would be irreversible and would not be compensated because of the severe
scale of the ecological intervention. The mistake that might have been done
in the past with regard to other similar large and small dams should not
D be allowed to be repeated in the Tehri Dam Project which is different from
other dam Projects in plains. Tehri dam being located in the Himalayas the
adverse environmental impact would both be up-stream and down-stream.
Meticulous care and precaution, therefore, is required to be taken for a dam
which is being constructed on a high altitude area posing threat to down-
E stream population. If the safety aspects are not fully taken care of and the
command area treatment is not done to the desired level or standard, the
consequence may be catastrophic and beyond repair.

Only two aspects, in my considered opinion, need special attention
F and consequent directions by this Court to the concerned authorities
represented through the respondents in this case.

J. Safety aspect of the Dam:

Tehri Dam have been cleared for construction in a seismically,
G unstable, earthquake prone area in the valley of Himalayas.

The project was earlier not cleared on the opinion of the experts as
a severe earthquake could burst the dam and destroy several important
temples, towns and holy places like Rishikesh and Haridwar. There are
H other thickly populated towns and villages down stream. The members of
N.D. JAYAL v. U.0.1. [DHARMADHIKARI, J.] 215
the Environmental Appraisal Committee (EAC) which has an expert body A
within the Ministry of Environmental amd Forest had earlier unanimously
concluded that the Tehri project diC: not merit environment clearance and
should be abandoned. Thereafter, a Committee of Secretaries of concerned
Departments was constituted which did not agree with the EAC's
recommendati0ns. A dissenting note was submitted by expert Dr. V.K. B
Gaur to the Committee of Secretaries. The Committee then assigned
reassessment of the task of safety to the department of mines. Professor
Jai Krishna an earthquake engineer but not a seismologist opined in favour
of the project. The foreign expert Professor James D. Brune was a
seismologist who did not favour the project due to safety aspect involved. C
On safety aspects the matter was brought to this Court in case reported
in Tehri Bandh Virodhi Sangarsh Samiti and Ors. v. State of U.P. & Ors.,
[I 992] (supp) I SCC 44 by environmentalists. This Court while refusing
to interfere with the matter went by the opinion of Earthquake Engineer
Professor Jai Krishna. In his own language, "The design of the Tehri Dam D
as suggested by Indian and Soviet experts was quiet safe against the
strongest earthquake in the region".

The petitioners in this case on the basis of expert's opinion of
Professor Jai Krishna and foreign expert James D. Brune submitted that
as an extra precautionary measure 3-D Non-Linear Analysis of the dam E
should be undertaken to evaluate its performance against the maximum
possible earthquake. A simulated Dam Break Analysis (OBA) has also
been suggested by the four experts as a matter of abundant caution.

On behalf of the respondents the counsel separately appearing for F
different departments and the project authorities have taken uniform stand
that 3-D Non-Linear Analysis is neither essential nor feasible for_ want of
necessary competent expertise in India and even abroad. It has also been
argued that challenge to Si:!fety aspects have been negatived in the earlier
decision of this Court rendered in 1992 and the project was allowed to go G
ahead and by now has progressed to a very large extent.

On the safety aspect of the dam particularly when the location of the
dam is in a highly earthquake prone zone in the valleys of Himalayas, all
additional safeguards are required to be undertaken on the 'precautionary
principle' as contained in 'the RIO Declaration on Environment and H
216 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A Development' taken in the United Nation conference held in January 1992
to which India is a party. The precautionary principle in RIO declaration
reads:

"In order to protect the environment, the precautionary approach
shall be widely applied by State accordingly to their capabilities.
B Where there are threats of series of reversible damage lack offull
scientific certainty shall not be used as a reason for postponing
cost effective measures to prevent environment degradation"
[Emphasis supplied}

C The precautionary principle accepted by India being a party and
significatory to international agreement and understandings in the field of
environment has become part of domestic law i.e. Environmental (Protection)
Act. The Governmental authorities in India cannot be permitted to set up
plea of scientific uncertainty of 3-D Non-Linear Analysis of the dam. On
D the safety aspect the pleas like res judicata based on earlier decision of
this. Court cannot be allowed to be raised when further developments and
events in the course of the project require further precautions to be taken
before filling the dam to the optimum capacity. It is not the casse of the
respondents that 3-D Non-Linear Analysis of the dam cannot be undertaken
with the assistance of foreign experts on the subject. To take care of all
E eventualities of damage to dam by earthquake, 3-D Non-Linear Analysis
of the dam suggested by four experts as a matter of abundant caution must
be undertaken. It is only after 3-D Non-Linear Analysis of the dam is
completed and the opinion of the experts on the safety aspect is again
sought that further impoundment of the dam should be allowed. In M. C.
F Mehta v. Union ofIndia (Trapezium matter), [1997] 2 SCC 353 this Court
has applied 'Polluter pays principle' and 'Precautionary principle' of
International law as law of the land of this country, India being party to
the United Nation Conference and signatory to International Declarations
and Agreements.
G Requirement of the provisions of the Act and the conditional clearance

Before taking up the rehabilitation aspect for issuing necessary
directions it is required to be stated that in accordance with the provisions
of Section 3 of Environment Protection Act, 1986 and Rule 5 of the
H Environmental Rules 1986, the Tehri Dam Project was granted conditional
N.D. JAYAL v. U.O.l. [DHARMADHIKARI, J.] 217

clearance. A notification dated 27th January, 1994 has been issued under A
the Act and the rules on Environmental Impact Assessment of Development
Preflect. Under the said notification an Environmental Impact Assessment
is required to be made by the Impact Assessment Agency. Without a proper
environmental impact assessment no project can be accorded environmental
clearance. In the present case the environmental clearance was given on B
19. 7. I 990 before the issuance of the notification on 27th January, I 994 on
the Environmental Impact Assessment of Development Project. Nonetheless,
the directions and guidelines contained in the said notification have to be
applied even to the existing dam projects and a strict monitoring of the
Impact of the project of the environment has to be done by the Central
Government through its Ministry of Environment and Forests. The clearance C
to the project was given in the year I 990 on amongst others the following
specific condition "completion of status, formulation of action plans and
their implementation will be scheduled in such a way that their execution
is pari passu failing which the works could be brought to a halt". This
condition was enforceable under the provisions of Environment (Protection) D
Act, 1986.

The letter of the Secretary of Ministry of Environment and Forest to
the Secretary Ministry of Labour dated 12.4.1991 clearly shows failure on
the part ofTehri Haydel Development Corporation (THDC) to comply with E
the conditions granted for environment clearance. The Ministry has
expressed total dissatisfaction on the compliance. The petitioners gave a
notice under Section 19(b) of the Act on 5.9.1991 to the Authorities
pointing out that non-fulfillment of the conditions provided in the
environment clearance within the stipulated time-frame has resulted in
lapse of said clearance and the work of project should be stopped forthwith. F
On 20.10.1991 earthquake of 6.6 on ritchter scale hit Uttarkashi causing
immense destruction of property and life. The uncompleted dam also
suffered trauma but no damage was reported. Even during pendency of this
petition successive earthquakes shook Uttranchal regions in the vicinity of
dam site. Thereafter, the petitioners had been constantly writing to the G
authorities that for want' of non-fulfillment of the conditional clearance the
project construction work should be stopped. There is on record a note
dated 21.10.1994 of Additional Director of Ministry of Environment
recording that although the environment clearance was granted to the
project in the year 1990, 'the status of implementation of various safeguard H
218 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A measures were lagging far behind'. It was also pointed out in the note of
the Director that there was an urgent need 'to evolve a monitoring
mechanism for the Tehri Dam Project'.

Where the requirements of law as contained in the Act, the Rules and
B the notification issued thereunder contemplate imposition of conditions for
clearance to a project to minimise its adverse impact on environment, the
Authorities granting such clearance possess a power couple with duty and
obligation to ensure fulfillment of the conditions on the basis of which the
environmental clearance is granted. We are sorry to note that in the face
of so may conflicting expert opinions on the project undertaken in a highly
C earthquake prone region the conditional environmental clearance was
granted without monitoring the work of the project to ensure fulfillment
of those conditions.

A strict vigil on fulfillment of the conditions of environmental
D clearance was required by the Ministry of Environment and Forest and
stringent action should have been taken against the Authorities for not
adhering to pari passu condition of clearance. In the latest affidavit filed
by the Ministry of Environment and Forest it is promised that in future
strict monitoring of the fulfillment of the conditions granted for environment
clearance would be done. Granting a conditional clearance is not a mere
E formality. The power to grant clearance even though with conditions was
accompanied by duty on the part of the Ministry to have effective check
on the progress of project and ensure fulfillment of the conditions in
accordance with pari passu clause. Since the Ministry of Environment and
Forest has failed to discharge its duty of exercising proper check on the
F fulfillment of pari passu clause of conditional clearance, it is necessary to
provide an independent mechanism through a forum of inter-departmental
authorities and experts so that the project presently undertaken by the
Corporation which the aid, asistance and finances provided by the States,
Central Goverment and the World Bank is allowed to progress and be
G completed strictly on fulfillment of the conditions on which environmental
clearance was granted.

2. Rehabilitation aspect

The Ministry of Environment and Forests has filed an affidavit before
H us showing the present position of progress in resettlement and rehabilitation
N.D. JAYAL v. U.O.l. [DHARMADHIKARI, J.] 219

activities undertaken as part of fullfillment of the conditional clearance of A
the project. It may be recalled that the Ministry of Welfare of Government

- of India in the year 1985 initiated a Rehabilitation Policy. It came to be
approved only in the year 1997. Thus the National policy, Packages
and Guidelines for resettlement and rehabilitation accept the following
principles :- B
1. Displacement should be minimised. So people displacing projects
should be the last option after studying non-displacing and least displacing
projects, and if this is the only alternative.

2. The public purpose based on which people are displaced or C
otherwise deprived of their livelihood should be defined. Prior informed
consent to be affected by it should be mandatory after the project is
explained to them and if they see that is according to the public purpose
thus defined properly.
D
3. Replacement value to be the norm for compensation, against the
present norm of market value which is totally inadequate.

4. Right to life with dignity enshrined in Article 21 of the Constitution
should be respected. So, the displaced persons should have a better lifestyle E
after displacement than before it because they are paying the price of
national development.

5. Displaced Persons (DPs/PAPs) should be the first beneficiaries of
any project.
F
6. Rehabilitation is mandatory and should go on side by side with the
project.

7. Land for land is recommended to all and is mandatory for tribals.
Compensation is to be provided for common property resources and forest G
lands that may be acquired from their dependants.

8. The DPs/PAPs are defined in a way as to include not only land
onwers but also those who depend on it without owning it, and those who
have common property resources as their sustenance.
H
220 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A This Court in the case of Karjan Jalasay Yojana Assargrasth Shakhar
Ane Snagharsh Samiti v. State of Gujarat. AIR (1987) SC 532 has held
thus:

"Simultaneously with taking possession of the acquired land from
any person in occupation of it, such person shall be provided
B either alternative land of equal quality but not exceeding three
acres in areaand ifthat is not possible, then alternative employment
where he woud be assured a minimum wage ...... No possession
of any part of the acquired land shall be taken from any person
unless and until he is either provided with alternative land or
c alternative employment which is not tern porary in character so
that he and the members of his family do not remain without
means of subsistance ... if for any reason the State Government is
not able to provide alternative land or arrange for alternative
employment, the State Government will subject to the same
D exception, pay to the head of the family at the latter place of
residence compensation equivalent to minimum wage every
fortnight during the period alternative land or employment is not
provided."

E The above directions of this Court in the case of Karjan Jalasay
(supra) were based on the factual realities that for most marginal farmers
and tribals monetary compensation for acquisition of land can never be
sustainable source of dignified living. A new piece of alternative land of
equal quality should be given to those dispossessed from land due to
F acquisition for public purpose. In the last affidavit submitted by Ministry
of Environment and Forests before us to show the status of the progress
of rehabilitation ..... as on 3rd February, 2003, the figures disclose that out
of total 9,239 rural affected families cash compensation is not paid to 1,948
families and 260 families affected by Koteshwar Dam have also not
received cash compensation.
G
For providing agricultural land to farmers who have been ousted it
is stated that land is being acquired down the valley in the vicinity of
Dehradun city. The Government has thus been involved in exercise of
rehabilitating the dam oustees on acquired land from other land holders
H who in tum will have to be ousted. This will give rise to chain reaction
N.D. JAY AL V. U.0.l. [DHARMADHIKARI, J.] 221

of making other people landless. The process has not yet been completed A
and according to the affidavit of the Ministry itself the work of resettlement
and rehabilitation is underway.

When natural resources are exploited in a big way for big projects
by State with all sincerity and good intentions for general common benefit, B
social conflicts arise as a natural adverse consequence. Generally the
conflicts arise between marginal farmers, peasants and other landless
persons who survive on natural resources and those who are better off, rich
or affluent and who desire to undertake agriculture and industry. When
river projects for dams are undertaken to generate electricity and improve
irrigation facilities, conflicts arise between people living up-stream who C
have to necessarily lose their source of living and habitat and those living
down-stream who need water and electricity for their homes, industries and
agricultural fields. When such social conflicts between different social
groups i.e. up-stream population and down-stream population, between
rural population and urban population, between poor surviving on natural D
resources and others needing natural resources for further development
arise what should be the duty and priorities of the State and its authorities
who have undertaken the projects? When such . social conflicts arise
between poor and more needy on one side and rich or affluent or less needy
on the other, prior attention has to be paid to the former group which is E
both financially and politically weak. Such less advantaged group is
expected to be given prior attention by Welfare State like ours which is
committed and obliged by the Constitution, particularly by its provisions
contained in the Preamble, Fundamental rights, Fundamental duties and
Directive Principles, to take care of such deprived sections of people who F
are likely to lose their home and source of livelihood.

Mistakes in resettlement and rehabilitation of people ousted by other
similar Projects committed in the past have to be avoided. The construction
of dam cannot be allowed to proceed and be completed leaving the oustees
~~~ G
The oustees of Tehri Dam Project who are used to valley life in
Himalayas are proposed to be resettled and rehabilitated in newly built
Tehri Town and those depending on forest and agriculture and proposed
to be given cash compenation or land down-stream near Dehradun city. H
222 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A The Ministry of Environment and Forests (MoEF) in their last affidavit has
given a status report to show that resettlement work is in progress but not
completed. In the affidavit it is promised as under :
..
"The Project authority shall ensure that prior to closing of diversion
turnnels Tl/T2 for impoundment of the Reservoir; evacuation, resettlement
B and rehabilitation are completed in all respects. In addition, the catchment
area and treatment of direct draining areas etc. shall be completed. The
Project Authority shall obtain clearance from MoEF before closing the
outlet at EL 700 m ."

C The RIO declaration of environment and development in the United
Nations' Conference held in June 1992 to which India was a party and
signatory and on which the Environment Protection Act, its Rules and
Policies are modeled, obligates the Authorities oflndia by the norms fixed
in International and Domestic Law that "the environmental and natural
D resources of people under operation, domination and occupation shall be
protected." A mention has already been made above of the !ates rehabilitation
policy framed by the Government of India and relevant part has been
quoted. These legal and policy obligations are enforceable against the
State.

E In my considered option, therefoe, the present status of dam project,
keeping in view the pari passu condition on which "environmental
clearance" has been granted by MoEF, calls for issuing following directions
to the respondents who represent various Ministries & departments of
Central and State Government as also the Corporation to which the project
F has been entrusted for implementation.

(I) The Central Government in terms of the recommendations of
Expert Committee for Environmental Impact Assessment as contained in
Schedule III of the Notification dated 27th January, 1994 issued in exercise
of powers under sub-section (i) and Cl.V of sub-section (2) of Section 3
G of Environment (Portection) Act, 1986 read with Cl.(f) of sub-Rule (3) of
Rule 5 of Environment (Protection) Act, 1986 shall constitute a Committee
of Expertrs and representatives ofNGOs (if not already constituted) for the
purpose of investigating, ascertaining and reporting whether the pari passu
condition laid down in the environment clearance of the Project have been
JI fulfilled or not by the authorites of the Project. The aforesaid committee
N.D. JA YAL v. U.0.1. [DHARMADHIKARI, J.] 223
will inspect and report on the status of the work to the Central Government A
every three months and in case the conditions, as laid down in the
clearance, are not fulfilled recommend the remedial or corrective measures/
'
• actions .

(2) To take care of the safety aspect,until 3-D Non-Linear Analysis B
and Dam Break Analysis are completed as recommended by the Committee
on safety and the result assessed by the aforesaid Expert Committee is
submitted to the Central Government, diversion tunnels TIIT2 for
impoundment of the Reservoir shall not be closed.

(3) The Expert Committee for environment Impact Assessment C
constituted under Schedule III of Notification dated 27th January 1994 will
also look into and submit status report on the progress of resettlement and
rehabilitation measures. There will be no impoundment of the Reservoir
untill resettlement and rehabilitation work is fully completed in all respects.
D
(4) An effective Grievance Redressal Cell headed by an independent
expert in the field of social science shall be set up by the State Government
with the help of Central Government for solving rehabilitation and
resettlement problems of the oustees of the Project. The Grievance
Redressal Cell shall submit its status report every three months to the
Expert Committee constituted under Schedule III of the notification E
(supra).

This writ petition succeeds to the extent of directions made above.

All connected matters and applications also stand disposed of. The p
petitioners shall be entitled to all costs incurred by them in prosecuting
these petitions in public interest from the respondents who will share them
in equal proportion.

S.M. Petition/Transferred cases
disposed of. G