IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 319 OF 1994
Narmada Bachao Andolan …….Petitioner
Versus
Union of India & Others …..Respondents
with
C.A. No. 6014/1994 W.P.(C) Nos. 345/94, 104/1997, S.L.P. (C) No. 3608/1985 & T.C.(C) No. 35 of 19995
J U D G M E N T
KIRPAL, J.
Narmada is the fifth largest river in India and largest West flowing river of the Indian Peninsula. Its annual flow approximates to the combined flow of the rivers of Sutlej, Beas and Ravi. Originating from the Maikala ranges at Amarkantak in Madhya Pradesh, it flows Westwards over a length of about 1312 km, before draining into the Gulf of Cambay, 50 km. West of Bharuch City. The first 1077 km. Stretch is in Madhya Pradesh and the next 35 km. Stretch forms the boundary between the States of Madhya Pradesh and Maharashtra. Again, the next 39 km. Forms the boundary between Maharashtra and Gujarat and the last stretch of 161 km. lies in Gujarat.
The Basin area of this river is about 1 lac sq. km. The utilisation of this river basin, however, is hardly about 4%. Most of the water of this peninsula river goes into sea. Inspite of the huge potential, there was hardly any development of the Narmada water resources prior to independence.
In 1946, the then Government of Central Provinces and Berar and the then Government of Bombay requested the Central Waterways, Irrigation and Navigation Commission (CWINC) to take up investigations on the Narmada river system from basin wise development of the river with flood control, irrigation, power and extension of navigation as the objectives in view. The study commenced in 1947 and most of the sites were inspected by engineers and geologists who recommended detailed investigation for seven projects. Thereafter in 1948, the Central Ministry of Works, Mines & Power appointed an Ad-hoc Committee headed by Shri A N Khosla, Chairman, CWINC to study the projects and to recommend the priorities. This Ad-hoc Committee recommended as an initial step detailed investigations for the following projects keeping in view the availability of men, materials and resources:
Bargi Project
Tawa Projects near Hoshangabad
Punasa Project and
Broach Project
Based on the recommendations of the aforesaid Ad-hoc Committee, estimates for investigations of the Bargi, Tawa, Punasa (Narmadasagar) and Broach Projects were sanctioned by the Government of India in March, 1949.
The Central Water & Power Commission carried out a study of the hydroelectric potential of the Narmada basin in the year 1955. After the investigations were carried out by the Central Water & Power Commission, the Navagam site was finally decided upon in consultation with the erstwhile Government of Bombay for the construction of the dam. The Central Water & Power Commission forwarded its recommendations to the then Government of Bombay. At that time the implementation was contemplated in two stages. In Stage-I, the Full Reservoir Level (hereinafter referred to as 'FRL') was restricted to 160 ft with provision for wider foundations to enable raising of the dam to 300 ft. in Stage II. A high level canal was envisaged in Stage-II. The erstwhile Bombay Government suggested two modifications, first the FRL of the dam be raised from 300 to 320 ft. in Stage-II and second the provision of a power house in the river bed and a power house at the head of the low level canal be also made. This project was then reviewed by a panel of Consultants appointed by the Ministry of Irrigation and Power who in a report in 1960 suggested that the two stages of the Navagam dam as proposed should be combined into one and the dam be constructed to its final FRL 320 ft. in one stage only. The Consultants also stated that there was scope for extending irrigation from the high level cnala towards the Rann of Kutch.
With the formation of the State of Gujarat on 1st May, 1960, the Narmada Project stood transferred to that State. Accordingly, the Government of Gujarat gave an administrative approval to Stage-I of the Narmada Project in February, 1961. The Project was then inaugerated by late Pandit Jawaharlal Nehru on 5th April, 1961. The preliminary works such as approach roads & bridges, colonies, staff buildings and remaining investigations for dam foundations were soon taken up.
The Gujarat Government undertook surveys for the high level canal in 1961. The submergence area survey of the reservoir enabled assessment of the storage capability of the Navagam reservoir, if its height should be raised beyond FRL 320 ft. The studies indicated that a reservoir with FRL +460 ft. would enable realisation of optimum benefits from the river by utilising the untapped flow below Punasa dam and would make it possible to extend irrigation to a further area of over 20 lakh acres. Accordingly, explorations for locating a more suitable site in the narrower gorge portion were taken in hand and finally in November, 1963, site No. 3 was found to be most suitable on the basis of the recommendations of the Geological Survey of India and also on the basis of exploration and investigations with regard to the foundation as well as construction materials available in the vicinity of the dam site.
In November, 1963, the Union Minister of Irrigation and Power held a meeting with the Chief Ministers of Gujarat and Madhya Pradesh at Bhopal. As a result of the discussions and exchange of views, an agreement (Bhopal Agreement) was arrived. The salient features of the said Agreement were:
That the Navagam Dam should be built to FRL 425 by the Government of Gujarat and its entire benefits were to be enjoyed by the State of Gujarat.
Punasa Dam (Madhya Pradesh) should be built to FRL 850. The costs and benefits of Punasa Power Project shall be shared in the ratio 1:2 between the Governments of Gujarat and Madhya Pradesh. Out of the power available to Madhya Pradesh half of the quantum was to be given to the State of Maharashtra for a period of 25 years for which the State of Maharashtra was to provide a loan to the extent of one-third the cost of Punasa Dam. The loan to be given by the State of Maharashtra was to be returned within a period of 25 years.
Bargi Project was to be implemented by the State of Madhya Pradesh, Bargi Dam was to be built to FRL 1365 in Stage I and FRL 1390 in stage II and the Government of Gujarat were to give a total loan assistance of Rs. 10 crores for the same.
In pursuance of the Bhopal Agreement, the Government of Gujarat prepared a brief project report envisaging the Navagam Dam FRL 425 ft. and submitted the same to the Central Water and Power Commission under Gujarat Government's letter dated 14th February, 1984. Madhya Paradesh, however did not ratify the Bhopal Agreement. In order to overcome the stalemate following the rejection of the Bhopal Agreement by Madhya Pradesh, a High Level Committee of eminent engineers headed by Dr. A.N.Khosla, the then Governor of Orissa, was constituted on 5th September, 1964 by the Government of India. The terms of reference of this Committee were decided by the Government of India in consultation with the States of Madhya Pradesh, Maharashtra and Gujarat. The same read as under:
Drawing up of a Master Plan for the optimum and integrated development of the Narmada water resources.
The phasing of its implementation for maximum development of the resources and other benefits.
The examination, in particular of Navagam and alternative projects, if any, and determining the optimum reservoir level or levels.
Making recommendations of any othe ancillary matters.
The Khosla Committee submitted the unanimous report to the Government of India in September, 1965 and recommended a Master Plan of the Narmada Water Development. In Chapter XI of the said Report, the Khosla Committee outlined its approach to the plan of Narmada Development. An extract from this Chapter is reproduced below:
"11.1 In the meeting from 14th to 18th December, 1964 at which the State representatives were also present, the Committee laid down the following basic guidelines in drawing up the Master Plan for the optimum and integrated development of the Narmada water resources:-
Subject to the provision that suitable apportionment of water between irrigation and power may have to be considered, should it be found that with full development of irrigation, power production is unduly affected;
The Master Plan recommended by the Khosla Committee envisaged 12 major projects to be taken up in Madhya Pradesh and one, viz., Navagam in Gujarat. As far as Navagam Dam is concerned, the Committee recommended as follows:-
The terminal dam should be located at Navagam.
The optimum FRL of the Navagam worked out to RL 500 ft.,
The FSL (Full Supply Level) of the Navagam canal at off-take should be RL 300 ft.,
The installed capacity at the river bed power station and canal power station should be 1000 mw and 240 mw respectively with one stand-by unit in each power station (in other words the total installed capacity at Navagam would be 1400 mw).
The benefits of the Navagam Dam as assessed by the Khosla Committee were as follows:-
"(1) Irrigation of 15.80 lakh hectares (39.4 lakh acres) in Gujarat and 0.4 lakh hectares (1.00 lakh acres) in Rajasthan. In addition, the Narmada waters when fed into the existing Mahi Canal system would release Mahi water to be diverted on higher contours enabling additional irrigation of 1.6 to 2.0 lakh hectares (4 to 5 lakh acres) approximately in Gujarat and 3.04 lakh hectares (7.5 lakh acres) in Rajasthan.
Hydro-power generation of 951 MW at 60% LF in the mean year of development and 511 MW on ultimate development of irrigation in Gujarat, Madhya Pradesh, Maharashtra and Rajasthan."
The Khosla Committee stressed an important point in favour of high Navagam Dam, namely, additional storage. They emphasized that this additional storage will permit greater carryover capacity, increased power production and assured optimum irrigation and flood control and would minimise the wastage of water to the sea. The Khosla Committee also observed that instead of higher Navagam Dam as proposed, if Harinphal or Jalsindhi dams were raised to the same FRL as at Navagam, the submergence would continue to remain about the same because the cultivated and inhabited areas lie mostly above Harinphal while in the intervening 113 km (70 mile) gorge between Harinphal and Navagam, there was very little habitation or cultivated areas.
The Khosla Committee report could not be implemented on account of disagreement among the States. On 6th July, 1968 the State of Gujarat made a complaint to the Government of India under Section 3 of the Inter-State Water Disputes Act, 1956 stating that a water dispute had arisen between the State of Gujarat and the Respondent States of Madhya Pradesh and Maharashtra over the use, distribution and control of the waters of the Inter-State River Narmada. The substance of the allegation was that executive action had been taken by Maharashtra and Madhya Pradesh which had prejudicially affected the State of Gujarat and its inhabitants. The State of Gujarat objected to the proposal of the State of Madhya Pradesh to construct Maheshwar and Harinphal Dams over the river Narmada in its lower reach and also to the agreement reached between the States of Madhya Pradesh and Maharashtra to jointly construct the Jalsindhi Dam over Narmada in its course between the two States. The main reason for the objection was that if these projects were implemented, the same would prejudicially affect the rights and interests of Gujarat State by compelling it to restrict the height of the dam at Navagam to FRL 210 ft. or less. Reducing the height of the dam would mean the permanent detriment of irrigation and power benefits that would be available to the inhabitants of Gujarat and this would also make it impossible for Gujarat to re-claim the desert area in the Ranns of Kutch. According to the State of Gujarat, the principal matters in disputes were as under;
The right of the State of Gujarat to control and use the waters of the Narmada river on well-accepted principles applicable to the use of waters of inter-State rivers;
The right of the State of Gujarat to object to the arrangeement between the State of Madhya Pradesh and the State of Maharashtra for the development of Jalsindhi Dam;
The right of the State of Gujarat to raise the Navagam dam to an optimum height commensurate with the efficient use of Narmada waters including its control for providing requisite cushion for flood control; and
The consequential right of submergence of area in the States of Madhya Pradesh and Maharashtra and areas in the Gujarat State.
Acting under Section 4 of the Inter-State Water Disputes Act, 1956, the Government of India constituted a Tribunal headed by the Hon'ble Mr. Justice V Ramaswamy, a retired Judge of this Court. On the same day, the Government made a reference of the water dispute to the Tribunal. The Reference being in the following terms:
"In exercise of the powers conferred by sub-section (1)of Section 5 of the Inter-State Water Disputes Act, 1956 (33 of 1956), the Central Government hereby refers to the Narmada Water Disputes Tribunal for adjudication of the water dispute regarding the Inter-State river, Narmada, and the river-valley thereof, emerging from letter No. MIP-5565/C-10527-K dated 6th July, 1968, from the Gujarat".
On 16th October, 1969, the Government of India made another reference of certain issues raised by the State of Rajasthan.
The State of Madhya Pradesh filed a Demurrer before the Tribunal stating that the constitution of the Tribunal and reference to it were ultra vires of the Act. The Tribunal framed 24 issues which included the issues relating to the Gujarat having a right to construct a high dam with FRL 530 feet and a canal with FSL 300 feet or thereabouts. Issues 1(a), 1(b), 1(A), 2,3, and 19 were tried as preliminary issues of law and by its decision dated 23rd February, 1972, the said issues were decided against the respondents herein. It was held that the Notification of the Central Government dated 16th October, 1969 referring the matters raised by the State of Rajasthan by its complaint was ultra vires of the Act but constitution of Tribunal and making a reference of the water dispute regarding the Inter-State river Narmada was not ultra vires of the Act and the Tribunal had jurisdiction to decide the dispute referred to it at the instance of State of Gujarat. It further held that the proposed construction of Navagam project involving consequent submergence of portions of territories of Maharashtra and Madhya Pradesh could form the subject matter of a "water dispute" within the meaning of Section 2(c) of the 1956 Act. It also held that it had the jurisdiction to give appropriate direction to Madhya Pradesh and Maharashtra to take steps by way of acquisition or otherwise for making submerged land available to Gujarat in order to enable it to execute the Navagam Project and the Tribunal had the jurisdiction to give consequent directions to Gujarat and other party States regarding payment of compensation to Maharashtra and Madhya Pradesh, for giving them a share in the beneficial use of Navagam dam, and for rehabilitation of displaced persons.
Against the aforesaid judgment of the Tribunal on the preliminary issues, the States of Madhya Pradesh and Rajasthan filed appeals by special leave to this Court and obtained a stay of the proceedings before the Tribunal to a limited extent. This Court directed that the proceedings before the Tribunal should be stayed but discovery, inspection and other miscellaneous proceedings before the Tribunal may go on. The State of Rajasthan was directed to participate in these interlocutory proceedings.
It appears that on 31.7.1972, the Chief Ministers of Madhya Pradesh, Maharashtra, Gujarat and Rajasthan had entered into an agreement to compromise the matters in dispute with the assistance of the Prime Minister of India. This led to a formal agreement dated 12th July, 1974 being arrived at between the Chief Ministers of Madhya Pradesh, Maharashtra and Rajasthan and the Advisor of the Governor of Gujarat on a number of issues which the Tribunal otherwise would have had to go into. The main features of the Agreement, as far as this case is concerned, were that the quantity of water in Narmada available for 75% of the year was to be assessed at 28 million acre feet and the Tribunal in determining the disputes referred to it was to proceed on the basis of this assessment. The net available quantity of water for use in Madhya Pradesh and Gujarat was to be regarded as 27.25 million acre feet which was to be allocated between the States. The height of the Navagam Dam was to be fixed by the Tribunal after taking into consideration various contentions and submissions of the parties and it was agreed that the appeals filed in this Court by the States of Madhya Pradesh and Rajasthan would be withdrawn. It was also noted in this agreement that "development of Narmada should no longer be delayed in the best regional and national interests".
After the withdrawal of the appeals by the States of Madhya Pradesh and Rajasthan, the Tribunal proceeded to decide the remaining issues between the parties.
On 16th August 1978, the Tribunal declared its Award under Section 5(2) read with Section 5(4) of the Inter-State Water Disputes Act, 1956. Thereafter, reference numbers 1,2,3,4 & 5 of 1978 were filed by the Union of India and the States of Gujarat, Madhya Pradesh, Maharashtra and Rajasthan respectively under Section 5(3) of the Inter-State Water Disputes Act, 1956. These references were heard by the Tribunal, which on 7th December, 1979, gave its final order. The same was published in the extraordinary Gazette by the Government of India on 12th December 1979. In arriving at its final decision, the issues regarding allocation, height of dam, hydrology and other related issues came to be subjected to comprehensive and thorough examination by the Tribunal. Extensive studies were done by the Irrigation Commission and Drought Research Unit of India, Meteorological Department in matters of catchment area of Narmada basin, major tributaries of Basin, drainage area of Narmada Basin, climate, rainfall, variability of rainfall, arid and semi-arid zones and scarcity area of Gujarat. The perusal of the report shows that the Tribunal also took into consideration various technical literature before giving its Award.
AWARD OF THE TRIBUNAL
The main parameters of the decision of the Tribunal were as under:
DETERMINATION F THE HEIGHT OF SARDAR SAROVAR DAM
The height of the Sardar Sarovar Dam was determined at FRL 455 ft. The Tribunal was of the view that the FRL +436 ft. was required for irrigation use alone. In order to generate power throughout the year, it would be necessary to provide all the live storage above MDDL for which an FRL of +453 ft. with MDDL + 362 ft. would obtain gross capacity of 7.44 MAF. Therefore, the Tribunal was of the view that FRL of the Sardar Sarovar Dam should be +455 ft. providing gross storage of 7.70 MAF. It directed the State of Gujarat to took up and complete the construction of the dam.
Geological and Seismological aspects of the dam site.
The Tribunal accepted the recommendations of the Standing Committee under Central Water and Power Commission that there should be a seismic coefficient of 0.10 g for the dam.
RELEIF AND REHABILITATION:
The final Award contained directions regarding submergence, land acquisition and rehabilitation of the displaced persons. The award defined the meaning of the land, oustee and family. The Gujarat Government was to pay to Madhya Pradesh and Maharashtra all costs including compensation, charges, expenses incurred by them for and in respect of compulsory acquisition of land. Further, the Tribunal had provided for rehabilitation of oustees and civic amenities to be provided to the oustees. The Award also provided that if the State of Gujarat was unable to resettle the oustees or the oustees were being unwilling to occupy the area offered by the States, then the oustees will be re-settled by home State and all expenses for this were to be borne by Gujarat. An important mandatory provision regarding rehabilitation was the one contained in Clause XI sub-clause IV(6)(ii) which stated that no submergence of any area would take place unless the oustees were rehabilitated.
ALLOCATION OF THE NARMADA WATERS:
The Tribunal determined the utilisable quantum of water of the Narmada at Sardar Sarovar Dam site on the basis of 75% dependability at 28 MAF. It further ordered that out of utilisable quantum of Narmada water, the allocation between the States should be as under:
Madhya Pradesh : 18.25 MAF
Gujarat : 9.00 MAF
Rajasthan : 0.50 MAF
Maharashtra : 0.25 MAF
PERIOD OF NON REVIEWABILITY OF CERTAIN AWARD TERMS:
The Award provided for the period of operation of certain clauses of the final order and decision of the Tribunal as being subject to review only after a period of 45 years from the date of the publication of the decision of the Tribunal in the official gazette. What is important to note however is that the Tribunal's decision contained in clause II relating to determination of 75% dependable flow as 28 MAF was non-reviewable. The Tribunal decision of the determination of the utilizable quantum of Narmada water at Sardar Sarovar Dam site on the basis of 75% dependability at 28 MAF is not a clause which is included as a clause whose terms can be reviewed after a period of 45 years.
The Tribunal in its Award directed for the constitution of the inter-State Administrative Authority i.e. Narmada Control Authority for the pupose of securing compliance with and implementation of the decision and directions of the Tribunal. The Tribunal also directed for constitution of a Review Committee consisting of the Union Minister for Irrigation(now substituted by Union Minister for Water Resources) as its Chairperson and the Chief Ministers of Madhya Pradesh, Maharashtra, Gujarat and Rajasthan as its members. The Review Committee might review the decisions of the Narmada Control Authority and the Sardar Sarovar Construction Advisory Committee. The Sardar Sarovar Construction Advisory Committee headed by the Secretary, Ministry of Water Resources as is Chairperson was directed to be constituted for ensuring efficient, economical and early execution of the project.
Narmada Control Authority is a high powered committee having the Secretary, Ministry of Water Resources, Government of India as its Chairperson, Secretaries in the Ministry of Power, Ministry of Environment and Forests, Ministry of Welfare, Chief Secretaries of the concerned four States as Members. In addition, thereto, there are number of technical persons like Chief Engineers as the members.
Narmada Control Authority was empowered to constitute one or more sub-committees and assign to them such of the functions and delegate such of its powers as it thought fit. Accordingly, the Narmada Control Authority constituted the following discipline based sub-groups:
Resettlement and Rehabilitation sub-group under the Chairmanship of Secretary, Ministry of Welfare;
Rehabilitation Committee under Secretary, Ministry of Welfare to supervise the rehabilitation process by undertaking visits to R&R sites and submergence villages.
Environment Sub-group under the Chairmanship of Secretary, Ministry of Environment and Forests;
Hydromet Sub-group under the Chairmanship of Member (Civl), Narmada Control Authority;
Power Sub-group under the Chairmanship of Member (Power) Narmada Control Authority;
Narmada main Canal Sub-committee under the chairmanship of Executive Member, Narmada Control Authority.
The Award allocated the available water resources of the Narmada river between the four States. Based on this allocation, an overall plan for their utilisation and development had been made by the States. Madhya Pradesh was the major sharer of the water. As per the water resources development plan for the basin it envisaged in all 30 major dams, 135 medium dam projects and more than 3000 minor dams. The major terminal dam at Sardar Sarovar was in Gujarat, the remaining 29 being in Madhya Pradesh. Down the main course of the river, the four major dams were the Narmada Sagar (now renamed Indira Sagar), Omkareshwar and Maheshwar all in Madhya Pradesh and Sardar Sarovar in Gujarat. Rajasthan was to construct a canal in its territory to utilize its share of 0.5 MAF.
Relevant Details of the Sardar Sarovar Dam:
As a result of the Award of the Tribunal, the Sardar Sarovar Dam and related constructions, broadly speaking, are to comprise of the following:
Main dam across the flow of the river with gates above the crest level to regulate the flow of water into the Narmada Main Canal.
An underground River Bed Power through which a portion of the water is diverted to generate power (1200 MW). This water joins the main channel of the Narmada river downstream of the dam.
A saddle dam located by the side of the main reservoir through which water to the main canal system flows.
A Canal Head Power House located at the toe of the saddle dam, through which the water flowing to the main canal system is to be used to generate power (250 MW).
The main canal system known as Narmada main canal 458 km long which is to carry away the water meant for irrigation and drinking purposes to the canal systems of Gujarat and Rajasthan.
Expected benefits from the project:
The benefits expected to flow from the implementation of the Sardar Sarovar Project had been estimated as follows:
Irrigation: 17.92 lac hectare of land spread over 12 districts, 62 talukas and 3393 villages (75% of which is drought prone areas) in Gujarat and 73000 hectares in the arid areas of Barmer and Jalore districts in Rajasthan.
Drinking Water facilities to 8215 villages and 135 urban centres in Gujarat both within and outside command. These include 5825 villages and 100 urban centers of Saurashtra and Kachchh which are outside the command. In addition, 881 villages affected due to high contents of fluoride will get potable water.
Power Generation: 1450 Megawatt.
Annual Employment Potential:
7 lac man-years during construction
6 lac man-years in post construction.
Protection against advancement of little Rann of Kutch and Rajasthan desert.
Flood Protection to riverine reaches measuring 30,000 ha, 210 villages including Bharuch city and 7.5 lac population.
Benefits to:
Dhumkhal Sloth Bear Sanctuary
Wild Ass Sanctuary in Little Rann of Kachchh
Black Buck Sanctuary at Velavadar
Great Indian Bustard Sanctuary in Kachchh
Nal Sarovar Bird Sanctuary
Development of fisheries: Deepening of all village tanks of command which will increase their capacities, conserve water, will recharge ground water, save acquisition of costly lands for getting earth required for constructing canal banks and will reduce health hazard.
Facilities of sophisticated communication system in the entire command.
Increase in additional annual production on account of
(Rs in crores)
Agricultural Production 900
Domestic water supply 100
Power generation 440
---------
Total 1400
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POST AWARD CLEARANCES:
In order to meet the financial obligations, consultations had started in 1978 with the World Bank for obtaining a loan. The World Bank sent its Reconnaissance Mission to visit the project site and carried out the necessary inspection. In May, 1985, the Narmada Dam and Power Project and Narmada Water Delivery and Drainage Project were sanctioned by the World Bank under International Development Agency, credit No. 1552. Agreement in this respect was signed with the Bank on 10.5.1985 and credit was to be made available from 6th January, 1986.
With regard to the giving environmental clearance, a lot of discussion took place at different levels between the Ministry of Water Resources and the Ministry of Environment. Ultimately on 24th June, 1987 the Ministry of Environment and Forests, Government of India accorded clearance subject to certain conditions. The said Office Memorandum containing the environmental clearance reads as follows:
OFFICE MEMORANDUM
Subject : Approval of Narmada Sagar Project, Madhya Pradesh and Sardar Sarovar Project, Gujarat from environmental angle.
The Narmada Sagar Project, Madhya Pradesh and Sardar Sarovar Project, Gujarat have referred to this Department for environmental clearance.
2. On the basis of examination of details on these projects by the Environmental Appraisal Committee for River Valley Projects and discussions with the Central and State authorities the following details were sought from the project authorities.
Rehabilitation Master Plan
Phased Catchment Area Treatment Scheme
Compensatory Afforestation Plan
Command Area Development
Survey of Flora and Fauna
Carrying capacity of surrounding area.
Seismicity and
Health Aspects
3. Field surveys are yet to be completed. The first set of information hash been made available and complete details have been assured to be furnished in 1989.
4. The NCA has been examined and its terms of reference have been amplified to ensure that environmental safeguard measures are planned and implemented in depth and in its pace of implementation pari passu with the progress on the projects.
5. After taking into account all relevant facts the Narmada Sagar Project, Madhya Pradesh and the Sardar Sarovar Project, Gujarat State are hereby accorded environmental clearance subject to the following conditions.
i. The Narmada Control Authority (NCA) will ensure that environmental safeguard measures are planned and implemented pari passu with progress of work on project.
ii) The detailed surveys/ studies assured will be carried out as per the schedule proposed and details made available to the Department for assessment.
iii) The Catchment Area Treatment programme and the Rehabilitation plans be so drawn as to be completed ahead of reservoir filling.
iv) The Department should be kept informed of progress on various works periodically.
6. Approval under Forest (Conservation) Act, 1980 for diversion of forest land will be obtained separately. No work should be initiated on forest area prior to this approval.
Sd/-
(S.MUDGAL)
DIRECTOR(IA)"
In November, 1987 for monitoring and implementation of various environmental activities effectively, an independent machinery of Environment Sub-Group was created by Narmada Control Authority. This Sub-Group was appointed with a view to ensure that the environmental safeguards were properly planned and implemented. This Sub-Group is headed by the Secretary, Ministry of Environment and Forests, Government of India, as its Chairperson and various other independent experts in various fields relating to environment as its members.
After the clearance was given by the Ministry of Environment and Forests, the Planning Commission, on 5th October, 1988, approved investment for an estimated cost of Rs. 6406/- crores with the direction to comply with the conditions laid down in the environmental clearance accorded on 24th June, 1987.
According to the State of Gujarat and Union of India, the studies as required to be done by the O.M. dated 24th June, 1987, whereby environmental clearance was accorded, have been undertaken and the requisite work carried out. The construction of the dam had commenced in 1987.
In November, 1990 one Dr. B.D. Sharma wrote a letter to this Court for setting up of National Commission for Scheduled Castes and Scheduled Tribes including proper rehabilitation of oustees of Sardar Sarovar Dam. This letter was entertained and treated as a writ petition under article 32 of the Constitution being Writ Petition No. 1201 of 1990.
On 20th September, 1991, this Court in the said Writ Petition bearing No. 1201 of 1990 gave a direction to constitute the Committee headed by Secretary (Welfare) to monitor the rehabilitation aspects of Sardar Sarovar Project.
The Narmada Bachao Andolan, the petitioner herein, had been in the forefront of agitation against the construction of the Sardar Sarovar Dam. Apparently because of this, the Government of India, Ministry of Water Resources vide Office Memorandum dated 3rd August, 1993 constituted a Five Member Group to be headed by Dr. Jayant Patil, Member, Planning Commission and Dr. Vasant Gowarikar, Mr. Ramaswmy R. Iyer, Mr. L.C. Jain and Dr. V.C. Kulandaiswamy as its members to continue discussions with the Narmada Bachao Andolan on issues relating to the Sardar Sarovar Project. Three months time was given to this Group to submit its report.
During this time, the construction of the dam continued and on 22nd February, 1994 the Ministry of Water Resources conveyed its decision regarding closure of the construction sluices. This decision was given effect to and on 23rd February, 1994 closure of ten construction sluices was effected.
In April, 1994 the petitioner filed the present writ petition inter alia praying that the Union of India should be restrained from proceeding with the construction of the dam and they should be ordered to open the aforesaid sluices. It appears that the Gujarat High Court had passed an order staying the publication of the report of the Five Member Group established by the Ministry of Water Resources. On 15th November, 1994, this Court called for the report of the Five Member Group and the Government of India was also directed to give its response to the said report.
By order dated 13th December, 1994, this Court directed that the report of the Five Member Group be made public and responses to the same were required to be filed by the States and the report was to be considered by the Narmada Control Authority. This Report was discussed by the Narmada Control Authority on 2nd January, 1995 wherein disagreement was expressed by the State of Madhya Pradesh on the issues of height and hydrology. Separate responses were filed in this Court to the said Five Member Group Report by the Government of India and the Governments of Gujarat and Madhya Pradesh.
On 24th January, 1995, orders were issued by this Court to the Five Member Group for submitting detailed further report on the issues of:
Height
Hydrology
Resettlement and Rehabilitation and environmental matters.
Dr. Patil who had headed the Five Member Group expressed his unwillingness to continue on the ground of ill-health and on 9th February, 1985, this Court directed the remaining four members to submit their report on the aforesaid issues.
On 17th April, 1985 the Four Member Group submitted its report. The said report was not unanimous, unlike the previous one, and the Members were equally divided. With regard to hydrology, Professor V.C.Kulandaiswamy and Dr. Vasant Gowariker were for adoption of 75% dependable flow of 27 MAF for the design purpose, on the basis of which the Tribunal's Award had proceeded. On the other hand, Sri Ramaswamy Iyer and Shri L.C.Jain were of the opinion that for planning purposes, it would be appropriate to opt for the estimate of 23 MAF. With regard to the question relating to the height of the dam, the views of Dr. Gowariker were that Tribunal had decided FRL 455 ft. after going into exhaustive details including social, financial and technical aspects of the project and that it was not practicable at the stage when an expenditure or Rs. 4000 crores had been incurred and an additional contracts amounting to Rs. 2000 crores entered into and the various parameters and features of the project having been designed with respect to FRL 455 ft. that there should be a reduction of the height of the dam. The other three Members proceeded to answer this question by first observing as follows:
"We must now draw conclusions from the foregoing analysis, but a preliminary point needs to be made. The SSP is now in an advanced stage of construction, with the central portion of the dam already raised to 80 m.; the canal constructed upto a length of 140 kms.; and most of the equipment for various components of the project ordered and some of it already wholly or partly manufactured. An expenditure of over Rs. 3800 crores is said to have been already incurred on the project; significant social costs have also been incurred in terms of displacement and rehabilitation. The benefits for which these costs have been and are being incurred have not materialised yet. In that situation, any one with a concern for keeping project costs under check and for ensuring the early commencement of benefits would generally like to accelerate rather than retard the completion of the project as planned. If any suggestion for major changes in the features of the project at this juncture is to be entertained at all, there will have to be the most compelling reasons for doing so."
It then addressed itself to the question whether there were any compelling reasons. The answer, they felt, depended upon the view they took on the displacement and rehabilitation problem. The two views, which it examined, were, firstly whether the problem of displacement and rehabilitation was manageable and, if it was, then there would not case of reduction in height. On the other hand, if relief and rehabilitation was beset with serious and persistent problems then they might be led to the conclusion that there should be an examination of the possibility of reducing submergence and displacement to a more manageable size. These three Members then considered the question of the magnitude of the relief and rehabilitation problem. After taking into consideration the views of the States of Madhya Pradesh and Gujarat, the three Members observed as follows:
"We find that the Government of India's idea of phased construction outlined earlier offers a practical solution; it does not prevent the FRL from being raised to 455' in due course if the necessary conditions are satisfied; and it enables the Government of Madhya Pradesh to take stock of the position at 436' and call a halt if necessary. We would, however, reiterate the presumption expressed in paragraph 3.9.2 above namely that no delinking of construction from R&R is intended and that by "phased construction" the Government of India do not mean merely tiered construction which facilitates controlled submergence in phases. We recommend phased construction in a literal sense, that is to say, that at each phase it must be ensured that the condition of advance completion of R&R has been fulfilled before proceeding to the next phase (i.e. the installed of the next tier of gates). This would apply even to the installation of first tier. "Judicious operation of the gates" (while necessary0 cannot be a substitute for the aforesaid condition."
The possibility of further construction when the FRL 436 ft. was reached or a stoppage at that stage was left open by the Members. With regard to the environment it observed that this subject had been by and large covered in the first FMG report.
RIVAL CONTENTIONS
On behalf of the petitioners, the arguments of Sh. Shanti Bhushan, learned senior counsel, were divided into four different heads, namely, general issues, issues regarding environment, issues regarding relief and rehabilitation and issues regarding review of Tribunal's Award. The petitioners have sought to contend that it is necessary for some independent judicial authority to review the entire project, examine the current best estimates of all costs (social, environmental, financial), benefits and alternatives in order to determine whether the project is required in its present form in the national interest or whether it needs to be restructured/ modified. It is further the case of the petitioners that no work should proceed till environment impact assessment has been fully done and its implications for the projects viability being assessed in a transparent and participatory manner. This can best be done, it is submitted, as a part of the comprehensive review of the project.
While strongly championing the cause of environment and of the tribals who are to be ousted as a result of submergence, it was submitted that the environmental clearance which was granted in 1987 was without any or proper application of mind as complete studies in that behalf were not available and till this is done the project should not be allowed to proceed further. With regard to relief and rehabilitation a number of contentions were raised with a view to persuade this Court that further submergence should not take place and the height of the dam, if at all it is to be allowed to be constructed, should be considerably reduced as it is not possible to have satisfactory relief and rehabilitation of the oustees as per the Tribunal's Award as a result of which their fundamental rights under Article 21 would be violated.
While the State of Madhya Pradesh has partly supported the petitioners in as much as it has also pleaded for reduction in the height of the dam so as to reduce the extent of submergence and the consequent displacement, the other States and the Union of India have refuted the contentions of the petitioners and of the State of Madhya Pradesh. While accepting that initially the relief and rehabilitation had lagged behind but now adequate steps have been taken to ensure proper implementation of relief and rehabilitation at least as per the Award. The respondents have, while refuting other allegations, also questioned the bona fides of the petitioners in filing this petition. It is contended that the cause of the tribals and environment is being taken up by the petitioners not with a view to benefit the tribals but the real reason for filing this petition is to see that a high dam is not erected per se. It was also submitted that at this stage this Court should not adjudicate on the various issues raised specially those which have been decided by the Tribunal's Award.
We first propose to deal with some legal issues before considering the various submissions made by Sh. Shanti Bushan regarding environment, relief and rehabilitation, alleged violation of rights of the tribals and the need for review of the project.
LATCHES
As far as the petitioner is concerned, it is an anti-dam organisation and is opposed to the construction of the high dam. It has been in existence since 1986 but has chosen to challenge the clearance given in 1987 by filing a writ petition in 1994. It has sought to contend that there was lack of study available regarding the environmental aspects and also because of the seismicity, the clearance should not have been granted. The rehabilitation packages are dissimilar and there has been no independent study or survey done before decision to undertake the project was taken and construction started.
The project, in principle, was cleared more than 25 years ago when the foundation stone was laid by the late Pandit Jawahar Lal Nehru. Thereafter, there was an agreement of the four Chief Ministers I 1974, namely the Chief Ministers of Madhya Pradesh, Gujarat, Maharashtra and Rajasthan for the project to be undertaken. Then dispute arose with regard to the height of the dam which was settled with the award of the Tribunal being given in 1978. For a number of years thereafter, final clearance was still not given. In the meantime some environmental studies were conducted. The final clearance was not given because of the environmental concern which is quite evident. Even though complete data with regard to the environment was not available, the Government did in 1987 finally given environmental clearance. It is thereafter that the construction of the dam was undertaken and hundreds of crores have been invested before the petitioner chose to file a writ petition in 1994 challenging the decision to construct the dam and the clearance as was given. In our opinion, the petitioner which had been agitating against the dam since 1986 is guilty of latches in not approaching the Court at an earlier point of time.
When such projects are undertaken and hundreds of crores of public money is spent, individual or organisations in the garb of PIL cannot be permitted to challenge the policy decision taken after a lapse of time. It is against the national interest and contrary to the established principles of law that decisions to undertake developmental projects are permitted to be challenged after a number of years during which period public money has been spent in the execution of the project.
The petitioner has been agitating against the construction of the dam since 1986, before environmental clearance was given and construction started. It has, over the years, chosen different paths to oppose the dam. At it's instance a Five Member Group was constituted, but it's report could not result in the stoppage of construction pari passu with relief and rehabilitation measures. Having failed in it's attempt to stall the project the petitioner has resorted to court proceedings by filing this writ petition long after the environmental clearance was given and construction started. The pleas relating to height of the dam and the extent of submergence, environment studies and clearance, hydrology, seismicity and other issues, except implementation of relief and rehabilitation, cannot be permitted to be raised at this belated stage.
This Court has entertained this petition with a view to satisfy itself that there is proper implementation of the relief and rehabilitation measures at least to the extent they have been ordered by the Tribunal's Award. In short it was only the concern of the Court for the protection of the fundamental rights of the oustees under Article 21 of the constitution of India which led to the entertaining of this petition. It is the Relief and Rehabilitation measures that this Court is really concerned with and the petition in regard to the other issues raised is highly belated. Though it is, therefore, not necessary to do so, we however presently propose to deal with some of the other issues raised.
AWARD-BINDING ON THE STATES
It has been the effort on the part of the petitioners to persuade this Court to decide that in view of the difficulties in effectively implementing the Award with regard to relief and rehabilitation and because of the alleged adverse impact of the construction of the dam will have on the environment, further construction of the dam should not be permitted. The petitioners support the contention on behalf of the State of Madhya Pradesh to the effect that the height of the dam should be reduced in order to decrease the number of oustees. In this case, the petitioners submit that with regard to hydrology, the adoption of the figure of 27 MAF is not correct and the correct figure is 23 MAF and in view thereof the height of the dam need not be 455 feet.
The Tribunal in this Award has decided a number of issues which have been summarised hereinabove. The question which arises is as to whether it is open to the petitioners to directly or indirectly challenge the correctness of the said decision. Briefly stated the Tribunal had in no uncertain terms come to the conclusion that the height of the dam should be 455 feet. It had rejected the contention of the State of Madhya Pradesh for fixing the height at a lower level. At the same time in arriving at this figure, it had considered the relief and rehabilitation problems and had issued directions in respect thereof. Any issue which has been decided by the Tribunal, in law, be binding on the respective states. That this is so has been recently decided by a Constitution Bench of the Court in The State of Karnataka Vs. State of Andhra Pradesh and others, 2000 (3) Scale 505. That was a case relating to a water dispute regarding inter-State river Krishna between the three riparian States and in respect of which the Tribunal constituted under the Inter-State Water Disputes Act, 1956 had given an Award. Dealing with the Article 262 and the scheme of the Inter-State Water Disputes Act, this Court at 572 observed as follows:
"The inter-State Water Disputes Act having been framed by the Parliament under Article 262 of the Constitution in a complete Act by itself and the nature and character of a decision made thereunder has to be understood in the light of the provisions of the very Act itself. A dispute or difference between two or more State Governments having arisen which is a water dispute under Section 2(C) of the Act and complain to that effect being made to the Union Government under Section 3 of the said Act the Central Government constitutes a Water Disputes Tribunal for the adjudication of the dispute in question, once it forms the opinion that the dispute cannot be settled by negotiations. The Tribunal thus constituted, is required to investigate the matters referred to it and then forward to the Central Government a report setting out the facts as found by him and giving its decision on it as provided under sub-Section (2) of Section 5 of the Act. On consideration of such decision in question requires explanation or that guidance is needed upon any point not originally referred to the Tribunal then within three months from the date of the decision, reference can be made to the Tribunal for further consideration and the said Tribunal then forwards to the Central Government a further report giving such explanation or guidance as it deems fit. Thereby the original decision of the Tribunal is modified to the extent indicated inn the further decision as provided under Section 5(3) of the Act. Under Section 6 of the Act the Central Government is duty bound to publish the decision of the Tribunal in the Official Gazette whereafter the said decision becomes final and binding on the parties to the dispute and hash to be given effect to, by them. The language of the provisions of Section 6 is clear and unambiguous and unequivocally indicates that it is only the decision of the Tribunal which is required to be published in the Official Gazette and on such publication that decision becomes final and binding on the parties."
Once the Award is binding on the States, it will not be open to third party like the petitioners to challenge the correctness thereof. In terms of the Award, the State of Gujarat has a right to construct a dam upto the height of 455 ht. and, at the same time, the oustees have a right to demand relief and resettlement as directed in the Award. We, therefore, do not propose to deal with any contention which, in fact, seems to challenge the correctness of an issue decided by the Tribunal.
GENERAL ISSUES RELATING TO DIS-PLACEMENT OF TRIBALS AND ALLEGED VIOLATION OF THE RIGHTS UNDER ARTICLE 21 OF THE CONSTITUTION:
The submission of Sh. Shanti Bhusan, learned senior counsel for the petitioners was that the forcible displacement of tribals and other marginal farmers from their land and other sources of livelihood for a project which was not in the national or public interest was a violation of their fundamental rights under Article 21 of the Constitution of India read with ILO Convention 107 to which India is a signatory. Elaborating this contention, it was submitted that this Court had held in a large number of cases that international treaties and covenants could be read into the domestic law of the country and could be used by the courts to elucidate the interpretation of fundamental rights guaranteed by the Constitution. Reliance in support of this contention was placed on Gramaphone Co. of India Ltd. Vs. B.B.Pandey, 1984(2) SCC 534, PUCL Vs. Union of India, 1997(3)SCC 433 and CERC Vs. Union of India, 1995(3) SCC 42. In this connection, our attention was drawn to the ILO Convention 107 which stipulated that tribal populations shall not be removed from lands without their free consent from their natural territories except in accordance with national laws and regulations or reasons relating to national security or in the interest of national economic development. It was further stated that the said Convention provided that in such cases where removal of this population is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of lands previously occupied by them, suitable to provide for their present needs and future development. Sh. Shanti Bhushan further contended that while Sardar Sarovar Project will displace and have an impact on thousands of tribal families it had not been proven that this displacement was required as an exceptional measure. He further submitted that given the seriously flawed assumptions of the project and the serious problems with the rehabilitation and environmental mitigation, it could not said that the project was in the national interest. It was also submitted that the question arose whether the Sardar Sarovar Project could be said to be in the national and public interest in view of its current best estimates of cost, benefits and evaluation of alternatives and specifically in view of the large displacement of tribals and other marginal farmers involved in the project. Elaborating this contention, it was contended that serious doubts had been raised about the benefits of the project - the very rationale which was sought to justify the huge displacement and the massive environmental impacts etc. it was contended on behalf of the petitioners that a project which was sought to be justified on the grounds of providing a permanent solution to water problems drought prone areas of Gujarat would touch only the fringes of these areas, namely Saurashtra and Kutch and even this water, which was allocated on paper, would not really accrue due to host of reasons. It was contended that inspite of concentrating on small scale decentralized measures which were undertaken on a large scale could address the water problem of these drought prone areas. Huge portions of the State resources were being diverted to the Sardar Sarovar Project and as a result the small projects were ignored and the water problem in these areas persists. It was submitted that the Sardar Sarovar Project could be restructured to minimise displacement.
Refuting the aforesaid arguments, it has been submitted on behalf of the Union of India and the State of Gujarat that the petitioners have given a highly exaggerated picture of the submergence and other impacts of this project. It was also submitted that the petitioner's assertion that there was large-scale relocation and uprooting of tribals was not factually correct. According to respondents, the project would affected only 245 villages in Gujarat, Maharashtra and Madhya Pradesh due to pondage and backwater effect corresponding to 1 in 100 year flood. The State-wise break up of affected villages and the number of project affected families (PAFs) shows that only four villages would be fully affected (three in Gujarat and one in Madhya Pradesh) and 241 would be partially affected (16 in Gujarat, 33 in Maharashtra and 192 in Madhya Pradesh). The total project affected families who would be affected were 40827. The extent of the submergence was minimum in the State of Madhya Pradesh. The picture of this submergence as per the Government of Madhya Pradesh Action Plan of 1993 is as follows:
Abadi will be fully submerged in 39 villages and partially in 116 villages, agricultural land will be affected upto 10% in 82 villages, upto 26% in 32 villages, 26% to 50% in 30 villages, 51 to 75% in 14 villages, 76 to 90% in 4 villages and 100% in only 1 village. In 21 villages, only abadi will be affected and Government land only in 9 villages. Thus, in most of the villages, submergence is only partial."
The submergence area of the SSP can be devided into two areas:
i) Fully tribal, hilly area covering the initial reach of about 105 villages with mainly subsistence economy. It includes 33 villages of Maharashtra, 19 of Gujarat and about 53 of Madhya Pradesh.
(ii) Mixed population area in the plains of Nimad, with a well developed economy and connected to the mainstream. This area includes about 140 villages in Madhya Pradesh.
These two areas have quite different topographic and habitation features which result in totally different types of submergence impacts. The state of the hilly area to be affected by its submergence and where most of the tribal population exists is described by the Government of Madhya Pradesh Action Plan, 1993 as follows:
"The Narmada flows in hilly gorge from the origin to the Arabian Sea. The undulating hilly terrain in the lower submergence area of Sardar Sarovar Project exhibit naked hills and depleted forests. Even small forest animals are rarely seen because of lack of forest cover and water. The oft quoted symbiotic living with forests is a misnomer in this area because the depleted forests have nothing to offer except fuel wood. Soil is very poor mostly dis-integrated, granite and irrigation is almost nil due to undulating and hilly land. Anybody visiting this area finds the people desperately sowing even in hills with steep gradient. Only one rain fed crop of mostly maize is sown and so there is no surplus economy.
PAPs inhabiting these interior areas find generous rehabilitation and resettlement packages as a means to assimilate in the mainstream in the valley."
In 193 villages of Madhya Pradesh to be affected by the Project, a very high proportion of the houses would be affected whereas the land submergence was only 14.1%. The reason for this is that the river bed is a deep gorge for about 116 km. upstream of the dam and as a result the reservoir will be long (214 km), narrow (average width of 1.77 km) and deep. The result of this is that as one goes further upstream, the houses on the river banks are largely affected while agricultural land which is at a distance from the river banks is spared. A majority of 33014 families of Madhya Pradesh (which would include 15018 major sons) would lose only their houses and not agricultural lands would be required to be resettled in Madhya Pradesh by constructing new houses in the new abadi. According to the Award, agricultural land was to be allotted only if the project affected families lost 25% or more of agricultural land and on this basis as per the Government of Madhya Pradesh, only 830 project affected families of Madhya Pradesh were required to be allotted agricultural land in Madhya Pradesh.
According to the Government of Gujarat the tribals constituted bulk of project affected families who would be affected by the dam in Gujarat and Maharashtra, namely, 97% and 100% respectively. Out of the oustees of project affected families of Madhya Pradesh, tribals constituted only 30% while 70% were non-tribals. The total number of tribal project affected families were 17725 out of these, 9546 were already resettled. It was further the case of the respondents that in Madhya Pradesh the agricultural land of the tribal villages was affected on an average to the extent of 28% where in the upper reaches i.e. Nimad where the agriculture was advanced, the extent of submergence, on an average, was only 8.5%. the surveys conducted by HMS Gaur University (Sagar), the Monitoring and Evaluation Agency set up by the Government of Madhya Pradesh), reveal that the major resistance to relocation was from the richer, non-tribal families of Nimad who feared shortage of agriculture labour if the landless labourers from the areas accepted resettlement. In th Bi-Annual report, 1996 of HMS Gaur University, Sagar, it was observed as follows:
"The pre-resettlement study of submerging village has revealed many startling realities. Anti-dam protagonists presents a picture that tribals and backward people are the worst sufferers of this kind of development project. This statement is at least not true in case of the people of these five affected villages. Though, these villages comprise a significant population of tribals and people of weaker sections, but majority of them will not be a victim of displacement. Instead, they will gain from shifting. The present policy of compensation is most beneficial for the lot of weaker section. These people are living either as labourers or marginal farmers. The status of oustee will make them the owner of two hectares of land and a house. In fact, it is the land-owning class which is opposing the construction of dam by playing the card of tribals and weaker sections. The land-owners are presently enjoying the benefit of cheap labour in this part of the region. Availability of cheap labour is boon for agricultural activities. This makes them to get their return with less inputs."
It is apparent that the tribal population affected by the submergence would have to move but the rehabilitation package was such that the living conditions would be much better than what it was before there. Further more though 140 villages in Madhya Pradesh would be affected in the plains of Nimad, only 8.5% of the agricultural land of these villages shall come under submergence due to SSP and as such the said project shall have only a marginal impact on the agricultural productivity of the area.
While accepting the legal proposition that International Treaties and Covenants can be read into the domestic laws of the country the submission of the respondents was that Article 12 of the ILO Convention No. 107 stipulates that "Populations concerned shall not be removed without their free consent from their habitual territories except in accordance with national laws and regulations relating to national security, or in the interest of national economic development or of the health of the said populations".
The said Article clearly suggested that when the removal of the tribal populations is necessarily as an exceptional measure, they shall be provided with land of quality atleast equal to the land of the previously occupied by them and they shall be fully compensated for any resulting loss or injury. The rehabilitation package contained in the Award of the Tribunal as improved further by the State of Gujarat and the other States prime facie shows that the land required to be allotted to the tribals is likely to be equal, if not better, than what they had owned.
The allegation that the said project was not in the national or public interest is not correct seeing the need of water for burgeoning population which is most critical and important. The population of India, which is now one billion, is expected to reach a figure between 1.5 billion and 1.8 billion in the year 2050, would necessitate the need of 2788 billion cubic meter of water annually in India to be above water stress zone and 1650 billion cubic meter to avoid being water scarce country. The main source of water in India is rainfall which occurs in about 4 months in a year and the temporal distribution of rainfall is so uneven that the annual averages have very little significance for all practical purposes. According to the Union of India, one third of the country is always under threat of drought not necessarily due to deficient rainfall but many times due to its uneven occurrence. To feed the increasing population, more food grain is required and effort has to be made to provide safe drinking water, which, at present, is a distant reality for most of the population specially in the rural areas. Keeping in view the need to augment water supply, it is necessary that water storage capacities have to be increased adequately to ward off the difficulties in the event of monsoon failure as well as to meet the demand during dry season. It is estimated that by the year 2050 the country needs to create storage of at least 600 billion cubic meter against the existing storage of 174 billion cubic meter.
Dams play a vital role in providing irrigation for food security, domestic and industrial water supply, hydroelectric power and keeping flood waters back. On full development, the Narmada has a potential of irrigating over 6 million hectares of land and generating 3000 mw of power. The present stage of development is very low with only 3 to 4 Maf of waters being used by the party States for irrigation and drinking water against 28 Maf availability of water at 75% dependability as fixed by NWDT and about 1000MW power developed. 85% of the waters are estimated as flowing waste to sea. The project will provide safe and clean drinking water to 8215 villages and 135 towns in Gujarat and 131 villages in desert areas of Jalore district of Rajasthan, though against these only 241 villages are getting submerged partially and 4 villages fully due to the project.
The cost and benefit of the project were examined by the World Bank in 1990 and the following passage speaks for itself:
The argument in favour of the Sardar Sarovar Project is that the benefits are so large that they substantially outweigh the costs of the immediate human and environmental disruption. Without the dam, the long term costs for people would be much greater and lack of an income source for future generations would put increasing source on the environment. If the waters of the Narmada river continue to flow to the sea unused there appears to be no alternative to escalating human deprivation, particularly in the dry areas of Gujarat. The project has the potential to feed as many as 20 million people, provide domestic and industrial water to about 30 million, employ about 1 million, and provide valuable peak electric power in an area with high unmet power demand (farm pumps often get only a few hours power per day). In addition, recent research shows substantial economic "multiplier" effects (investment and employment triggered by development) from irrigation development. Set against the futures of about 70,000 project affected people, even without the multiplier effect, the ratio of beneficiaries to affected persons is well over 100:1….."
There is merit in contention of the respondents that there would be a positive impact on preservation of ecology as a result from the project. The SSP would be making positive contribution for preservation of environment in several ways. The Project is taking water to drought-prone and arid parts of Gujarat and Rajasthan would effectively arrest ecological degradation which was returning to make these areas inhabitable due to salinity ingress, advancement of desert, ground water depletion, fluoride and nitrite affected water and vanishing green cover. The ecology of water scarcity areas is under stress and transfer of Narmada water to these areas will lead to sustainable agriculture and spread of green cover. There will also be improvement of fodder availability which will reduce pressure on biodiversity and vegetation. The SSP by generating clean eco-friendly hydropower will save the air pollution which would otherwise take place by thermal generation power of similar capacity.
The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that their rehabilitation at new locations they are better off than what they were. At the rehabilitation sites they will have more and better amenities than which they enjoyed in their tribal hamlets. The gradual assimilation in the mainstream of the society will lead to betterment and progress.
ENVIRONMENTAL ISSUES
The four issued raised under this head by Sh. Shanti Bhushan are as under:
Whether the execution of a large project, having diverse and far reaching environmental impact, without the proper study and understanding of its environmental impact and without proper planning and mitigative measures is a violation of fundamental rights of the affected people guaranteed under Article 21 of the Constitution of India?
Whether the diverse environmental impacts of the Sardar Sarovar Project have been properly studied and understood?
Whether any independent authority has examined the environmental costs and mitigative measures to be undertaken in order to decide whether the environmental costs are acceptable and mitigative measures practical?
Whether the environmental conditions imposed by the Ministry of Environment have been violated and if so, what is the legal effect of the violations?
It was submitted by Sh. Shanti Bhushan that a large project having diverse and far reaching environmental impacts in the concerned States would require a proper study and understanding of the environmental impacts. He contended that the study and planning with regard to environmental impacts must precede construction. According to Sh. Shanti Bhusha, when the environmental clearance was given in 1987, proper study and analysis of the environmental impacts and mitigative measures, which were required to be taken, were not available and, therefore, this clearance was not valid. The decision to construct the dam was stated to be political one and was not a considered decision after taking into account the environmental impacts of the project. The execution of SSP without a comprehensive assessment and evaluation of the environmental impacts and a decision regarding its acceptability was alleged to be a violation of the rights of the affected people under Article 21 of the Constitution of India. It was further submitted that no independent authority has examined vehemently the environmental costs and mitigative measures to be undertaken in order to decide whether the environmental costs are acceptable and mitigative measures practical. With regard to the environmental clearance given in June, 1987, the submission of Sh. Shanti Bhushan was that this was the conditional clearance and the conditions imposed by the Ministry of Environment and Forests had been violated. The letter granting clearance, it was submitted, disclosed that even the basic minimum studies and plans required for the environmental impact assessment had not been done. Further more it was contended that in the year 1990, as the deadline for completion of the studies was not met, the Ministry of Environmental and Forests had declared that the clearance had lapsed. The Secretary of the said Ministry had requested the Ministry of Water Resources to seek extension of the clearance but ultimately no extension was sought or given and the studies and action plans continued to lag to the extent that there was no comprehensive environmental impact assessment of the project, proper mitigation plans were absent and the costs of the environmental measures were neither fully assessed nor included in the project costs. In support of this contentions, Sh. Shanti Bhushan relied upon the report of a Commission called the Independent Review or the Morse Commission. The said Commission had been set up by the World Bank and it submitted its report in June, 1992. In the report, the Commission had adversely commented on practically all aspects of the project and in relation to environment, it was stated as under:
Important assumptions upon which the projects are based are now questionable or are known to be unfounded. Environmental and social trade-off have been made, and continue to be made, without a full understanding of the consequences. As a result, benefits tend to be over-stated, while social and environmental costs are frequently understated. Assertions have been substituted for analysis.
We think that the Sardar Sarovar Projects as they stand are flawed, that resettlement and rehabilitation of all those displaced by the projects is not possible under the prevailing circumstances, and that the environmental impacts of the projects have not been properly considered or adequately addressed.
The history of environmental aspects of Sardar Sarovar is a history of non-compliance. There is no comprehensive impact statement. The nature and magnitude of environmental problems and solutions remain elusive."
Sh. Shanti Bhushan submitted that it had become necessary for some independent judicial authority to review the entire project, examine the current best estimates of all costs (social, environmental, financial), benefits and alternatives in order to determine whether the project is required in its present form in the national interest, or whether it needs to be restructured/ modified.
Sh. Shanti Bhushan further submitted that environmental impacts of the Projects were going to be massive and full assessment of these impacts had not been done. According to him the latest available studies show that studies and action plans had not been completed and even now they were lagging behind pari passu. It was also contended that mere listing of the studies does not imply that everything is taken care of. Some of the studies were of poor quality and based on improper data and no independent body had subjected these to critical evaluation.
RE: ENVIRONMENTAL CLEARANCE:
As considerable stress was laid by Sh. Shanti Bhushan challenging the validity of the environmental clearance granted in 1987 inter alia on the ground that it was not preceded by adequate studies and it was not a considered opinion and there was non-application of mind while clearing the project, we first propose to deal with the contention.
The events after the Award and upto the environmental clearance granted by the Government vide its letter dated 24th June, 1987 would clearly show that some studies, though incomplete, had been made with regard to different aspects of the environment. Learned counsel for the respondents stated that in fact on the examination of the situation, the claim made with regard to the satisfactory progress was not correct. In order to carry out the directions in the Award about the setting up of an authority, the Inter-State Water Disputes Act, 1956 was amended and Section 6-A was inserted to set out how a statutory body could be constituted under the Act. On 10th September, 1980 in exercise of the powers conferred by Section 6-A of the Act the Central Government framed a scheme, constituted the Narmada Control Authority to give effect to the decision of the Award.
In January, 1980, the Government of Gujarat submitted to the Central Water Commission a detailed project report in 14 volumes. This was an elaborate report and dealt with various aspects like engineering details, canal systems, geology of area, coverage of command area, etc. On 15th February, 1980 the Central Water Commission referred SSP to the then Department of Environment in Department of Science and Technology. At that point of time, environmental clearance was only an administrative requirement. An environmental checklist was forwarded to Government of Gujarat on 27th February, 1980 which sought to elucidate information including following ecological aspects:
Excessive sedimentation of the reservoir
Water logging
Increase in salinity of the groundwater
Ground water recharge
Health hazard-water borne diseases, industrial pollution etc.
Submergence of important minerals
Submergence of monuments
Fish culture and aquatic life
Plant life-forests
Life of migratory birds
National Park and Sanctuaries
Seismicity due to filling of reservoir
The Government of Gujarat accordingly submitted information from September, 1980 till March, 1983. This information was also submitted on physio-social and economic studies for Narmada Command Area covering cropping pattern, health aspects, water requirement etc. A note of influence of Navagam dam on fish yield including impact on downstream fisheries was also submitted.
The techno-economic appraisal of the project was undertaken by the Central Water Commission which examined water availability, command area development, construction etc. The project was considered in the 22nd meeting of the Technical Advisory Committee on Irrigation, Flood Control and Multi-purpose projects held on 6.1.1983 and found it acceptable subject to environmental clearance.
At this point of time, the matter was handled by the Department of Science and Technology which also had a Department dealing with Environment. Environmental Appraisal Committee of the Department of Environment, then headed by a Joint Secretary, had in its meeting held on 12.4.1983 approved the project, and required that further data be collected. This Environmental Appraisal Committee dealt with the project on two other occasions, namely on 29.3.1985 when it deferred meeting to await report of Dewan Committee on soil conservation and thereafter on 6.12.1985 when it deferred the meeting to await comments from the Forest Department. As stated hereafter, subsequently the Secretary of newly constituted Ministry of Environment and Forests took up further consideration of this project along with other higher officials.
After the project was approved, in principle, studies and collections of data were continuing. In May, 1983 the Narmada Planning Group, Government of Gujarat after completion of preliminary surveys submitted work plans for various activities such as cropping pattern, health aspects, water requirements, distribution system, lay out and operation, development plan of the command, drainage and ground water development.
In July, 1983, a study report on "Ecology and Environment Impact of Sardar Sarovar Dam and its Environs" prepared by MS University was also submitted by Government of Gujarat, covering the issues as mentioned below:
Climate
Geology
Soil
Land use
Forest and Wildlife, Aquatic Vegetation
Water Regime (Salinity, Tidal movements etc.)
Fisheries
Health
Seismicity
A review meeting was convened by the Secretary, Ministry of Water Resources in January, 1984 which was attended by a representative of the Department of Environment. During this meeting, it was emphasized that the issues regarding catchment area treatment, impact on wildlife, health, water logging etc. should be studied in depth for assessment. The issue of charging of cost of catchment area treatment to the project was also discussed. To sort out this matter, a meeting was subsequently convened by the Member, Planning Commission on 23rd May, 1984 in which the Ministry of Environment & Forests took a stand that there was a need for an integrated approach to basin development covering the catchment and command area. A project report, therefore, should be prepared to cover these aspects. Since the catchment area of Narmada Sagar and Sardar Sarovar was very vast, it was decided that an Inter-Departmental Committee should be set up by the Ministry of Agriculture under the Chairmanship of Dr. M.L. Dewan. This group could submit its report only in August, 1985 covering areas of catchment of Narmada and Sardar Sarovar and recommended that at least 25-30% of the area might require treatment for these projects.
The consideration of the project in the Ministry, therefore, got deferred for this report on catchment area treatment. During this time, Government of Madhya Pradesh entrusted the studies on flora for Narmada Valley Project to Botanical Survey of India and other related surveys were being carried out. Even though there was a request on 10th June, 1985 from the Chief Minister of Gujarat to the Minister of State for Environment and Forests for delinking of catchment area treatment works on clearance of the project, but this request was not agreed.
By this time the approval of SSP was being considered by the Secretary, Ministry of Environment and Forests who invited other high officials in a review meeting which was held on 31st December, 1985 under his Chairmanship. In this meeting, detailed presentations were made by the State officials of Gujarat, Madhya Pradesh and Maharashtra as well as the experts who were involved in preparation of plans. The Secretary, Ministry of Environment and Forests assessed and reviewed readiness on various environmental aspects like Catchment Area Treatment, Compensatory Afforestation, Rehabilitation, Command Area Development, Labour force and health issues, aquatic species, seismicity etc. and discussed the available reports in detail in the presence of the officers of the Central/ State Governments, Botanical Survey of India, senior officers of Forest Department, Planning Commission, Agriculture Department, Additional Inspector of Forests, Government of India, Deputy Inspector General, Assistant Inspector General of Forest, Government of India, senior officers of the Ministry of Environment and Forests, Secretary, Irrigation.
As a follow up, the Government of Maharashtra submitted environmental data regarding affected areas in Maharashtra. This included:
Impact assessment on wildlife
Impact assessment on genetics, specifically identifying the plant types which are likely to be lost as a result of submergence.
Social anthropological studies on tribals
The suitability of alternative land suggested for compensatory afforestation for growing.
Data regarding alternate land in large blocks.
Arrangements made for exploitation of mineral resources going under submergence.
Alternative fuels to the labourers.
Micro-climatic changes.
Arrangements made for treatment of catchment area including swoil conservation afforestation.
Steps taken for preserving archaeological and historical monuments.
Proper land use
Actions taken by Government of Maharashtra in pursuance of Dewan Committee Report.
Arrangements for monitoring for environmental impact for the project.
Data related to rehabilitation of project affected persons.
The Government of Gujarat also forwarded to the Government of India work plans on the following:
Forests and Wildlife
Fish and Fisheries
Health aspects
The work plan on forests and wildlife incorporated actions to be taken on the recommendations of the Inter-Departmental Committee headed by Dr. Dewan on soil conservation and afforestation works in the catchment area.
In March, 1986, a meeting was convened by the Ministry of Water Resources in order to discuss the issues of fisheries, flora/fauna, health, archaeology with the officers of Botanical Survey of India, Zoological Survey of India, Archaeological Survey of India and the officers of the various departments of the State and Centre to gear up the preparation of the environmental work plans. The next meeting was held on 11th April, 1986. The Secretary, Ministry of Environment and Forests, who chaired the meeting of senior officials, representatives of States and other agencies, sought additional information to be made available by 30th April, 1986 before assessment and management decision.
In October, 1986, the Ministry of Water Resources prepared and forwarded to the Ministry of Environment and Forests, a note on environmental aspects of the two projects and noted the urgency of the decision. It also considered the importance of the project, should the project to be taken at all, environmental aspects of the project and ultimately rehabilitation, compensatory afforestation, fauna and flora, catchment area treatment, public health aspect, prevention of water logging. It then considered what remained to be done and enumerated the same with time schedule as follows:
Madhya Pradesh to complete the detailed survey of population likely to be affected in all phases of N.S.P.
…..Three years
Maharashtra to prepare a detailed rehabilitation plan for 33 villages under phase 1 of SSP
…Three years
Madhya Pradesh to identify degraded forest lands twice the forest area to be submerged for compensatory afforestation.
…Six Months
Survey of flora in Narmada Valley assigned to Botanical Survey of India.
…Two years
Survey of Wildlife by Zoological Survey of India
…Two years
Aerial Photographs and satellite imagery to be analysed by all India Soil and Land Use Survey Organisation and National Remote Sensing Agency and critically degraded areas in catchment.
Field Surveys …Three years
Pilot studies to determine measures for CAT in 25000 ha. …Three years after aerial survey.
In this note two options were considered - one to postpone the clearance and the other was to clear it with certain conditions with appropriate monitoring authorities to ensure that the action is taken within the time bound programme. It was concluded that in the light of the position set out, it was necessary that the project should be cleared from the environmental angle, subject to conditions and stipulations outlines.
The Department of Environment and Forests made its own assessment though a note of the Secretary, Ministry of Environment and Forests. It took the view that following surveys/ studies as set out therein might take at lease 2-3 years. It noted in this regard that:
The estimate of Ministry of Water Resources on analysis of aerial photographs and satellite imageries as 2-3 years.
Catchment area treatment programme can be formulated by three years thereafter;
Wildlife census by Zoological Survey of India would take at least three years;
Survey by Botanical Survey of India would take three years.
It further took the view that it was essential that there should be a strong management authority. It finally concluded that if the Government should decide to go ahead with the project it should be done with provision of environmental management authority adequate power and teeth to ensure that environment management plan is implemented pari passu with engineering and other works. It concluded that effective implementation of the engineering and environmental measures simultaneously will go a long way and that such a project could be implemented by harmonizing environmental conservation needs with the development effort.
The Ministry of Environment and Forests had not given environment clearance of Narmada Sagar and Sardar Sarovar Dam despite all discussions which had taken place. The documents filed along with the affidavit of Shri P K Roy, Under Secretary, Prime Minister's Office dated 27th April, 2000 indicate that there was difference of opinion with regard to the grant of environmental clearance between the Ministry of Water Resources and the Ministry of Environment and Forests. This led to the matter being referred to the Prime Minister's Secretariat for clearance at the highest level. A note dated 20th November, 1986 prepared by the Ministry of Water Resources was forwarded to the Prime Minister Secretariat as well as to the Ministry of Environment and Forests after dealing with the environmental aspects relating to rehabilitation, catchment area treatment, command area development, compensatory afforestation, flora and fauna. This note indicated that there were two options with regard to the clearance of the said project. One was to await for two to three years for the completion of the operational plans and other detailed studies and the second option was that the project should be given the necessary clearance subject to the stipulation with regard to the action to be taken in connection with various environmental aspects and appropriate monitoring arrangements to ensure that the actions were taken in a time bound manner. The Ministry of Water Resources recommended that it should be possible to give environmental clearance of the project and ensure that the conditions are properly met through a process of clear assignment of responsibility and frequent monitoring. The modus operandi for instituting a monitoring system could be discussed at the meeting.
On 26th November, a meeting took place which was attended, inter alia, by the Secretary, Ministry of Water Resources, Ministry of Environment and Forests, Additional Secretary, Prime Minister Secretariat and representatives of the Governments of Madhya Pradesh and Gujarat regarding the environmental aspects of the Narmada Sagar and Sardar Sarovar Project. The minutes of the meeting, inter alia, disclosed "it was decided that the Government of Gujarat would identify lands for allocation to the project affected persons of Madhya Pradesh within a specified period of time. The meeting also envisaged the arrangement of a Monitoring and Enforcement Authority to monitor the project and to ensure that the actions on the environmental aspects proceed according to the schedule and pari passu with the rest of the project". The Authority was not to be mainly a advisory one but was to be given executive powers to enforcement including power to order stoppage of construction activity in the event of its being of the opinion that there was a lack of progress in action on the environment front.
On 19th December, 1986, the Secretary, Ministry of Environment and Forests sent to the Secretary to the Prime Minister a combined note on the environmental aspects of both the projects, namely Narmada Sagar and Sardar Sarovar Project. In this note, it was, inter alia, stated that there was absence and inadequacy on some important environmental aspects even though the Sardar Sarovar Project was in a fairly advance stage of preparedness. The note also recommended the establishment of the Narmada Management Authority with adequate powers and teeth to ensure that the Environment Management Plan did not remain only on paper but was implemented; and implemented pari passu with engineering and other works. In the end, in the note, it was stated as follows:
"If, despite the meagre availability of data and the state of readiness on NSP, the Government should decide to go ahead with the project it is submitted that it should do so only on the basis of providing a Management Authority as outlined above with the hope that the public opposition, not just by vested interests but by credible professional environmentalists, can be overcome. Effective implementation of the engineering and environmental measures simultaneously would go a long way to prove that even such a project can be implemented by harmonising environmental conservation needs with the development effort.
The choice is difficult but a choice has to be made."
Along with this note was the statement showing the cost and benefits of the Narmada Sagar and Sardar Sarovar dam. The same reads as follows:
|
"COSTS |
NARMADASAGAR |
SARDAR SAROVAR |
|
|
1. |
Dam construction |
Rs. 1400 crores (1981 price level) |
Rs. 4240 (1982 price level) |
|
2. |
Loss of forest |
Rs. 320 crores |
|
|
3. |
Environment cost of loss of forests |
Rs. 30923 crores |
+-Rs. 8190 crores |
|
4. |
Catchment Area development |
Rs. 300 crores |
Not available |
|
5. |
Command area development |
Rs. 243.7 crores |
Rs. 604.0 crores Rs. 300.0 crores (conjunctive use) |
|
6. |
Loss of Mineral Reserves |
---- |
--- |
|
7. |
Diversion of 42 km Railway line |
---- |
--- |
|
8. |
Population affected |
129396 (1981 census) |
86572 (Excluding population with land submerged for short period every year) |
|
9. |
Land submerged |
91378 ha |
39134 ha |
|
Benefits |
|||
|
10. |
Area irrigated Net cultural land |
123000 ha 140960 ha |
1792000 ha 2120000 ha |
|
11. |
Power Generations |
223.5 MW(firm power) 1000 MW (Installed capacity) |
300 MW 118.3 MW in 2023 1450 MW (Installed capacity) |
After a series of meetings held between the Secretary to Prime Minister's office as well as the Ministry of Water Resources, a detailed note dated 5th January, 1987 was prepared by Mrs. Otima Bordia, Additional Secretary to the Prime Minister. The notes opened by saying that Narmada Sagar and Sardar Sarovar multipurpose projects have been pending approval for a considerable amount of time. The States of Madhya Pradesh and Gujarat have been particularly concerned and have been pressing for their clearance. The main issues of environmental concern related to the rehabilitation of the affected population, compensatory afforestation, treatment of the catchment area, command area development, pertaining particularly to drainage, water logging and salinity. The said note mentioned that the Department of Environment and Forests had sent a note with the approval of the Minister for Environment and Forests and had recommended conditional approval to the Narmada Sagar and Sardar Sarovar Projects subject to three conditions:
Review of design parameters to examine the feasibility of modifying the height of the dam;
Preparation in due time, detailed and satisfactory plans for rehabilitation, catchment area treatment, compensatory afforestation and command area development;
Setting up of Narmada Management Authority with adequate power and teeth to ensure that environmental management plans are implemented pari passu with engineering and other works.
It is further stated in the note that the Ministry of Water and the State Governments had no difficulty in accepting conditions (ii) and (iii). With regard to review of design parameters and dam height, the Ministry of Water Resources had examined the same after taking into consideration the comments of the Central Water Commission and concluded that the reduction of the FRL of the Narmada Sagar Project would not be worthwhile. The Secretary to the Prime Minister had discussed the matter with the Secretary, Ministry of Water Resources and Secretary, Ministry of Environment and Forests and it was agreed that the recommendation of the Minister of Environment and Forests of giving clearance on the condition that items (ii) and (iii) referred to hereinabove be accepted. The note also stated that in view of the technical report, reduction in the dam height did not appear to be feasible. This note of Mrs. Otima Bordia recommended that the Prime Minister's approval was sought on giving conditional clearance. On this note, Mrs. Serla Grewal, Secretary to the Prime Minister noted as follows:
"Proposal at para 17 may kindly be approved. This project has been pending clearance of the last 7 years and both the C.M.s of Gujarat and Madhya Pradesh are keenly awaiting the clearance of the same. The agency, which is proposed to be set up to monitor the implementation of this project, will fully take care of the environmental degradation about which P.M. was concerned. The Ministry of Environment and Forests have recommended clearance of this project subject to conditions which will take care of P.M.'s apprehensions. I shall request Secretary, Water Resources, who will be Chairman of the Monitoring Agency, to see that no violation of any sort takes place and P.M.'s office will be kept informed of the progress of this project every quarter. The matter is urgent as last week C.M. Gujarat had requested for green signal to be given to him before 20th January.
P.M. may kindly approve."
The Prime Minister Shri Rajiv Gandhi, instead of giving the approval, made the following note:
"Perhaps this is a good time to try for a River Valley Authority. Discuss".
It appears that the Ministry of Environment and Forests gave its clearance to the setting up of Inter-Ministerial Committee and on 8th April, 1987, following note was prepared and forwarded to the Prime Minister.
"This case has got unduly delayed. P.M. was anxious that speedy action should be taken. As such, since the Ministry of Environment have given its clearance subject to setting up of an Inter-Ministerial Committee as indicated at 'A' above, we may give the necessary clearance. The three Chief Ministers may be requested to come over early next week to give their clearance in principle for the setting up of a River Valley Authority so that simultaneous action can be initiated for giving practical shape to this concept. The clearance of the project, however, should be communicated within two weeks as I have been informed by Shri Shiv Shankar and Shri Bhajan Lal that interested parties are likely to start an agitation and it is better if clearance is communicated before mischief is done by the interested parties.
Along with another affidavit of Shri P K Roy, Under Secretary, Prime Minister's office, dated 2nd May, 2000, some correspondence exchanged between Legislature and the Prime Minister has also been placed on record relating to the granting of the environmental clearance by the Prime Minister. On 31st March, 1987, Shri Shanker Sing Vaghela, the then Member of Parliament, Rajya Sabha had written a letter to the Prime Minister in which it was, inter alia, stated that the foundation stone for the Narmada Project had been laid 25 years ago by the late Pandit Jawahar Lal Nehru and that after the Tribunal's Award, Mrs. Indira Gandhi had cleared the project in 1978, but still the environmental clearance was now being delayed on account of so-called environmental problems. It was further stated in his letter that the Sardar Sarovar Project, when completed, will solve more of the pressing problems of environment than creating them. To this letter of Shri Vaghela, the then Prime Minister sent a reply dated 8th April, 1987 stating as follows:
"I have seen your letter of 31st March regarding the Narmada Project. All aspects have to be carefully considered before decisions are taken on a project of this size. This is being done.
The environment and ecological factors cannot be disregarded. We cannot also dismiss the needs of our tribal people. Safeguards are required to ensure that rehabilitation plans are effective.
All these aspects are being examined and a decision will be taken soon."
On 30th April, 1987, a press note was released by the Government of India, in which it was stated that in a meeting presided over by the Prime Minister, it was agreed by the Chief Ministers of Madhya Pradesh and Gujarat and representatives of Maharashtra Government that, a high level River Valley Authority would be set up for the control and development of the river basin. This press note also stated that the Narmada Sagar and the Sardar Sarovar Project on the river Narmada had been cleared. Soon, thereafter Shri Ahmad Pate,, Member of Parliament from Gujarat wrote a letter dated 14th April, 1987 to Shri Rajiv Gandhi expressing his gratitude for according clearance to the Narmada multi-purpose project. This letter was replied to on 22nd April, 1987 by Shri Rajiv Gandhi who thanked Shri Patel for writing his letter dated 14th April, 1987 regarding the Narmada project. On 20th April, 1987, Shri Shanker Singh Vaghela wrote another letter to the Prime Minister. While thanking him for clearing the project, it was stated that there was apprehension about the environment and ecological factors and also about the needs of the tribal people. The Prime Minister was requested "to clarify to the people of Gujarat whether or not these aspects have finally been cleared or not and all the doubts on this front have been finally set at rest or not". On 4th May, 1987 the Prime Minister replied to this letter in which it was stated as follows;
There should be no grounds for any misunderstanding in this regard. The Narmada Project has been cleared while at the same time ensuring that environmental safeguards will be enforced and effective measures taken for the rehabilitation of tribals. You could ask the Ministry of Water Resources or the State Government for details."
Lastly, we need make reference to a letter dated 10th June, 1987 written by Smt. Chandraben Sureshbhai Shrimali, an MLA of Gujarat and the reply of the Prime Minister thereto. In the said letter dated 10th June, 1987, Smt. Shrimali thanked the Prime Minister for clearing the Narmada Project and it was stated that the dry land of Gujarat and Saurashtra would be fertilised through Narmada Yojna. To this, reply dated 30th June, 1987 of the Prime Minister was as follows:
Thank you for your letter of 10th June. The visit to Surendranagar was useful and educative. We are all looking forward to the early implementation of the Sardar Sarovar Project. The question of environmental protection also needs serious attention. I wish you and the people of Surendranagar a good monsoon.
From the documents and the letters referred to hereinabove, it is more than evident that the Government of India was deeply concerned with the environmental aspects of the Narmada Sagar and Sardar Sarovar Project. Inasmuch as there was some difference of opinion between the Ministries of Water Resources and Environment and Forests with regard to the grant of environmental clearance, the matter was referred to the Prime Minister. Thereafter, series of discussions took place in the Prime Minister's Secretariat and the concern of the Prime Minister with regard to the environment and desire to safeguard the interest of the tribals resulted in some time being taken. The Prime Minister gave environmental clearance on 13th April, 1987 and formal letter was issued thereafter on 24th June, 1987.
It is not possible, in view of the aforesaid state of affairs, for this Court to accept the contention of the petitioner that the environmental clearance of the project was given without application of mind. It is evident, and in fact this was the grievance made by Shri Vaghela, that the environmental clearance of the project was unduly delayed. The Government was aware of the fact that number of studies and data had to be collected relating to environment. Keeping this in mind, a conscious decision was taken to grant environmental clearance and in order to ensure that environmental management plans are implemented pari passu with engineering and other works, the Narmada Management Authority was directed to be constituted. This is also reflected from the letter dated 24th June, 1987 of Shri Mudgal giving formal clearance to the project.
Re: OTHER ISSUES RELATING TO ENVIRONMENT
Prior to the grant of the environmental clearance on 24th June, 1987, sufficient studies were made with regard to different aspects of environment on the basis of which conditional clearance was granted on 24th June, 1987, one of the condition of clearance being that the balance studies should be completed within a stipulated time frame. According to the Government of Gujarat, the conditions imposed in the environmental clearance granted on June 24, 1987 were:
The NCA would ensure that the environmental safeguard measures are planned and implemented pari passu with the progress of work on the project.
The detailed survey/ studies assured will be carried out as per the schedule proposed and details made available to the department for assessment.
The catchment area treatment programme and rehabilitation plans be so drawn so as to be completed ahead of reservoir filling.
The department should be informed of progress on various works periodically.
It was further submitted by the Government of Gujarat that none of these conditions were linked to any concrete time frame.
The first condition casts a responsibility on the NCA to ensure that the environmental aspects are always kept in view. The best way to attain the first and the fourth condition - was to create an environment sub-group headed by the Secretary in the Ministry of Environment and Forest.
The second condition - the conducting of surveys by its very nature - could not made time bound. The surveys related to various activities to undo any damage or threat to the environment not only by the execution of the project but in the long term. Therefore, any delay in conduct of surveys was not critical. Besides, perusal of the list of status report on environment shows that a large number of surveys were carried out right from 1983 and also after 1987.
The third condition has already stood fully complies with as observed b Environment Sub-Group.
The fourth condition again involved keeping the department informed.
It was submitted that the concept of "lapsing" is alien to such conditions. In other words, formal environmental and forest clearances granted by the Ministry of Environment and Forests, Government of India are not lapsed and are very much alive and subsisting.
With regard to the lapsing of the clearance granted in 1987, it was contended by Shri Harish Salve that a letter dated 25th May, 1992 was written by the secretary, Ministry of Environment and Forests, Government of India to the Secretary, Ministry of Water Resources stating, inter alia, that the conditions of clearance of the project were not yet met and, therefore, a formal request for extension of environmental clearance, as directed by Review Committee of Narmada Control Authority, may be made and failing which, a formal notification may be issued revoking the earlier clearance. It is, however an admitted position that no formal notification has ever been issued revoking and/or cancelling the aforesaid two clearances at any point of time by the Ministry of Environment and Forests, Government of India. The Secretary, Ministry of Environment and Forests has continued to hold and chair the meetings of Environment Sub-Group, Narmada Control Authority closely monitoring the execution of SSP for ensuring that environmental safeguard measures are implemented pari passu with the progress of work. On 11th August, 1992, a letter was written by Narmada Control Authority to the Secretary, Ministry of Environment and Forests sending action plan and status in respect of environmental safeguard measures taken and also stating amongst other details, the following:
"A number of letters were exchanged between the MOWR and MOEF and a great deal of discussion took place both in the Environment Sub-Group and NCA as to whether an application for extension of time as above is at all necessary. After a detailed discussion in the last NCA meeting on 25th July, 1992, it has been decided that NCA should clearly indicate the additional time required for the completion of the remaining studies like flora and fauna and some aspects of fisheries and a revised action plan thereon be also sent expeditiously."
XXXXX
XXXXX
"Keeping in view the fact and circumstances mentioned above, I request you to kindly agree to the schedule of the studies and the follow up actions as presented here. A brief account of the action plan together with bar charts are enclosed, presenting a pictorial view."
On 15th December, 1992, a letter was written to the Secretary, Ministry of Environment and Forests, more particularly stating as under, amongst other things:
"The Narmada Control Authority has already prepared an action plan and status on the environmental measures of Sardar Sarovar Project and submitted to the Ministry of Environment and Forest vide their letter No. NCA/EM/683 dated 11.8.1992 for concurrence. As may be seen from their report on action, so far there is no safeguard measures.
During field season of every year this will be closely reviewed to attain pari passu objectives so that the submergence during monsoon is taken care of.
The above action are scheduled to the completed by June, 1993. No doubt, action in Maharashtra is lagging. The matter was taken up with the Chief Secretary of Maharashtra. A copy of his reply dated 7.11.1992 is enclosed. You will observe that the reasons for the lag are largely due to the un-cooperative and agitational approach adopted by some people.
Taking all these into account, you will appreciate that the action plans are adequate."
The Minster for Water Resources, Government of India wrote a letter on 27th January, 1993 to the Minister of State for Environment and Forests stating that there had been no violation of environmental safeguard measures. On 7th July 1993, the Secretary, Ministry of Water Resources, Government of India wrote a letter to the Secretary, Ministry of Environment and Forests, Government of India, more particularly stating as under:
"Progress of all the environmental works is summarised in the sheet enclosed herewith. I share your concern for initial delay in some of the studies but now it seems that the work has been in full swing. However, there is a need to keep a close watch and I am advising the NCA for the same."
By letter dated 17th September, 1993, the Minister of State for Environment and Forests, Government of India wrote to the Minister for Water Resources, Government of India appreciating the efforts made by the concerned State Governments in making the environmental plans. The exchange of the aforesaid correspondence and the conduct of various meetings of the Environment Sub-group from time to time under the Chairmanship of the Secretary, Ministry of Environment and Forests, disspells the doubt of the environment clearance having been lapsed. In other words, there could not have been any question of environmental clearance granted to SSP being lapsed more particularly when the Environment Sub-group had been consistently monitoring the progress of various environmental works and had been observing in its minutes of various meetings held from time to time, about its analysis of the works done by the respective States in the matter of the status of studies, surveys and environmental action plans in relation with:
Phased catchment area treatment;
Compensatory afforestation;
Command area development;
Survey of flora, fauna, etc;
Archeological and anthropological survey;
Seismicity and rim stability of reservoir;
Health aspects and
Fisheries development of SSP and NSP reservoirs.
Sh. Shanti Bushan in the course of his submissions referred to the report of the Morse Committee in support of his contentions that the project was flawd in more ways than one.
The Morse Committee was constituted, as already noted, by the World Bank. Its recommendations were forwarded to the World Bank. Apart from the criticism of this report from other quarters, the World Bank itself did not accept this report as is evident from its press release dated 22nd June, 1992 where it was, inter alia, stated as follows:
"The Morse Commission provided a draft of its report to the Bank for management comments several weeks prior to the final release of the document. About two weeks before this release, the commission provided draft of its finding and recommendations. The final version of the report is the sole responsibility of its authors; the report was not cleared by the World Bank.
On resettlement and rehabilitation (R&R), Bank management agrees with the description of the R&R situation in each of the three states and with the report's conclusions about the shortcomings in the preparation and appraisal of the project's R&R aspects. We also agree that work should have been done earlier on the issue of people affected by the canal in Gujarat. However, we do not share the view that resettlement would be virtually impossible even if Maharashtra and Madhya Pradesh adopted the liberal resettlement package provided for displaced people by the State of Gujarat. Given the experience so far, and the fact that most of the impact of submergence on people will not occur until 1997, there is still time to develop meaningful R&R packages and programs in consultation with the affected peoples. Efforts are being intensified to achieve this.
On environment, bank management agrees with the independent review on the need for a more effective central management in the Narmada Basin on environment impact studies and mitigation programmes. Management also agrees on the need to accelerate work on estuary studies and health matters in Gujarat. However, management does not share the review's conclusions about the environmental severity of the study delays. Command area issues are being addressed, including issues of water logging and salinity. On water availability (hydrology), Bank Management disagrees with the findings that there is insufficient impoundment of water upstream of the Sardar Sarovar Dam site to make the irrigation system work as designed."
The Government of India vides its letter dated 7th August, 1992 from the Secretary, Ministry of Environment and Forests did not accept the report and commented adversely on it.
In view of the above, we do not propose while considering the petitioners' contentions, to place any reliance on the report of Morse Committee.
It must be submitted on behalf of the petitioners that the command area development was an important aspect as the benefits of the project depended on this and if proper studies and plans were not done and not implemented, the very areas that were supposed to benefit will end up being rendered unfit for cultivation and the water logging and salinisation could refer vast areas of the command unproductive. It was also submitted that still there was no integrated command area environment impact assessment. After referring to the status reports and studies regarding the command area development, it was submitted that there was need for some independent agency to see whether there was ground to believe that the proposed measures will work or not. It was contended that master plan for drainage and command area development was still not in place and even the full studies had not been done.
While refuting the aforesaid contentions it was argued on behalf of the learned counsel for the respondents that the SSP will provide irrigation water for a cultivable command area of 1.9 million hectares in Gujarat and 75,000 hectares in Rajasthan. The introduction of fresh water to the drought-prone areas of Gujarat will create obvious benefits for the farming communities. In order to safeguard these benefits, control and monitoring was suggested by the Secretary, Ministry of Environment and Forests and Chairman of the Environment Sub-group in the following areas from time to time:
Drainage, water logging and soil salinity;
Water quality;
Forest loss;
Potential impact on flora and fauna;
Effects on public health;
Socio-economic impacts.
Pursuant thereto fifty in-depth studies had been carried out by the State Governments of Gujarat and Rajasthan and some of the studies were still in progress. One of the main objectives of carrying out these studies was to prevent excessive use of ground water and water-logging.
There is no reason whatsoever as to why independent experts should be required to examine the quality, accuracy, recommendations and implementation of the studies carried out. The Narmada Control Authority and the Environmental Sub-group in particular have the advantage of having with them the studies which had been carried out and there is no reason to believe that they would not be able to handle any problem, if and when, it arises or to doubt the correctness of the studies made.
It was submitted by Sh. Shanti Bhushan that the catchment area treatment programme was not to be done pari passu but was required to be completed before the impoundment. This contention was based on the terms of the letter dated 24th June, 1987 wherein conditional environmental clearance was granted, inter alia, on the condition that "the catchment area treatment programme and rehabilitation plans be drawn so as to be completed ahead of reservoir filling". Admittedly, the impounding began in 1994 and the submission of Sh. Shanti Bhushan was that catchment area treatment programme had not been completed by them and, therefore, this very important condition had been grossly violated. Reference was also made to the Minutes of the Environment Sub-group meetings to show that there had been slippage in catchment area treatment work.
The clearance of June, 1987 required the work to be done pari passu with the construction of the dams and the filling of the reservoir. The area wherein the rainfall water is collected and drained into the river or reservoir is called catchment area and the catchment area treatment was essentially aimed at checking of soil erosion and minimising the silting in the reservoir within the immediate vicinity of the reservoir in the catchme