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

- **Citation:** [2003] Supp. 3 S.C.R. 152
- **Court:** Supreme Court of India
- **Decided:** 2003
- **Bench:** S. Rajendra Babu, D.M. Dharmadhikari, G.P. Ma Thur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-d-ja-yal-and-anr-v-union-of-india-and-ors-19300
- **Pages:** 72

## Headnote

Constitution of India, Article 32-Public Interest Litigation-PIL
seeking directions for conducting tests to ensure safety for Tehri Dam and
stoppage of project till conditions attached to environmental clearance
C complied with-Held, the conception and decision to undertake a project
is a policy decision and the only role the court has to play is to ensure
that the system works in the manner envisaged: courts are ill-equipped to
adjudicate on a policy decision.
D
Constitution of India, Articles 21, 32-PIL seeking court's direction
on the environmental aspects of the Tehri Dam-High Level Committee set
up by Government concluding that dam design safe and all danger arising
out of seisimicity taken note of-Matter referred to Seisimic Expert who
concurred that over all factor of safety of the dam was high-Another
Expert Group in 1991 recommending acceptance of report of High Level
E Committee and Seisimic Expert-A farther Group of five Experts examining
safety of dam and submitting report in February 1998 that present design
was structurally safe but as a matter of abundant caution recommending
conduct of two other studies-Government of India, in consultation with
Central Water Commission and National Committee on Seisimic Design
F Parameters deciding there was no necessity to undertake the two additional
studies-Held (per majority), Court cannot advise Government to go for
farther tests unless arbitrariness or irrationality is attributed to that decision;
the consideration in such cases is in the process of decision and not its
merits-Further held (per majority), when there is no difference of opinion
G among experts as to safety of dam, Court cannot sit in judgment over such
decision.
Constitution of India, Articles 21, 32-Protection of Environment
vis-a-vis sustainable deve/opment-P/L seeking directions regarding disaster
management and rehabilitation of persons displaced by Tehri Dam
H Project-Petitioner objecting to components of rehabilitation package as
152
-
..
N.D. JA YAL v. U.O.I.
153
being discriminatory and unreasonable-Government acting on A
recommendations of the Hanumantha Rao Committee (HRC)-Held, these
were matters of policy and Court cannot interfere with the same; components
of rehabilitation package not unreasonable.
Constitution of India, Articles 21 and 32-Protection of Environment B
vis-ii-vis sustainable development-PIL alleging non-compliance with
conditions attached to environmental clearance of Tehri Dam ProjectGovernment assuring the court that high level inter-ministerial review
committee would be constituted to monitor various aspects-Held (per
majority), no impoundmant to be allowed till all conditions of environmental
clearance are complied-Further held (per majority) petitioners have not C
established that Project is being carried on without complying with
conditions of clearance.
Constitution of India, Articles 142, 226-PIL seeking compliance
with conditions of environmental clearance of Tehri Dam Project-Cases D
transferred to High Court of Uttaranchal for monitoring by Division Bench
to ensure conditions of environmental clearance are fulfil-Practice and
Procedure.
Words & Phrases :
'Pari passu'-Meaning of-Explained.
E
Close to the Garhwal town of Tehri in the Himalayas, at the
confluence of two rivers Bhagirathi and Bhilanganga, a three billion
dollar clay-core rockfill dam is being constructed resulting in a water F
spread over 42.5 sq.m. which will affect totally or partially nearly 100
villages including Tehri town. As many as 90,000 families would be
relocated as result of the dam project. The Government of India and
State ofUttaranchal claimed that the dam project would generate 2400
kw of electricity and create irrigation facilities for 2070 lakh hectares G
of land. There were plans also to supply 500 cusecs of water to New
Delhi. A PIL was filed in 1985 in this Court by the Tehri Bandh Virodh
Sangharsh Samiti seeking to stop the construction of the dam on the
ground that it posed a grav

## Text

_Characters 0–39,595 of 166,466. This is a partial read: ask again with offset=39595 for what follows._

A
B
N.D. JA YAL AND ANR.
v.
UNION OF INDIA AND ORS.
SEPTEMBER I, 2003
[S. RAJENDRA BABU, D.M. DHARMADHIKARI
AND G.P. MA THUR, JJ.]
Constitution of India, Article 32-Public Interest Litigation-PIL
seeking directions for conducting tests to ensure safety for Tehri Dam and
stoppage of project till conditions attached to environmental clearance
C complied with-Held, the conception and decision to undertake a project
is a policy decision and the only role the court has to play is to ensure
that the system works in the manner envisaged: courts are ill-equipped to
adjudicate on a policy decision.
D
Constitution of India, Articles 21, 32-PIL seeking court's direction
on the environmental aspects of the Tehri Dam-High Level Committee set
up by Government concluding that dam design safe and all danger arising
out of seisimicity taken note of-Matter referred to Seisimic Expert who
concurred that over all factor of safety of the dam was high-Another
Expert Group in 1991 recommending acceptance of report of High Level
E Committee and Seisimic Expert-A farther Group of five Experts examining
safety of dam and submitting report in February 1998 that present design
was structurally safe but as a matter of abundant caution recommending
conduct of two other studies-Government of India, in consultation with
Central Water Commission and National Committee on Seisimic Design
F Parameters deciding there was no necessity to undertake the two additional
studies-Held (per majority), Court cannot advise Government to go for
farther tests unless arbitrariness or irrationality is attributed to that decision;
the consideration in such cases is in the process of decision and not its
merits-Further held (per majority), when there is no difference of opinion
G among experts as to safety of dam, Court cannot sit in judgment over such
decision.
Constitution of India, Articles 21, 32-Protection of Environment
vis-a-vis sustainable deve/opment-P/L seeking directions regarding disaster
management and rehabilitation of persons displaced by Tehri Dam
H Project-Petitioner objecting to components of rehabilitation package as
152
-
..
N.D. JA YAL v. U.O.I.
153
being discriminatory and unreasonable-Government acting on A
recommendations of the Hanumantha Rao Committee (HRC)-Held, these
were matters of policy and Court cannot interfere with the same; components
of rehabilitation package not unreasonable.
Constitution of India, Articles 21 and 32-Protection of Environment B
vis-ii-vis sustainable development-PIL alleging non-compliance with
conditions attached to environmental clearance of Tehri Dam ProjectGovernment assuring the court that high level inter-ministerial review
committee would be constituted to monitor various aspects-Held (per
majority), no impoundmant to be allowed till all conditions of environmental
clearance are complied-Further held (per majority) petitioners have not C
established that Project is being carried on without complying with
conditions of clearance.
Constitution of India, Articles 142, 226-PIL seeking compliance
with conditions of environmental clearance of Tehri Dam Project-Cases D
transferred to High Court of Uttaranchal for monitoring by Division Bench
to ensure conditions of environmental clearance are fulfil-Practice and
Procedure.
Words & Phrases :
'Pari passu'-Meaning of-Explained.
E
Close to the Garhwal town of Tehri in the Himalayas, at the
confluence of two rivers Bhagirathi and Bhilanganga, a three billion
dollar clay-core rockfill dam is being constructed resulting in a water F
spread over 42.5 sq.m. which will affect totally or partially nearly 100
villages including Tehri town. As many as 90,000 families would be
relocated as result of the dam project. The Government of India and
State ofUttaranchal claimed that the dam project would generate 2400
kw of electricity and create irrigation facilities for 2070 lakh hectares G
of land. There were plans also to supply 500 cusecs of water to New
Delhi. A PIL was filed in 1985 in this Court by the Tehri Bandh Virodh
Sangharsh Samiti seeking to stop the construction of the dam on the
ground that it posed a grave threat to t~e safety and lives of the people
in the surrounding villages and downstream.
H
A
154
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
As a result of public protest the then Prime Minister of India
directed an in-depth review of the project by an expert group constituted
by the Ministry of Science and Technology. The technical group which
submitted its report in 1986 recommended abandonment of the project
despite an expenditure of Rs. 2006 crores already having been incurred
B on it. After the USSR Government agreed to provide technical and
financial assistance, the project was taken over in July 1988 by a joint
venture company of the Government of India and the Government of
Uttar Pradesh viz., the Tehri Hydro Development Corporation (THDC).
In February 1990, the Environmental Appraisal Committee (EAC) of
C the Ministry of Environment and Forests (MoEF) recorded a unanimous
conclusion that taking into CO,/Jsideration the risks and hazards involving
ecological and social impact, the Tehri project did not merit environment
clearance and should be dropped. Thereafter the question of continuance
of the project was entrusted to a Committee of Secretaries which
reassigned the task to the Department of Mines. Based on the opinion
D of a High Level Committee consisting of Prof. Jai Krishna, an
Earthquake Engineer, and despite the dissenting opinions of Dr.V.K.
Gaur, a seismologist and Dr. N. Brune, the foreign expert, the MoEF
on July 19, 1990 gave a conditional clearance to the project. Among
others, the final condition was: 'If the completion ofstudies, formulation
E of the action plan and their implementation to be scheduled in such
a way that their execution is pari passu with the engineering works is
not adhered to, all engineering works of the project should be stopped
and this condition will be enforced under the provisions of the
Environment (Protection) Act 1986 (EPA).' On November 7, 1990 the
F PIL filed in 1985 was dismissed by this court holding that all aspects
of the safety for the dam had been taken into account by Indian and
foreign experts and there was no ground to stop the construction (Tehri
Bandh Virodhi Sangarsh Samiti v. Union of India, (1992) Supp 1 SCC
44).
G
The petitioner gave notice in January 1991 under s. 19-B EPA to
the MoEF stating that since there was non-compliance with the.
conditions of the clearance, the work on the dam should be stopped
forthwith. In April 1991 the MoEF expressed dissatisfaction on the
failure to comply with the conditions of clearance and directed THDC
H to submit a comprehensive rehabilitation plan for effective
...
N.D. JA YAL v. U.0.1.
155
implementation. In July 1991 a report was submitted by an Expert A
Group consisting of the Director, Geological Survey of India
recommending that the report of the High Level Committee and
opinions of Prof. Jai Krishna be accepted.
On October 21, 1991 an earthquake measuring 6.1 on the Richter B
scale hit the Garhwal region causing massive damage to the villages
of Uttarkashi and Chamoli and killing around 2000 people. This
revived the protests and in December 1991 the present petition was
filed which raised, inter alia, the issue of the safety of the dam, its
adverse impact on the environment, displacement of people and their
rehabilitation. It was urged that since the condition of environmental C
clearance was not fulfilled, there was no legal justification to allow
further construction of the dam.
In a communication dated October 21, 1994, the MoEF noted that
'implementation of various safeguard measures were lagging far D
behind'. In July 1996, upon orders made by this Court and after
intervention by Sri Sunderlal Bahuguna, an environmental activist
spearheading the movement against the construction of the dam, the
Central Government appointed two expert committees----one to examine
the safety aspects and the other headed by Prof. C.H. Hanumantha E
Rao, to examine the environment and rehabilitation aspects. In a
report submitted on February 18, 1998 four of the five experts of the
committee on safety concluded that the present design of the dam is
expected to be structurally safe to withstand the maximum credible
earthquake during the economic performance life of the dam reservoir
system'. Nevertheless, they suggested out of abundant caution that : F
(i) 3-D non-linear analysis of the dam to evaluate its performance
against maximum credible earthquake: and (ii) a simulated dam-break
analysis to ensure that in the unlikely event of an uncontrolled release
of water the consequences are minimum, be conducted. The
Hanumantha Rao Committee in a report submitted in October 1997 G
recommended inter alia, that each displaced family be given 2 acres of
land; where displaced families had already shifted they be given cash
compensation instead of land; the newly recognised displaced families
also be given cash instead of land; in partially affected villages, the
affected families will have the option of settling in the unaffected part H
156
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A of the same village on relocating elsewhere. On February 2, 1999 in
an affidavit filed in this Court, the Government of India stated that
it accepted the recommendations of both committees but that there was
no necessity to undertake the further steps recommended by the
committee on safety.
B
The petitioners first urged the Court to issue necessary directions
to conduct further safety tests. Secondly, they alleged that the concerned
authorities had not complied with the conditions attached to the
environmental clearance and wanted the project stopped till the same
was complied with. Lastly, they requested the Court to look into the
C rehabilitation aspects.
D
Disposing of the petitions,
HELD: (per Rajendra Babu, J. for himself and G.P. Mathur, J.):
I.I. This Court cannot sit in judgment over the cutting edge of
scientific analysis relating to the safety of any project. Experts in
science may themselves differ in their opinions while taking decisions
on matters related to safety and allied aspects. The opposing viewpoints
of the experts will also have tu be given due consideration after full
E application of mind. When the Government or the concerned authorities
after due consideration of all viewpoints and full application of mind
took a decision, then it is not appropriate for the Court to interfere.
Such matters must be left to the mature wisdom of the Government
or the implementing agency. It is their forte. [170-C-E)
F
1.2. In such cases, if the situation demands, the Courts should take
only a detached decision based on the pattern of the well-settled
princii;les of administrative law. If any such decision is based on
irrelevant consideration or non-consideration of material or is
thoroughly arbitrary, then the Court will get in the way. Here the only
G point to consider is whether the decision-making agency took a wellinformed decision or not. If the answer is 'yes', then there is no need
to interfere. The consideration in such cases is in the process of decision
and not in its merits. (170-F, F)
H
1.3. Once such a considered decision is taken, the proper execution
N.D. JA YAL V. U.0.1.
157
of the same should be undertaken expeditiously. It is for the Government A
to decide how to do its job. When it has put a system in place for the
execution of the project and such a system cannot be said to be arbitrary,
then the only role which the Court has to play is to ensure that the system
works in the manner it was envisaged. It is made clear in that decision
that the questions whether to have an infrastructural project or not and B
what is the type of projectto be undertaken and how it has to be executed,
and part of policy-making process and the courts are ill-equipped to
adjudicate on a policy decision so undertaken. (164-F-G)
1.4. The Courts have a duty to see that in the undertaking of a C
decision, no law is violated and people's fundamental rights as
guaranteed under the Constitution are not transgressed upon except
to the extent permissible under the Constitution. When a law has been
enacted in relation to the protection of environment and such law is
being given effect to and there is no challenge to such law, the duty
of the Courts would be to see that the Government and other D
respondents act in accordance with law and there is no other obligation
for the Court to examine further in the matter. [164-H, 165-A, BJ
1.5. At this penultimate stage of the proceedings, it is too late in
the day to think as to why the decision was taken to construct. The E
project or decisions have been taken to continue the proje!!t though at
one stage it was thought it would not be appropriate to continue the
sam1:. (165-H]
Narmada Bachao Ando/an v. Union of India, [2000) 10 sec 664, F
followed.
BALCO Employees' Union (Regd.) v. Union of India, [2002) 2 SCC
333 and Tehri Bandh Virodhi Sangarsh Samiti v. State of UP., (1992)
Supp. 1 SCC 44, referred to.
G
2. The safety aspects of the dam need not be re-examined. The
necessity or effectiveness of conducting 30 Non-Linear Test or Dam
Break Analysis were taken into account by the Government and if the
Government decided not to conduct such tests upon the opinion of the
concerned expert bodies, then the Court cannot advise the Government H
158
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A to go for such tests unless malajides, arbitrariness or irrationality is
attributed to that decision. These are matters of policy and when the
Government takes such a decision bearing in mind several aspects, this
Court should not interfere with the same. [169-H, 170-A, BJ
B
3.1. The right to development includes the whole spectrum of civil,
cultural, economic, political and social process, for the improvement
of peoples' well-being and realization of their full potential. It is an
integral part of human right. Construction of a dam or a mega project
is definitely an attempt to achieve the goal of wholesome development.
Such works could very well be treated as integral component for
C development. (173-C)
3.2. The adherence of sustainable development principle is a sine
qua non for the maintenance of the symbiotic balance between the
rights to environment and development. Right to environment is a
D fundamental right. On the other hand right to development is also one.
Here the right to 'sustainable development' is to be treated an integral
part of 'life' under Article 21. (173-D, E)
A.P. Pollution Control Board v. Prof M.V. Nayudu (Retd.), (1999)
E 2 sec 718; Ve/lore Citizens Welfare Form v. Union of India, (1996) 5
SCC 647; MC. Mehta v. Union of India, (2002] 4 SCC 356; Samata v.
State of Andhra Pradesh, (1997] 8 SCC 191; Madhu Kishwar v. State of
Bihar, [1996] 5 SCC 125; State of Himachal Pradesh v. Ganesh Wood
Products, (1995) 6 SCC 363; MC.Mehta v. Kamal Nath, (1997) 1 SCC
F 388 and MC. Mehta v. Union of India, (2001] 3 sec 756, referred
to.
4.1. No impoundment would be allowed until all the conditions in
the Environmental Clearance Certificate of the Tehri Dam dated July
19, 1990 are complied with and stand fulfilled. The condition of pariG passu implementation of conditions prior to the commissioning of the
project shall be closely monitored under the existing mechanism set up
by MoEF and the project authorities will ensure that prior to closing
of diversion tunnels TlITT for impoundment of the reservoir, evacuation,
resettlement and rehabilitation are completed in all respects. In
H addition, the catchment area treatmeet of direct draining areas shall
N.D. JA YAL v. U.0.1.
159
be completed and the project authority will obtain clearance from A
MoEF before closing the outlet at EL 700 M. It is only after the
completion of the conditions, impoundment would start. [200-D, 8-C)
4.2. Petitioners have not established nor is there any material to
conclude that the project work is being carried on without complying B
with the conditions of clearance. The status report filed by the Union
of India indicates that there is substantial compliance with all the
conditions. [200-G]
5. To ensure that all the conditions for environmental clearance
are fulfilled and for proper monitoring, all these cases are transferred C
to the High Court of Uttaranchal to be dealt with by a Division Bench.
The High Court shall deal with these matters as if filed before it and
shall be at liberty to pass any orders. It shall not open to rexamine the
matters such as safety of the dam and other aspects relating to
implententation of conditions contained in the Government orders
which have been decided in this case. [200-H, 201-A, BJ
D
Indian Council for Enviro-Legal Action v. Union of India, [1996) 5
SCC 281; ML. Sud v. Union of India, (1992) Supp. 2 SCC and Mohan
Chand v. Union of India, [1995) Supp., 3 SCC 425, followed.
Per Dharmadhikari, J. (dissenting):
1.1. When such projects are undertaken, there are competing
claims of technocrats and engineers eager to put the country on the
path of development and environmentalists who see a serious danger
E
to ecology and environment. These are the two conflicting claims and F
aspects which need Court's intervention for a balanced approach and
consequential remedial action. (208-E)
1.2. The Central Government shall constitute a Committee of
Experts for the purpose of investigating, ascertaining and reporting
whether the pari passu condition laid down in the environment G
clearance of the project have been fulfilled or not. Wherever certain
conditions for clearance are imposed they are to be strictly adhered
to. If this is not done before the dam is allowed to be filled, adverse
impacts caused 110 environment would be irr~versible and would not
be compensated because of the severe scale of the ecological intervention. H
160
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A The mistake that might have been done in the past with regard to other
similar large and small dams should not be allowed to be repeated in
the Tehri Dam Project which is different from otl\er dam projects in
plains. (214-C, D)
Karjan Jalasay Yojana Assargrasth Shakhar Ane Snagharsh Samiti
B v. State of Gurajat, AIR (1987) SC 532, referred to.
1.3. Until 3-D non-linear analysis and dam break analysis are
completed as recommended by the committee on safety, diversion
tunnels Tlff2 for impoundment of the reservoir shall not be closed.
C If the safety aspects are not fully taken care of and the command area
treatment is not done to the desired level or standard, the consequence
may be catastrophic and beyond repair. (223-B, 214-E]
D
Environmental Solution and Development by Chander Pal, pp. 198--
201, 236--237, referred to.
1.4. There will be no impoundment of the reservoir until
resettlement and rehabilitation work is fully completed in all respects.
The dams are built by public funds with the aim to satisfy the energy
and water needs but what benefit ultimately is would give to the
E displaced people should also be taken care of. (223-D, 210-B]
l.S. The conflicts over natural resources which frequently come
to Courts are conflicts over rights between haves and haves not. When
a multimillion big dam project is undertaken to generate electricity
and for providing water for irrigation and drinking, those living by the
F side of river from generations to suffer by displacement, should not be
left to a far off palce which would deprive them of their life and life
style. In the march of progress, the humblest and the weakest should
not be left behind. (210-B, G, H, 211-A)
G
CIVIL ORIGINAL nJRISDICTION : Writ Petition No. 295 of 1992.
Under Article 32 of the Constitution of India.
WITH
H
T.C. (C) Nos. 50, 51, 52, 53 of 1996.
•
...
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__..
--/
N.D. JA YAL v. U.0.1. [RAJENDRA BABU, J.]
161
K.N. Rawal, Solicitor General, R.N. Trivedi and Altaf Ahmad, A
Additional Solicitor Generals, Ms. Indra Jaisingh, Dr. Rajiv Dhawan,
Sanjay Parikh, Ms. Vandana Sudan, Abinash K. Misra, A.N. Singh, S.
Santhanan Swaminathan, S. Wasim A. Qadri R.N. Poddar, B. V. Bairam
Das, Mrs. Anil Katiyar, B. Krishna Prasad, Ashok K. Srivastava, Sunder
Lal Bahuguna-in-person, Gopal Singh, Anil Shrivastav, Ms. Jyoti Dutt, Ms. B
Binu Tamta, Ajay K. Agarwal, K.I. Janjani, Pankaj Kumar Singh, Avathar
Singh Rawal, Addi. Advocate General for State, Mrs. D. Bharathi Reddy,
N.L. Ganapathi, Satya Mitra Garg and Dr. Nafis A. Siddique for the
appearing parties.
The Judgments of the Court were delivered by
RAJENDRA BABU, J. :
WRIT PETITION NO. 295 OF 1992 :
The present petition under Article 32 of the Constitution of India is
the second round of legal action connected to the safety and environmental
aspects of Tehri Dam before this Court.
c
D
The petitioners herein firstly urge us to issue necessary directions to E
conduct further safety tests so as to ensure the safety of the dam. Secondly,
they allege that the concerned authorities have not correspondingly
complied with the conditions attached to the Environmental Clearance
dated July 19, 1990 and want us to halt the Project till the same is complied
with. Lastly, they want us to look into the Rehabilitation aspects. Subsequent F
to the filing of this petition few others joined as interveners. String of
Affidavits, counter-affidavits and other documents disclosing the minutest
details have been presented. Oral submissions on both sides have been
addressed at length.
Before adverting to the contentions of safety, environmental G
clearance and rehabilitation, it is necessary to draw a demarcating line
between the realm of policy and the permissible areas for judicial
interference in the context of present case. For this, a brief factual surve)l
is warranted.
This is also necessary to appreciate the broader issues
advanced before us.
H
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SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.
A
Investigation for the purpose of construction of a dam at Tehri for
hydel power generation was commenced as early as in 1961. In the year
1972, the Planning Commission envisaged a cost ofRs.197.92 crores and
in 1976, administrative clearance to the Project was given by the Government
of U .P. In March 1980, a direction was issued by the then Prime Minister
B for an in-depth review of the whole project. Consequently, an Expert Group
was constituted by the Ministry of Science and Technology. The Prime
Minister's note on the file reads as follows:
c
D
"There are several proposals which were agreed to earlier but
would need to be looked into again. A .. 1ongst them are Silent
Valley, the dam in Tehri Garhwal and the dam in Lalpur, Gujarat.
It seems that larger areas of very fertile land are being submerged
without any commensurate gains. There may be other such cases
also. It is true that these decisions have been taken over a period
of time but there is great local distress and a feeling that
contractors and other such groups will be the main gainers.
Hence, it is necessary to have another look in depth."
In May 1980, an interim report was submitted by the Expert Group
and the final report was submitted in August 1986. Even though an
expenditure of Rs. 206 crores has been incurred, the Expert Committee
E recommended to abandon the project. Ministry of Environment and Forest
(MoEF) accepted the report in October 1986 and endorsed the view of the
Expert Committee. In November 1986, the erstwhile USSR offered
administrative, technical and financial assistance on a turnkey basis and the
Tehri Project was revived as recipient of such aid. In November 1986, a
F Protocol was signed with USSR for providing technical and financial
assistance for this project to the tune of I OOOM Roubles. Thus the need
to obtain environmental clearances even in the absence of Environmental
Action Plans became urgent so as to quickly complete all administrative
and technical formalities. In January 1987, the Government announced in
G the Press that it has cleared the project after a thorough assessment of the
impact of the project on environment and after satisfying themselves that
the adverse impact on environment can be remedied. A general agreement
was signed in Moscow and it was decided that the dam construction would
be carried out jointly by Soviet and Indian Engineers. Thereafter, the
H project, which was initially executed by the Irrigation Department of the
--
N.D. JAYAL v. U.O.l. [RAJENDRA BABU, J.]
163
Government of U.P. has been taken over by the joint venture company of A
the Government of India and the Government of U.P. The company was
called Tehri Hydro Development Corporation Ltd (THDC). In July I989,
MoEF revised cost estimates and released further funds, conditional to its
prior environmental clearance. Accordingly, THDC formulated Environment
Action Plans for consideration and assessment by MoEF. In February B
1990, the Environmental Appraisal Committee, MoEF concluded that the
Tehri Dam Project, as proposed, should not be taken up as it does not merit
environmental clearance. Subsequently, On July 19, 1990, conditional
clearance to the project was given by MoEF. It was specifically provided
that completion of status, formulation of action plans and their
implementation will be scheduled in such a manner that their execution is C
pari-passu with the construction, failing which the engineering works
would be brought to a halt and this condition will be enforced among others
under the provisions of the Environment Protection Act, 1986.
The petitioners raised the question before us that when a decision had D
been taken in 1990 to abandon the project as to how clearance could be
given on July 19, 1990? Again they pointed out that on 21.10.1994 serious
consequences of the implementation lagging behind was taken note of but
the project was allowed to continue.
From the narration of various events set out earlier, it is clear that even
by August 1986 an expenditure of Rs.206 crores had been incurred for the
construction of the dam. It is after the THDC Action Plans for consideration
and assessment by MoEF have been submitted. These were considered on
two occasions: firstly, in February 1990 and again on July 19, 1990 and
E
it is thereafter the conditional clearance was given. It is contended that F
the environmental clearance which was granted on July 19, 1990 is without
proper application of mind and, therefore, the dam construction should not
be allowed to proceed. The law on this aspect has been clearly set out in
the decision of this Court in Narmada Bachao Ando/an v. Union of India,
[2000] 10 sec 664. As in the present case, in the case of Sardar Sarovar G
Project also, four identical conditions were imposed and they are as under:
"(i) NCA will ensure that environmental safeguard measures are
planned and implemented pari-passu with progress of work on
project.
H
164
A
B
SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.
(ii) The detailed surveys' studies assured will be carried out as per
the schedule proposed and details made available to the Department
for assessment.
(iii) the catachment area treatment programme and the rehabilitation
plans be so drawn as to be completed ahead of reservoir filling.
(iv) The Department should be kept informed of progress on
various works periodically."
The effect of grant of clearance subject t0 pari-passu conditions has
C also been examined by this Court in Sardar Sarovar Project's case. It has
been noticed therein that there are three stages with regard to the
undertaking of an infrastructural project -
the first of which is the
conception or planning, second is decision to undertake the project and the
third is the execution of the project. The conception and the decision to
D undertake a project has to be regarded as a policy decision.
In Sardar Sarovar Project case it was also held that when two or more
options are possible and the Government takes a policy decision it is then
not a function of the Court to re-examine the matter by way of appeal.
E Necessary analogy could also be drawn from BALCO Employees' Union
(Regd.) v. Union of India, (2002] 2 SCC 333.
Once such a considered decision is taken, the proper execution of the
same should be undertaken expeditiously. It is for the Government to
decide how to do its job. When it has put a system in place for the
F execution of the project and such a system cannot be said to be arbitrary,
then the only re , which the Court has to play is to ensure that the system
works in the manner it was envisaged. It is made clear in that decision
that the questions whether to have an infrastructual project or not and what
is the type of project to be undertaken and how it has to be executed, are
G part of policy-making process and the courts are ill-equipped to adjudicate
on a policy decision so undertaken. However, a note of caution was struck
that the Courts have a duty to see that in the undertaking of a decision,
no law is violated and people's fundamental rights as guaranteed under the
Constitution are not transgressed upon except to the extent permissible
H under the Constitution. When a law has been enacted in relation to the
N.D. JA YAL v. U.0.1. [RAJENDRA BABU, J.]
165
protection of environment and such law is being given effect to and there A
is no challenge to such law, the duty of the Courts would be to see that
the Government and other respondents act in accordance with law and there
is no other obligation for the Court to examine further in the matter. We
respectfully agree with the view expressed in the Sardar Sarovar project's
case and apply the same to the facts arising in this/ case.
B
Further, it was noticed in the aforesaid decision that in cases where
a project is taken up of the present nature, the Court will certainly bear
in mind that environmental concern should be examined not only with
reference to the submerged areas but also its surrounding areas. The impact C
has to be examined on the project as a whole and at the same time it should
also be noticed that the construction of a dam would result in multifold
improvement in the environment of the areas where the canal waters will
reach. The benefits which have been reaped by the people all over India
with the construction of the dams are too well-known and, therefore, the
Government cannot be faulted for deciding to construct the high dam on D
river Tehri with a view to provide water and electricity in the area as was
the decision in the Sardar Sarovar project's case also. In such situations,
displacement of people residing in the proposed project sites and the areas
to be submerged is an important issue. Therefore, a properly drafted relief
and rehabilitation plan is absolutely required and the Government was also E
conscious of this particular fact. It, therefore, not only examined this
matter on several occasions but also constituted an Expert Committee on
17. 7 .1996 to examine the environmental and rehabilitation aspects. Several
times the matter was examined by the Government at different stages and
follow up action plans also were actively considered by the Government. F
The report given by Hanumantha Rao Committee (HRC) was accepted by
the Government subject to certain conditions and the project is being
implemented in terms thereof.
Therefore, at this penultimate stage of the proceedings, it is too late
in the day to think as to why the decision was taken to construct the project G
or decisions have been taken to continue the project though at one stage
it was thought it would not be appropriate to continue the same.
With these clarifications, we will now proceed to the specific aspects
of safety and conditional clearance.
H
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A Safety Aspect
Tehri Dam is being constructed at the confluence of the Bhagirathi
and Bhilangana rivers in the neighborhood of the Garhwal town in the State
of Uttaranchal. According to the petitioners the structure of the dam itself
is not safe and also alleged that its existence increases the seismic
B vulnerability of the entire Himalayan region. By way of abundant caution
they want the concerned authorities to conduct Three-Dimensional (3D)
Non-Linear Test to evaluate the earthquake susceptibilitY of the dam
against the Maximum Credible Earthquake. They also insist upon the
computer simulated Dam Break Analysis to estimate the magnitude of
C damages in the unexpected eventuality of any dam failure. The respondents
submitted that they explored the possibility of such tests and arrived at a
conclusion that such tests are neither practical nor necessary in the present
case.
D
The respondents added that the studies related to site specific
assessment of seismicity, testing of fill materials for determining dynamic
properties and detailed dynamic analysis, were carried out independently
by two agencies; that they are the Department of Earthquake Engineering,
University of Roorkee, and Hydro Project Institute (HP!), Moscow; that
the result of their studies indicated that earth and rockfill type dams as
E chosen for Tehri are the safest man-made structures in earthquake prone
zones due to their large inertia, high damping and high flexibility; that the
dam fill material is being compacted to concrete like density, which
provides high strength while retaining the flexibility; that relatively flat
slopes have been adopted for up-stream and down stream of the dam,
F which are flatter than the slopes provided in some recent high dams built/
planned in regions of similar high seismicity; that, therefore, the Tehri Dam
is a fail-safe structure and the design has been found safe against the worst
earthquake scenario of the area, even when very conservative and severe
seismic parameters were assumed for these tests. A high level Committee
G under the Chairmanship of Director General, Geological Survey of India,
which consists members from Central Water Commission; Director, National
Geophysical Research Institute; Head of Department of Earthquake
Engineering, University of Roorkee,
and Dr. V.K. Gaur,
the then
Secretary, Department of Ocean Development was also constituted to
H examine issues concerning safety of the dam. The Committee in its report
N.D. JA YAL v. U.0.1. (RAJENDRA BABU, J.]
167
established that even in the worst scenario of possible occurrence of a large A
magnitude earthquake of 8+ in richter scale with the probable location at
a depth of 15 km below the dam site, the same would be safe. They
concluded that dam design is safe and added that all danger arising out of
the seismicity have been taken note of and taken care of in the planning ·
of Tehri Dam project.
B
From the documents before us, it could be gathered that the Government
also referred the matter to Seismic Expert, Prof. Jai Krishna who was the
former President oflnternational Academy of Earthquake Engineering llJld
also Vice-Chancellor of the University of Roorkee. He examined the
matter and opined that "the proposed dam section for the Tehri Project is C
safe from the point of view of seismicity of the region"
and "since
conservatism has entered at almost every step of decision making, the
overall factor of safety of the dam is high enough to eliminate any risk from
earthquake of the future. " The next Expert Group that consisted of the
Director General, Geological Survey of India, made a report on 25.7.1991 D
and recommended that the reports of the High Level Committee and the
review given by Prof. Jai Krishna should be accepted. The seismic stability
of the dam was further got tested through the Hydro Project Institute,
Moscow, against actual acceleogram of the Gazli earthquake for the
maximum vertical acceleration of I .36g and horizontal acceleration of E
0.72g both acting simultaneously and the dam design was again found to
be safe. Even though the design of the dam had been earlier independently
checked by two separate agencies, it was again examined and it was found
that the project appears to be safe. Subsequently, during the pendency of
this petition, in order to allay fears expressed in certain quarters, the F
Government of India in June 1996 appointed a Group of Five Experts to
examine the relevant scientific and technical reports and other information
relating to safety of the Tehri Dam and make its recommendations to the
Government for consideration. In the selection of the experts Shri Sundarlal
Bahuguna, who has been spearheading the movement against the
construction of the Tehri Dam, was also associated and he recommended G
the inclusion of two engineers apart from the three seismologist. Thus the
names of all the five Experts were suggested by Shri Bahuguna. The Group
of Five Experts, after a detailed discussion on the various issues related
to the seismic safety of the Tehri Dam, concluded that a comprehensive
appraisal of the seismic safety of the dam required completion of the two H
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A key exercises by employing recent advances in conceptual and computational
capabilities and they are, (i) quantitative estimation of seismic hazard at
all the Tehri Dam site, and (ii) evaluation of the performance of the Tehri
Dam as currently designed, if it was exposed to the estimated seismic
hazard at the site. Accordingly, the Group of Experts got conducted the
B necessary exercises at their own decided parameters and methods. The
Group also considered the International Commission on Large Dams
Guidelines on Earthquake Analysis Procedure for Dams and Seismicity and
Dam Design. Based on these materials the Group of Experts finally
submitted the report on 18.2.1998. They concluded that the ''present
design of the Dam is expected to be structurally safe to withstand the
C maximum credible earthquake during the economic performance life of the
dam-reservoir system. " The Group of Experts was unanimous in their
recommendation as stated above. However, as a matter of abundant
caution, four Experts suggested (i) 3-D Non-Linear analysis of the Dam
to evaluate its performance against the maximum credible earthquake and
D (ii) a simulated dam break analysis to ensure that in the unlikely event
of an uncontrolled release of water, the consequences are minimum, be
conducted. There was difference of opinion between the four Experts and
the Fifth Expert only on the need to undertake these two additional studies
as a matter of abundant caution. The Government of India, after receipt
E of the report of the Group of Experts, examined the further recommendation
of the four out of five Experts in consultation with the Central Water
Commission, which is a technical body of the Government and nodal
agency in the country for planning and design of River Valley Projects who
in tum referred the report of the Expert Group together with the need for
F carrying out the work recommended by way of abundant caution to the
National Committee on Seismic Design Parameters which is a standing
technical committee and it furnished its views. In addition, plethora of
material has been placed by way of various text books and studies carried
out by other agencies. We think that it is neither feasible nor proper for
us to delve into these details. The Government of India, after considering
G the views thereof, finally decided that there was no necessity to undertake
the work recommended further by the Four Experts by way of abundant
caution and clearance to the project was given.
In Tehri Bandh Virodhi Sangarsh Samiti vs. State of UP, [ 1992] Supp.
H I sec 44, the grant of clearance on July 19, 1990 was called in question
N.D. JAY\'\Jv. U.0.1.