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

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

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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 the Press that it has cleared the project after a thorough assessment of the impact of the project on environment and after satisfying themselves that the adverse impact on environment can be remedied. A general agreement was signed in Moscow and it was decided that the dam construction would be carried out jointly by Soviet and Indian Engineers. Thereafter, the project, which was initially executed by the Irrigation Department of the

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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 pari-passu with the construction, failing which the engineering works would be brought to a halt and this condition will be enforced among others under the provisions of the Environment Protection Act, 1986.

The petitioners raised the question before us that when a decision had been taken in 1990 to abandon the project as to how clearance could be given on July 19, 1990? Again they pointed out that on 21.10.1994 serious consequences of the implementation lagging behind was taken note of but the project was allowed to continue.

From the narration of various events set out earlier, it is clear that even by August 1986 an expenditure of Rs.206 crores had been incurred for the construction of the dam. It is after the THDC Action Plans for consideration and assessment by MoEF have been submitted. These were considered on two occasions: firstly, in February 1990 and again on July 19, 1990 and it is thereafter the conditional clearance was given. It is contended that the environmental clearance which was granted on July 19, 1990 is without proper application of mind and, therefore, the dam construction should not be allowed to proceed. The law on this aspect has been clearly set out in the decision of this Court in Narmada Bachao 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

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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 also been examined by this Court in Sardar Sarovar Project's case. It has been noticed therein that there are three stages with regard to the undertaking of an infrastructural project - the first of which is the conception or planning, second is decision to undertake the project and the third is the execution of the project. The conception and the decision to undertake a project has to be regarded as a policy decision.

In Sardar Sarovar Project case it was also held that when two or more options are possible and the Government takes a policy decision it is then not a function of the Court to re-examine the matter by way of appeal. 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 execution of the project and such a system cannot be said to be arbitrary, then the only re , which the Court has to play is to ensure that the system works in the manner it was envisaged. It is made clear in that decision that the questions whether to have an infrastructual project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. However, a note of caution was struck that the Courts have a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights as guaranteed under the Constitution are not transgressed upon except to the extent permissible under the Constitution. When a law has been enacted in relation to the

N.D. JAYAL v. U.0.1. [RAJENDRA BABU, J.] 165 protection of environment and such law is being given effect to and there is no challenge to such law, the duty of the Courts would be to see that the Government and other respondents act in accordance with law and there is no other obligation for the Court to examine further in the matter. We respectfully agree with the view expressed in the Sardar Sarovar project's case and apply the same to the facts arising in this/ case. 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 has to be examined on the project as a whole and at the same time it should also be noticed that the construction of a dam would result in multifold improvement in the environment of the areas where the canal waters will reach. The benefits which have been reaped by the people all over India with the construction of the dams are too well-known and, therefore, the Government cannot be faulted for deciding to construct the high dam on river Tehri with a view to provide water and electricity in the area as was the decision in the Sardar Sarovar project's case also. In such situations, displacement of people residing in the proposed project sites and the areas to be submerged is an important issue. Therefore, a properly drafted relief and rehabilitation plan is absolutely required and the Government was also conscious of this particular fact. It, therefore, not only examined this matter on several occasions but also constituted an Expert Committee on

17. 7.1996 to examine the environmental and rehabilitation aspects. Several times the matter was examined by the Government at different stages and follow up action plans also were actively considered by the Government. 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

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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 vulnerability of the entire Himalayan region. By way of abundant caution they want the concerned authorities to conduct Three-Dimensional (3D) Non-Linear Test to evaluate the earthquake susceptibilitY of the dam against the Maximum Credible Earthquake. They also insist upon the computer simulated Dam Break Analysis to estimate the magnitude of damages in the unexpected eventuality of any dam failure. The respondents submitted that they explored the possibility of such tests and arrived at a conclusion that such tests are neither practical nor necessary in the present case.

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 chosen for Tehri are the safest man-made structures in earthquake prone zones due to their large inertia, high damping and high flexibility; that the dam fill material is being compacted to concrete like density, which provides high strength while retaining the flexibility; that relatively flat slopes have been adopted for up-stream and down stream of the dam, which are flatter than the slopes provided in some recent high dams built/ planned in regions of similar high seismicity; that, therefore, the Tehri Dam is a fail-safe structure and the design has been found safe against the worst earthquake scenario of the area, even when very conservative and severe seismic parameters were assumed for these tests. A high level Committee 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 examine issues concerning safety of the dam. The Committee in its report

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established that even in the worst scenario of possible occurrence of a large magnitude earthquake of 8+ in richter scale with the probable location at a depth of 15 km below the dam site, the same would be safe. They concluded that dam design is safe and added that all danger arising out of the seismicity have been taken note of and taken care of in the planning · of Tehri Dam project. 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

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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 necessary exercises at their own decided parameters and methods. The Group also considered the International Commission on Large Dams Guidelines on Earthquake Analysis Procedure for Dams and Seismicity and Dam Design. Based on these materials the Group of Experts finally submitted the report on 18.2.1998. They concluded that the ''present design of the Dam is expected to be structurally safe to withstand the maximum credible earthquake during the economic performance life of the dam-reservoir system. " The Group of Experts was unanimous in their recommendation as stated above. However, as a matter of abundant caution, four Experts suggested (i) 3-D Non-Linear analysis of the Dam to evaluate its performance against the maximum credible earthquake and 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 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 carrying out the work recommended by way of abundant caution to the National Committee on Seismic Design Parameters which is a standing technical committee and it furnished its views. In addition, plethora of material has been placed by way of various text books and studies carried out by other agencies. We think that it is neither feasible nor proper for us to delve into these details. The Government of India, after considering the views thereof, finally decided that there was no necessity to undertake the work recommended further by the Four Experts by way of abundant caution and clearance to the project was given.

In Tehri Bandh Virodhi Sangarsh Samiti vs. State of UP, [ 1992] Supp. H I sec 44, the grant of clearance on July 19, 1990 was called in question

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before this Court in a writ petition and this Court examined the safety aspects which were brought to the notice of the court and it was held that the clearance given was not as a result of non-application of mind by the Government on safety and ~nvironmental aspects and it -.yas particularly examined with reference to the fact that site of the proj~ct is being within the earthquake prone zone and this Court, after specific examination of the record observed that the project was considered by the Environmental Appraisal Committee of MoEF, Committee of Secretaries, High Level Committee comprising experts of scientific and specialised organisations and also by a renowned expert of international repute and, therefore, the Government considered the question of safety of the project from various details more than once and on being satisfied with the reports of the experts gave clearance to the project. In those circumstances, this Court thought fit not to interfere with the same.

This Court dealt with the safety concerns and held that : 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

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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 opinion. It was clearly of the view that the last Committee was unanimous that the Tehri Dam to be constructed is safe but the advice based on abundant caution was not accepted. As a result, we need not re-examine the safety aspects of the dam.

This Court cannot sit in judgment over the cutting edge of scientific analysis relating to the safety of any project. Experts in science may themselves differ in their opinions while taking decisions on matters related to safety and allied aspects. The opposing viewpoints of the experts will also have to be given due consideration after full application of mind. When the Government or the concerned authorities after due consideration of all viewpoints and full application of mind took a decision, then it is not appropriate for the Court to interfere. Such matters must be left to the mature wisdom of the Government or the implementing agency. It is their forte. In such cases, if the situation demands, the Courts should take only a detached decision based on the pattern of the well-settled principles of administrative law. If any such decision is based on irrelevant consideration or non-consideration of material or is thoroughly arbitrary, then the Court will get in the way. Here the only point to consider is whether the decision- making agency took a well-informed decision or not. If the answer is 'yes', then there is no need to interfere. The consideration in such cases is in the process of decision and not in its merits. 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 made to a specialised technical/expert body and not merely decide the matter on well known principles of administrative law of court not re- examining the matter if all relevant considerations have been taken note of. In the present case when once a decision had been given by this Court on safety aspects on an earlier occasion and thereafter the matter was again examined by the Government through different agencies and had taken a

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 should be relevant or not, we do not think, we can sit in judgment over such decision, particularly when there is no difference of opinion among the Experts as to the safety of the dam. It is only by way of abundant caution such studies were suggested by four out of five experts. Thus the usefulness or necessity thereof itself being in doubt, as expressed in various reports, and text books relied on by either side, the principle stated in A.P. Pollution Control Board's case (supra) cannot be applied. In that decision it was noticed that inadequacies of science had led to the precautionary principle leading to the principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed on those who want to change the present state of affairs. After detailed consideration of this decision, it is held in Narmada Bachao 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 the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not know. When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology or environmental of setting up of an industry is know, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to offset the same. Merely because there will be a change is no reason to presume that there will be an ecological disaster. It is when the effect of the project is known that the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.

In the present case, we are not concerned with the polluting industry which is being established. What is being constructed H

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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 could only be maintained by strictly following the principle of' sustainable development.' This is a development strategy that caters the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environmental related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by the strict adherence of sustainable development without which life of coming generations will be in jeopardy. 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.

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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

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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

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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

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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 to be executed before impoundment commences. • 3.5. Water Quality Maintenance

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

(b) The THDC will initiate a water quality modeling study to formulate the measures needed to preserve the water quality and prepare an action plan to implement the measures recommended by such a study. " 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 .

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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

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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 within the stipulated time frame has resulted in the lapse of the said clearance and, therefore, the work of the project should be stopped immediately. It is on the basis of these communications it is contended that as to why decision to continue the project was taken on 21.10.1994 even though the consequence was disastrous as the implementation was lagging behind.

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

ENVIRONMENTAL TARGET STATUS 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

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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

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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 alia, enumerated certain studies which were to be carried out and based on their findings, action plans had to be drawn up for execution pari-passu with the construction of the project. It is also pointed out that all the required studies had been completed and their reports submitted to the MoEF and these studies indicated that no environmental damage would be caused by the construction of the project which cannot be remedied by adoption of appropriate measures and for this purpose, action plans wherever called for have been and are being fonnulated for environmental upgradation. It is further pointed out that implementation of the project and the action being taken in regard to environmental concerns at the cost of the project would lead to improvement in the existing environment/ 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

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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 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 rate or pace, with simultaneous progress, proportionately etc. This term is generally used in the context of creditors who, in marshalling assets, are entitled to receive out of the some fund without any precedence over each other. Any way, the required application of its meaning in the background of the present case is clear. The works, which are fixed up as conditions attached to the clearance, will have to be carried out simultaneously with the engineering works. So by the time the engineering works finishes, the conditions should also have been fulfilled.

Environmental Conditions

Catchment Area Treatment: 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 the responsibility of treatment of degraded areas of 'high' and 'very high' erodability to the THDC. At the same time the State Government has to formulate separate plans for the treatment of 'medium' and' low' categories of erosion. On principle the Union accepts to treat the entire degraded catchment of all categories. The treatment of entire catchment of high and very high erodability classification has to be completed pari passu with the

N.D. 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 recommendations of the HRC is that the project authorities should strive to complete as far as possible the treatment of the entire catchment of high and very high erodability classification pari-passu with the construction of the project so as to be completed before commissioning of the project and it would be ensured that all direct draining areas of high and very high erodability must be completed before the ensuing monsoons and the present status of the coverage under this category is as follows :

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

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

In regard to flora and fauna, the study conducted by various agencies has brought out that no rare species come under submergence of the reservoir and that there is no adverse impact on the fauna of the dam except in case of Mahseer Fish. Study reports by BS! and ZS! were submitted to the MoEF along with plans for protection/propagation of Mahseer Fish recommended by the ZS! and BS! had also recommended certain species to be planted which is being done by the State Forest Department as a part of CAT Programme. Action plan for preservation of Mahseer has been entrusted by THDC for implementation to the National Research Centre on Cold Water Fisheries, Bhimtal. A Botanical Garden in an area of 14.28 hectares is also under implementation by the Uttaranchal State Forest Department near the reservoir and about 50% of its work is completed. It is also submitted that the site development work is completed' and induced artificial breeding work will be completed by March 2004.

Wa/er Quality Maintenance :

At the threshold itself HRC observed that it is not in a position to go into the correctness of the scientific conclusions of various bodies on the H

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

Bhagirathi Basin Management Authority

MoEF decides to link the clearance of the Tehri project with development of Bhagirathi Basin. This is aimed in the larger interest of protecting the environment of the entire region. Development ofBhagirathi Basin therefore is very important in the context of this case.

The Government ofU.P. had constituted the authority initially by an executive order, Bhagirathi River Valley Authority. Subsequently, Bhagirathi Basin Management Authority has been constituted on a statutory basis by a notification issued on 24.3.1999. Plan for greenbelt development along the rim of reservoir 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.

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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 and sustainable development of the area. If these aspects are not complied with, the human life and whole Himalayan environment will be the casualty. Only its strict compliance could maintain the ecological balance.

Disaster Management :

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

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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

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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 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 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

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think that it would be appropriate to hold that the extent of land recommended by HRC is inadequate or insufficient. Such recommendation has been made by HRC after due deliberation in the matter on the availability of the land in the region, the life style of the persons affected, their needs and other relevant factors in this regard. Above all, the project is being carried out in a hilly area where land is very scarce. In such circumstances, we do not think any comparison can be drawn between Sardar Sarovar Project and Tehri Project. Hence we reject this contention raised on behalf of the petitioners. 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 unmarried daughters who have attained the age of 21 years on the prescribed date. It is urged that 18 years should have been taken as the age for such classification and not 21 years. These matters are in the realm of decision of the recommendatory body and the Government. If the Government had chosen any other age, we could not have held it to be irrational. The contention that voting rights to citizens had been given even :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 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

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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 already shifted in the past to the resettlement colonies from their earlier settlements would be eligible to receive payment of an ex-gratia amount equivalent to 750 times the minimum agricultural wage which at current rates is Rs.33,000 per person. These are matters of policy and when the Government takes such a decision bearing in mind several aspects, we do not think this Court should interfere with the same.

In cases where families have not been shifted or given rehabilitation benefits for newly recognised additional families, HRC recommended that only cash be paid instead of land for same reasons and also recommended a residential plot be given measuring 200 sq.mt. in a rural rehabilitation centre or cost will be given to each major married son. The existing scheme for grant of interest subsidy on loan for construction of house is recommended. The Government accepted the same and stated that it shall be the responsibility of the State Administration based on the census, voters' lists, and if necessary, separate house to house survey may be conducted and that additional family members of the landless agricultural labourers as on 19. 7.1990 would also be eligible to receive the recommended ex-gratia amount as for the fully affected land owner families. The identification of agricultural landless labourers and their additional family members shall be decided by State Administration. The recommendation for allotting 200 sq.m. residential land or cash in lieu thereof, to each

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 exception can be taken to the decision of the Government.

The villages were identified by HRC as fully affected where 75% or more families are fully affected. HRC recommended that in the partially affected villages [where less than 75% families are fully affected], the fully affected families will have the option of resettling else where with rehabilitation provisions or remain in the unaffected part of the village. The families that remain there will be allotted land on pattas from the left over surplus land. The Government accepted the recommendations as to the categorisation of the fully and partially affected families and also stated that they would be entitled to rehabilitation benefits as admissible in the existing policy and all additional family members of those families would also be entitled to receive ex-gratia payment 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 entitled to be allotted submerged land on pattas subject to availability during the low reservoir level periods for temporary cultivation admissible under the existing policy. .It is contended on behalf of the petitioners that the practice of allowing cultivation in submerged land during low reservoir level periods leads to enhanced siltation of reservoir and, therefore, should be discouraged. The view taken by the Government is that even after accepting the recommendations made by HRC a condition is imposed that during the low reservoir level periods, land should be given for temporary cultivation not otherwise. Therefore, it cannot be said that such a condition is unreasonable. 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

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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 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 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 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 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 possible in selecting the rehabilitation centres.

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

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

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

"RURAL DISPLACED FAMILIES 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