# NARMADA BACHAO ANDOLAN ETC. ETC v. UNION OF INDIA AND ORS

- **Citation:** [2000] Supp. 4 S.C.R. 94
- **Court:** Supreme Court of India
- **Decided:** 2000-10-18
- **Bench:** Dr. A.S. Anand, S.P. Bharucha, B.N. Kirpal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narmada-bachao-andolan-etc-etc-v-union-of-india-and-ors-17670
- **Pages:** 154

## Headnote

c
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Constitution of India-Articles 32 and 226-Public Interest litigationScope of-No directions can be issued which are against legal provisions.
Constitution of India-Articles 32 and 226-Judicial Review-Scope
of-Courts cannot transgress into the field of policy decision-Government
deciding to construct a dam-No violation of law or malafide--Held, Courts
cannot sit in appeal over the policy decision of the Government.
Constitution of India-Articles 32 and 226-laches-Project for
construction of dam approved 25 years ago-Huge investments madePetitioner agitating against construction since 1986-Writ Petition filed in
1994-Held, Petitioner cannot challenge the construction after such lapse
of time.
E
Constitution of India-Article 32-Public Interest litigation-Petitioner
challenging the construction of a dam on the ground that adequate steps
were not taken for relief and rehabilitation of the oustees and that the
adverse environmental effects were not taken into account-Award of Tribunal
constituted under Inter States Water Disputes Act, 1956-Award laying down
F the measures to, be taken for relief and rehabilitation of the oustees-Several
authorities set up for monitoring the implementation of the Award as per the
direction of the Tribunal-Authorities to see that measures to protect
environment are also taken-Held, relief and rehabilitation and
environmental concerns had been taken care of-Courts can only see if the
Authorities are discharging their duties or not.
G
H
Environment (Protection) Act, 1986-Section 3-Decision to construct
a dam-Environmental clearance given on the basis of available studies and
surveys which were not complete-Conditions imposed to complete
environmental safeguards pari passu with the project work-Held, the
environmental clearance cannot be said to be invalid-Constitution of lndia94
NARMADA BACHAO ANDOLAN v. U.0.1.
95
Article 32.
A
Environment (Protection) Act, 1986-Section 3-Polluting industries
_ _.__
and projects-Precautionary Principle and Polluter-pays principleApplicability of-Held, would be applicable if the extent of damage likely to•
be caused is not known-Burden of proof-Held, would be on the person
who wants to change the status quo if the extent of damage likely to be B
caused is not known-Indian Evidence Act, 1872-Section 102.
Inter State Water Disputes Act, 1956-Section 5(2) and 5(4)-Award
of the Tribunal-Final and binding on parties-Third party cannot challenge
the Award
The Petitioner was agitating against the construction of the Sardar
Sarovar Dam since 1986. In the present case the Petitioner had challenged
the decision of the Govemment of India and the concerned State Governments
to construct the dam in the Narmada river basin by way of the present Writ
Petition filed in 1994.
The idea of development of the Narmada river system was first mooted
in 1946. The State of Gujarat granted administrative clearance Stage I of the
project in 1961. The project was inaugurated on 5.4.1961 and preliminary
work started. However, due to disagreement between the concerned States the
project could not be implemented.
The State of Gujarat filed a complaint under Section 3 of the Inter States
Water Disputes Act, 1956 stating that water dispute had arisen between the
State of Gujarat and the States of Madhya Pradesh and Maharashtra over the
use, distribution and control of the waters of Narmada river. The Government
of India constituted a Tribunal and referred the dispute to the Tribunal.
While the dispute was still pending before the Tribunal, a forma.1
agreement was entered into on 12.7.1974 between the Chief Ministers of the
States of Madhya Pradesh, Maharashtra and Rajasthan and the Advisor to
c
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E
F
the Governor of Gujarat sorting out several issues which the Tribunal would
otherwise have decided. However, dispute in respect of the height of the dam G
remained. The parties to the agreement agreed that the Tribunal would decide
the said issue of height after considering the submission of the parties

## Text

_Characters 0–39,847 of 377,177. This is a partial read: ask again with offset=39847 for what follows._

A
NARMADA BACHAO ANDOLAN ETC. ETC.
v.
UNION OF INDIA AND ORS.
OCTOBER 18, 2000
B
[DR. A.S. ANAND, C.J., S.P. BHARUCHA AND B.N. KIRPAL, JJ.]
c
D
Constitution of India-Articles 32 and 226-Public Interest litigationScope of-No directions can be issued which are against legal provisions.
Constitution of India-Articles 32 and 226-Judicial Review-Scope
of-Courts cannot transgress into the field of policy decision-Government
deciding to construct a dam-No violation of law or malafide--Held, Courts
cannot sit in appeal over the policy decision of the Government.
Constitution of India-Articles 32 and 226-laches-Project for
construction of dam approved 25 years ago-Huge investments madePetitioner agitating against construction since 1986-Writ Petition filed in
1994-Held, Petitioner cannot challenge the construction after such lapse
of time.
E
Constitution of India-Article 32-Public Interest litigation-Petitioner
challenging the construction of a dam on the ground that adequate steps
were not taken for relief and rehabilitation of the oustees and that the
adverse environmental effects were not taken into account-Award of Tribunal
constituted under Inter States Water Disputes Act, 1956-Award laying down
F the measures to, be taken for relief and rehabilitation of the oustees-Several
authorities set up for monitoring the implementation of the Award as per the
direction of the Tribunal-Authorities to see that measures to protect
environment are also taken-Held, relief and rehabilitation and
environmental concerns had been taken care of-Courts can only see if the
Authorities are discharging their duties or not.
G
H
Environment (Protection) Act, 1986-Section 3-Decision to construct
a dam-Environmental clearance given on the basis of available studies and
surveys which were not complete-Conditions imposed to complete
environmental safeguards pari passu with the project work-Held, the
environmental clearance cannot be said to be invalid-Constitution of lndia94
NARMADA BACHAO ANDOLAN v. U.0.1.
95
Article 32.
A
Environment (Protection) Act, 1986-Section 3-Polluting industries
_ _.__
and projects-Precautionary Principle and Polluter-pays principleApplicability of-Held, would be applicable if the extent of damage likely to•
be caused is not known-Burden of proof-Held, would be on the person
who wants to change the status quo if the extent of damage likely to be B
caused is not known-Indian Evidence Act, 1872-Section 102.
Inter State Water Disputes Act, 1956-Section 5(2) and 5(4)-Award
of the Tribunal-Final and binding on parties-Third party cannot challenge
the Award
The Petitioner was agitating against the construction of the Sardar
Sarovar Dam since 1986. In the present case the Petitioner had challenged
the decision of the Govemment of India and the concerned State Governments
to construct the dam in the Narmada river basin by way of the present Writ
Petition filed in 1994.
The idea of development of the Narmada river system was first mooted
in 1946. The State of Gujarat granted administrative clearance Stage I of the
project in 1961. The project was inaugurated on 5.4.1961 and preliminary
work started. However, due to disagreement between the concerned States the
project could not be implemented.
The State of Gujarat filed a complaint under Section 3 of the Inter States
Water Disputes Act, 1956 stating that water dispute had arisen between the
State of Gujarat and the States of Madhya Pradesh and Maharashtra over the
use, distribution and control of the waters of Narmada river. The Government
of India constituted a Tribunal and referred the dispute to the Tribunal.
While the dispute was still pending before the Tribunal, a forma.1
agreement was entered into on 12.7.1974 between the Chief Ministers of the
States of Madhya Pradesh, Maharashtra and Rajasthan and the Advisor to
c
D
E
F
the Governor of Gujarat sorting out several issues which the Tribunal would
otherwise have decided. However, dispute in respect of the height of the dam G
remained. The parties to the agreement agreed that the Tribunal would decide
the said issue of height after considering the submission of the parties. If
was also noted that the Narmada project should no longer be delayed in the
best regional and national interests.
The Tribunal declared its final award on 7.12.1979. The Tribunal H
96
SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.
A examined the issues regarding allocation, height of the dam, hydrology and
other related issues. The Tribunal decided that the height of the Sardar
Sarovar Dam would be at Full Reservoir Level 455 feet. The Tribunal issued
directions regarding submergence of land, acquisition of land and the
.i.....,
rehal:»ilitation of displaced persons. The Tribunal directed that no
submergence of any area should take place unless tht oustees are
B rehabilitated. The Tribunal further directed constitution of Narmada Control
Authority, an inter State administrative authority, for the purpose of securing
compliance with and implementation of the decision and directions of the
Tribunal. The Tribunal also directed constituting a Review Committee
consisting of the Union Minister for Irrigations as its Chairperson and the
C Chief Ministers of Madhya Pradesh, Gujarat, Maharashtra and Rajasthan as
its members. The Review Committee could review the decisions of the
Narmada Control Authority and the Sardar Sarovar Construction Advisory
Committee.
In order to carry out the directions of the Award. The Inter States Water
D Disputes Act, 1956 was amended and Section 6-A was inserted. Thereafter,
the Government of India framed a scheme and constituted Narmada Control
Authority to give effect to the Award of the Tribunal. In 1987 the Narmada
Control Authority created independent machinery of Environment Sub-group
to ensure that the environmental safeguards were properly planned and
E implemented.
On 15.12.1980, the Central Water Commission referred the Sardar
Sarovar Project to the Department of Science and Technology for
environmental clearance. A meeting of the Environment Appraisal Committee
of the Department of Environment was held on 12.4.1983 in which the project
F was in principle approved.
In January J 985, the Department of Environment and Forests of the
Government of India issued "Guidelines of Environmental Impact Assessment
of River Valley Projects". The Guidelines noted the undesirable consequences
G of the river valley projects and the need to consider the environmental aspects
along with other feasibility considerations. According to the Guidelines the
cost of proposed remedial and mitigative measures, such as compensatory
afforestation, to protect the environment had to be included in the cost of the
project. The Guidelines stipulated that the Union of- India should give
environmental clearance only after a) all the necessary data in respect of the
H environmental impact of the project had been collected and assessed; (b) the
,;l
NARMADA BACHAO ANDOLAN v. U.0.1.
97
assessment showed that the Project could proceed; and (c) the environmental A
safeguard measures, and their cost, had been worked out.
Thereafter, there were several meetings convened by various ministries
for discussing issues relating to environment. In October, 1986 the Ministry
of Water Resources forwarded a Note to the Ministry of Environment and
Forests detailing the surveys/studies as well as work remaining to be done B
along with the time schedule therefor. The Note observed that delay was being
caused due to inadequacy of the material for evaluation of the environmental
impact of the project. It was opined in the said report that considering the
importance and the urgency of the project and its benefits so far as power
and irrigation facilities are concerned, it should be cleared from the C,
environmental angle, subject to conditions and stipulations.
The Department of Environment and Forests made its own assessment
and opined that formulation of catchment area programme, wildlife census by
the Zoological Survey of India and survey by the Botanical Survey of India
would take about three years. It finally decided that ifthe Government should D
decide to go ahead with the project it should be done with the provision of
environment management authority with adequate power and teeth to ensure
that environment management plan is implemented Pari passu with the
engineering and other works.
The matter relating to grant of environmental clearance was referred E
to the Prime Minister's Secretariat for clearance.
On 19.12.1986 the Secretary, Ministry of Environment and Forests sent
a Note to the Secretary to the Prime Minister on the environment aspects of
F
the Narmada Sagar Project and Sardar Sarovar Project. In the Note, it was
mentioned that due to inadequacy of the available data, it was not possible to
assess the impact of the loss of habitat on the wildlife and the overall loss of
biological diversity and genetic reserves. It was mentioned that the projects
were at fairly advanced stages of preparedness. The Note recommended the
establishment of Narmada Management Authority with adequate powers and
teeth to ensure that the Environmental Management Plan did not remain only G
on paper but was implemented pari passu with the engineering and other
works.
The Additional Secretary to the Prime Minister prepared a Note dated
15.1.1987. The Note mentioned that the Department of Environment and
Forests had recommended conditional approval of the project. The Prime H
98
SUPREME COURT REPORTS (2000] SUPP. 4 S.C.R.
A Minister opined that it was perhaps good time to try for River Valley Authority.
On 24.6.1987 the Ministry" of ,Environment and For_ests granted
·conditional approval to the projects. The conditions stipulated that
(i)
The Narmada Control Authority would ensure that environmental
B
safeguard measures are planned and implemented pari passu
with the progress of the work on the project.
(ii) The surveys/studies assured would be carried out as per the
proposed schedule.
C
(iii) The Catchment Area treatment programme and the rehabilitation
D
E
F
plans would be so drawn as to be completed ahead of reservoir
filling.
(rv) The Department of Environment and Forests should be kept
informed of the progress on various works periodically.
On 5.I0.1988 the Planning Commission approved investment in the
project with the direction to comply with the conditions laid down in the
environmental clearance of24.6.1987.
Before this Court the Petitioner contended :-
HEIGHT OF THE DAM
I. Having regard to the hydrology, the finding of the Tribunal is not
correct and the height of the dam should be reduced from 455 feet. (This
argument was also advanced by the State of Madhya Pradesh.)
DISPLACEMENT OF TRIBALS
2. The forcible displacement of the tribal population from the project
affected area was not in the national or public interest. It was in violation of
Article 21 of the Constitution of India. It was also in violation of Article 12 of
G the ILO Convention, to which India was a signatory, which stipulated that the
tribal population should not be removed from their lands without their free
consent except in accordance with national laws and regulations or reasons
relating to national security or in the interest of national economic
development. Article 12 further stated that when the removal of the tribal
population was necessary as an exceptional measure, they should be provided
H with land of quality at least equal to that of the land previously occupied by
-.
...
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NARMADA BACHAO ANDOLAN v. U.0.1.
99
them and they should be fully compensated for any resultant loss or injury. A
According to the Petitioner, .the Respondents had not shown that the
displacement of the tribal population was required as an exceptional measure.
3. The projects were not in the best national interest and was not a
solution to water problems. The projects would touch only the fringes of the
drought prone areas of Kutch and Saurashtra.
B
RELIEF AND REHABILITATION
4. As a result of construction of the dam over 41000 families and 245
villages would be affected. The authorities have considered only the families
affected by submergence as project affected families. There is no scheme for
rehabilitation of several other families that would be affected by the project.
5. The Narmada Control Authority has under estimated the total number
of affected families and the land required for these families' rehabilitation •
6. The relief and rehabilitation p,,:1'..ages in the different States were
different thereby restricting the choice of the oustees. This would lead to a
situation where the oustees would be forced to shift to Gujarat, where the
rehabilitation package was more favourable.
7. There were a large number of persons living in the submergence
area who were not farmers and would lose their livelihood due to loss of the
community and/or river. They were not being properly rehabilitated.
8. There was a need for an independent monitoring agency in respect of
re-settlement & rehabilitation as the Re-settlement & Rehabilitation Subgroup merely endorses the assertions made by the Government.
9. There was a clear requirement laid down by the Tribunal of villagewise communication rehabilitation in respect of the State of Gujarat. The
oustees were not offered a chance to re-settle in Gujarat as a community and
thus the order of the Tribunal was violated.
10. There was no provision for grazing land and fuel wood for the project
affected families.
J J. The rehabilitated people did not have adequate facility of irrigation
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D
E
F
G
at the place of their rehabilitation.
H
100
SUPREME COURT REPORTS [2000) SUPP. 4 S.C.R.
A
ENVIRONMENT AL CLEARANCE
12. The environmental clearance given to the project in 1987 was without
proper application of mind. The relevant surveys/studies were not available at
· the time of granting of the environmental clearance.
B
13. As the deadline for completion of the studies was not met till 1990,
c
the Ministry of Environment and Forests had declared that the environmental
clearance given to the project had lapsed. The Ministry of Environment and
Forests made a request to the Ministry of Water Resources for seeking
extension of the clearance but ultimately no extension was sought and given.
OTHER ENVIRONMENT AL ISSUES
14. As per the letter dated 24.6.1987 whereby environmental clearance
was given to the project, the catchment area treatment programme was not to
be done pari passu but was required to be completed before impoundment.
D However, the impounding began in 1994 and the catchment area treatment
programme had not been completed by then.
15. That there was need for some independent agency to examine the
various studies and action plans because if the studies and plans were not
properly done or implemented, the 'area, which were supposed to benefit, would
E end up being rendered unfit for cultivation.
16. The compensatory afforestation was being carried outside the project
impact area and on wastelands or lesser quality land, which would result in
forest of a lesser quality.
F
17. The downstream impacts of the project would destroy fisheries and
G
will result in salt-water ingress.
18. The area of submergence would include several sites of
archaeological importance and the.construction of the dam would mean loss
of rich historical legacy.
19. The impact of the project on the flora and fauna would be severe.
The studies in respect of flora and fauna had been completed only recently
and action plans were still awaited in many cases.
20. The project would have serious impacts on health around the
H submergence area and in the command area.
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NARMADA BACHAO ANDOLAN v. U.0.1.
101
21. The Ministry of Environment and Forests has abdicated i.ts A
responsibility by accepting the studies and progress report of the
Environmental Sub-group at the face value and without verification.
Dismissing the Writ Petition by majority, the Court
HELD : Per Kirpal, J. {for himself and Dr. A.S. Anand, C.J.)
B
PUBLIC INTERFST LITIGATION
I.I. Public Interest Litigation was an innovation essentially to safeguard
and protect the human rights of those people who were unable to protect
themselves. With the passage of time the Public Interest Litigation C
jurisdiction has been ballooning so as to encompass within its ambit subjects
such as probity in public life, granting of largesse in the form of licences,
protecting environment and the like. But the balloon should not be inflated so
much that it bursts. Public interest litigation should not be allowed to
degenerate to becoming Publicity Interest Litigation or Private Interest
Litigation. (218-C-DI
D
1.2. While exercising jurisdiction in Public Interest Litigation cases
Court has not forsaken its duty and role as a Court of law dispensing justice
in accordance with law. It is only where there has been a failure on the part
of any authority in acting according to law or in non-action or acting in
violation of the law that the Court has stepped in. No directions are issued E
which are in conflict with any legal provisions. Directions have, in appropriate
cases, been given where the law is silent and inaction would result in violation
of the Fundamental Rights or other legal provisions. (218-E-Fl
JUDICIAL REVIEW
F
2.1. While protecting the rights of the people from being violated in
any manner utmost care has to be taken that the Court does not transgress
its jurisdiction. There is in our Constitutional framework a fairly clear
demarcation of powers. The Court has come down heavily whenever the
executive has sought to impinge upon the Court's jurisdiction. At the same G
time, in exercise of its enormous power the Court should not be called upon
or undertake Governmental duties or functions. The Courts cannot run the
Government nor the administration indulge in abuse or non-use of power and
get away with it. The Courts must, therefore, act within their judicially
permissible limitations to uphold the rule of law and harness their power in
public interest. It is precisely for this reason that it has been consistently H
102
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A held by this Court that in matters of policy the Court will not interfere. When
there is a valid law requiring the Government to act in a particular manner
the Court ought not to, without striking down the law, give any direction which
is not in accordance with law. In other words, the Court itself is not above the
law. 1218-F-H; 219-A-Bl
B
2.2. In respect of public projects and policies which are initiated by the
Government, the Courts should not become an approval authority. Normally
such decisions are taken by the Government after due care and consideration.
In a democracy, welfare of the people at large, and not merely ofa small section
of the society, has to be the concern of a responsible Government. If a
C considered policy decision has been taken, which is not in conflict with any
law or is not ma/a fide, it will not be in public interest to require the Court to
go into and investigate those areas which are the functions of the executive.
When two or more options or views are possible and after considering them
the Government takes a policy decision it is then not the function of the Court
to go into the matter afresh and, in a way, sit in appeal over such a policy
D decision. 1219-B-El
2.3. The courts, in the exercise of their jurisdiction, will not transgress
into the field of policy decision. Whether to have an infrastructural project
or not and what is the type of project to be undertaken and how it has to be
executed, are part of policy making process and the Courts are ill equipped
E to adjudicate on a policy decision so undertaken. The Court, no doubt, has a
duty to see that in the undertaking of a decision, no law is violated and people's
fundamental rights are not transgressed upon except to the extent permissible
under the Constitution.1217-G-H; 218-AI
F
LACH ES
3.1. Any challenge to a policy decision relating to an infrastructural
project must be before the execution of the project is undertaken.Any delay
in the execution of the project means over run in costs and the decision to
undertake a project, if challenged after its execution has commenced, should
G be thrown out at the very threshold on the ground of laches if the Petitioner
had the knowledge of such a decision and could have approached the Court at
that time. Just because a petition is termed as a Public Interest Litigation
does not mean that ordinary principles applicable to litigation will not apply.
Laches is one of them. 1218-A-B)
H
3.2. The Petitioner which had been agitating against the dam since 1986
-
J
I
iiiiiiilL
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NARMADA BACHAO ANDOLAN v. U.0.1.
103
is guilty of laches in not approaching the Court at an earlier point of time. A
The Narmada project, in principle, was cleared more than 25 years ago. After
the environmental clearance was given 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. 1136:H, E, Gf
B
3.3. When such projects are undertaken and hundreds of crores of
public money is spent, individual or organisations in the garb of Public Interest
Litigation cannot be permitted to challenge the public 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 C
permitted to be challenged after a number of years during which period public
money has been spent in the execution of the project. 1137-A-Bf
HEIGHT OF THE DAM
4.1. The Tribunal had in no uncertain terms come to the conclusion D
that the height of the dam should be 455 ft. It had rejected the contention of
'">
the State of Madhya Pradesh for fixing the height at a lower level. Any issue
which has been decided by the Tribunal would, in law, be binding on the
-
respective States. Once the Award is binding on the States, it will not be open
to a third party like the Petitioner to challenge the correctness thereof.
E
1138-B-C; 139-Df
The State of Karnataka v. State of Andhra Pradesh and Ors., 120001 9
sec 572, relied on.
4.2. One of the indicators of the living standard of people is the per capita F
-
consumption of electricity. There is, however, perennial shortage of power in
India, and therefore, it is necessary that the generation increases. In India
there is more reliance now on thermal power projects. But these thermal
power projects use fossil fuels, which are not only depleting fast but also
~
contribute towards environmental pollution. Global warming due to the G
greenhouse effect has become a major cause of concern. On the other hand,
the hydel power's contribution in the greenhouse effect is negligible and it
can be termed ecology friendly. Not only this but the cost of generation of
electricity in hydel projects is significantly less. The Award of the Tribunal
has taken all these factors into consideration while determining the height
of the dam at 455 ft. 1224-E-H; 225-AI
H
104
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A
DISPLACEMENT OF TRIBALS
5.1. The rehabilitation package contained in the A ward of the Tribunal
as improved further by the State of Gujarat and the other States primafacie
shows that the land required to be allotted to the tribals is likdy to be equal,
if not better, than what they had owned. It is apparent that the tribal population
B affected by the submergence would have to move but the rehabilitation package
was such that the living condition would be much better than what it was before.
Article 12 of the ILO Convention clearly suggested that when the removal of
the tribal population is necessary as an exceptional measure, they shall be
provided with land of quality at least equal to that of the land previously occupied
C by them and they shall be fully compensated for any resultant loss or injury.
(143-H; 144-A; 143-D; 143-G-Hl
5.2. 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 on 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
D which they enjoyed in their tribal hamlets. The gradual assimilation in the
main stream of the society will lead to betterment and progress. (145-G-Hl
5.3. The allegation that the Sardar Sarovar Project was not in the
national or public interest is not correct. Dams play a vital role in providing
irrigation for food security, domestic and industrial water supply, hydroelectric
E power and keeping flood waters back. There would be a positive impact on
preservation of ecology as a result from the project. The project by taking
water to drought-prone and arid areas 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
F depletion, fluof'.ide and nitrite affected water and vanishing green cover. There
will be improvement of fodder availability, which will reduce pressure on
diversity and vegetation. The Sardar Sarovar Project by generating elean ecofriendly power will save the air pollution which would othern:ise take place by
generation power of similar capacity. (144-A; 144-E; 145-D-F)
G
Gramophone Co. of India v. B.B. Pandey, [1984) 2 SCC 534; People's
Union for Civil liberties v. Union of India, [199713 SCC 433 and Consumer
Education and Research Centre v. Union of India, 11995) 3 SCC 42, cited.
RELIEF AND REHABILITATION
6.1. In governance of the State, decisions have to be taken where there
H are conflicting interest. If for one set of people there were only one solution,
-
NARMADA BACHAO ANDOLAN v. U.0.1.
105
namely, construction of a dam, the same would have an adverse effect on A
another set of people whose houses and agricultural land would be submerged
in water. When a decision is taken by the Government after due consideration
and full application of mind, the Court is not to sit in appeal over such
decision. [220-C-DJ
6.2. Displacement of people living on the proposed project sites and the B
areas to be submerged is an important issue. It is a fact that people are
displaced by projects from their ancestral homes. Displacement of these people
would undoubtedly disconnect them from their past, culture, custom and
traditions, but then it becomes necessary to harvest a river for larger good.
_,,,,.
A natural river is not only meant for the people close by but it should be for C
the benefit of those who can make use of it, being away from it or near by. A
properly drafted relief and rehabilitation plan would improve living standards
of displaced persons after displacement. The relief and rehabilitation packages
of the States, especially of Gujarat, are such that the living conditions of the
oustees will be much better than what they had in their tribal hamlets.
[221-C-E; 221-H; 222-AI D
>
7.1. The Award of the Tribunal is binding on the States concerned. The
said Award also envisages the relief and rehabilitation measures which are
to be undertaken. If for any reason, any of the State Governments involved
lag behind in providing adequate relief and rehabilitation then the proper E
course for a Court to take would be to direct the Award's implementation and
not to stop the execution of the project. [222-H; 223-Al
7.2. This Court, as a Federal Court of the country especially in a case
of Inter-State river dispute where an Award had been made, has to ensure
that the bindh1g Award is implemented. In this regard, the Court would have F
the jurisdiction to issue necessary directions to the State which, though
bound, chooses not to carry out its obligations under the Award. Just as an
ordinary litigant is bound by the decree, similarly a State is bound by the
Award. Just as the execution of a decree can be ordered, similarly, the
implementation of the Award can be directed. If there is a short fall in carrying
out the re-settlement and rehabilitation measures, a time bound direction can G
and should be given in order to ensure the implementation.of the Award.
Putting the project on hold is no solution. 1223-A-C)
8. There is a basic difference in the impacts of the projects in the
upstream submergence area and its impacts in the beneficiary zone of the
command area. While people, who were oustees from the submergence zone, H
106
.SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A required re-settlement and rehabilitation, on the other hand, most of the people
falling under the command area were in fact beneficiaries o£the projects and
their remaining land would get relocated with the construction of the canal
leading to greater agricultural output. (193-D-E)
9. There appears to be no material on which it can be concluded that no
B proper surveys had been carried out for determining the number of project
affected families who would be adversely affected by the construction of the
dam. Each State has drawn detailed action plan and it is after requisite study
had been made that the number of project affected families have been
identified. (1931-G-H; 192-Al
C
10. It is incorrect to say that the difference in relief and rehabilitation
packages, the package of Gujarat being the most liberal, amounts to
restricting the choice of the oustees. Relief and rehabilitation packages in
different States were different due to different geographical, local and
economic conditions and availability of land in the States. The liberal packages
D available to the Sardar Sarovar Project oustees in Gujarat are not available
to the project affected people of other projects in Gujarat. Each State has its
own package and the outsees have an option to select the one which was most
attractive to them. There is no requirement that the liberalisation of the
packages by States should be to the same extent. (192-B-D)
E
11.1. There is no basis for contending that some outside agency or
National Human Rights Commission should see to the compliance of the
Tribunal Award. There is an elaborate network of authorities which have to
see to the execution and implementation of the project in terms of the Award.
All aspects of the project are supervised and there is a Review Committee
which can review any decision of the Narmada Control Authority and each of
F the rehabilitating States have set up an independent Grievances Redressal
Authority to take care that the relief and rehabilitation measures are properly
implemented and the grievances, if any, of the oustees are redres~ed.
(196-E-GJ
G
11.2. Dam has necessarily to be regarded as an infrastructural project.
There are three stages with regard to the undertaking of an infrastructural
project. One is conception or planning, second is decision to undertake the
project and the third is the execution of the project. The conception and the
decision to undertake a project are to be regarded as a policy decision. Once
such a considered decision is taken, the proper execution of the same should
H be taken expeditiously. It is for the Government to decide how to do its job.
....
NARMADA BACHAO ANDOLAN v. U.0.1.
107
When it has put a system in place for the execution of a project and such a A
system cannot be said to be arbitrary, then the only role which a Court may
have to play is to see that the system works in the manner it was envisaged.
(217-B-DJ
12.1. The requirement in the Tribunal's Award was that the State of
Gujarat should establish rehabilitation villages in Gujarat in the irrigation B
command of the Sardar Sarovar Project on the norms mentioned for
rehabilitation of the families who were willing to migrate to Gujarat. This
provision could not be interpreted to mean that the oustees' families should
be resettled as a homogeneous group in a village exclusively set up for each
such group. The concept of community-wise re-settlement, therefore, cannot C
derive support from the above quoted stipulation. Subsequent to the Tribunal's
Award, on the recommendation of the World Bank, the Government of Gujarat
adopted the principle that resettlement of the oustees should be relocated as
village units, village sections or families in accordance with the oustees'
preference. The oustees' choice has actively guided the resettlement process.
1193-F-HJ D
12.2. While re-settlement as a group in accordance with the outstees'
preference was an important principle/objective, the other objectives were that
the oustees should have improved or regained the standard of living that they
were enjoying prior to their displacement and they should have been fully
integrated in the community in which they were resettled. These objectives E
were easily achievable if they were resettled in the command area where the
land was twice as productive as the affected land and where large chunks of
land were readily available. This was what the Tribunal's Award stipulated
and one objective could not be seen in isolation of the other objectives. [194-EJ
12.3. The underlined principle in forming the relief and rehabilitation F
policy was not merely of providing land for project affected families but there
was a conscious effort to improve the living conditions of the project affected
families and to bring them into the mainstream. If one compares the living
conditions of the project affected families in their submerging villages with
the rehabilitation packages first provided by the Tribunal's Award and then G
liberalized by the States, it is obvious that the project affected families had
gained substantially after their resettlement. 1194-H; 195-AJ
13. Grazing land was not mandated or provided for in the Tribunal's
Award but nevertheless, the grazing land ofsix villages was available for use
of project affected families. It may be that the grazing land was inadequate H
108
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A but this problem will be faced by the entire State of Gujarat and not making
such land available for them does not in any way violate any of provisions of
the Award. (195-FJ
14. Most of the resettlement of the project affected.families were
provided irrigation facilities in the Sardar Sarovar Project command area or
B in the command areas of other irrigation projects. In many of the out of
command sites, irrigated lands were purchased. In cases where the irrigation
facilities were not functioning, the Government of Gujarat had undertaken
the work of digging tubewells in order to avoid any difficulty with regard to
irrigation in respect of those oustees who did not have adequate irrigation
C facilities. (195-G-Hl
IS. More than adequate steps are being taken by the State of Gujarat
not only to implement the Award of the Tribunal to the extent it grants relief
to the oustees but the effort is to substantially improve thereon and, therefore,
continued monitoring by this Court may not be necessary. The State of
D Madhya Pradesh seems to be in no hurry in taking steps to effectively
rehabilitate the project affected families in their home State. The State of
Madhya-Pradesh is under an obligation to effectively resettle those oustees
whose choice is not to go to Gujarat. (212-G; 214-C-Fl
ENVIRONMENTAL CLEARANCE
E
16.1. ft is not possible to accept the contention of the Petitioner that the
environmental clearance of the project was given without application of mind.
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. The Government was aware of the fact that number of studies and
F 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. (160-G-H; 161-Al
G
16.2. At the time when the environmental clearance was granted by the
Prime Minister whate\'·er studies were available were taken into consideration.
It was known that the construction of the dam would result in submergence
and the consequent effect which the reservoir will have on the ecology of the
surrounding areas was also known. Various studies relating to environmental
impact had been carried out. There are different facts of environment and if
H in respect of a few of them adequate data was not available it does not mean
-
NARMADA BACHAO ANDOLAN v. U.0.1.
109
that the decision taken to grant environmental clearance was in any way A
vitiated. The clearance required further studies to be undertaken and this
has been and is being done. Care for environment is an on going process and
the system in place would ensure that ameliorative steps are taken to counter
the adverse effect, if any, on the environment with the construction oftlte dam.
(177-D-Fl B
17. There could not have been any question of the environmental
clearance granted to Sardar Sarovar Project being lapsed more particularly
when the Environmental 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 C
works done by the respective States in the matter of the status of studies,
surveys and environmental action plans. (164-C-D)
OTHER ENVIRONMENT AL ISSUES
18. Environmental and ecological consideration must, of course, be given D
due consideration but with proper channellisation of developmental activities
ecology and environment can be enhanced. So far a number of such river valley
projects have been undertaken in all parts of India. The Petitioner has not
been able to point out a single instance where the construction of a Dam has,
on the whole, had an adverse environmental impact. On the contrary the E
environment has improved. That being so there is not reason to suspect, with
all the experience gained so far, that the position here will be any different
and there will not be overall improvement and prosperity. (222-D; 222-FJ
19.1. The 'precautionary principle' and the corresponding burden of
proof on the person who wants to change the status quo will ordinarily apply F
in a case of polluting or other project or industry where the extent of damage
likely to be inflicted is not known. When th.ere is a state of uncertainty due
to lack of data or material about the extent of damage or pollution likely to be
caused then, in order to maintain the ecology balance, the burden of proof
that the said balance will be maintained must necessarily be on the industry G
or the unit which is likely to cause pollution. On the other hand where .the
effect on ecology or environment of setting up of an industry is known, what
has to be seen is that if the environment is likely to suffer, then what mitigative
steps can be taken to offset the same. Merely because there will be a change
is no reason to presume that there will be ecological disaster.
(175-H; 176-A-BI H
110
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A
A.P. Pollution Control Boardv. Professor M. V. Mavadu, (199912 SCC
718; Sierra Club et. v. Robert F. Froehlke, 350 bF. Supp. 1280 (1973);
Tennessee Valley Authority v. Hiram G. Hill, 437 US 153, 57 L Ed 2d 117;
Arlington Coalition on Transportation v. John A. Volpe, 458 F.2d 1323 (1972)
and Environment Defence Fund, Inc. v. Corps of Engineers of United States
B Army 325 F. Supp. 749 (1971), distinguished.
Vellore Citizens' Welfare Forum v. Union of India, (199615 SCC 647,
referred to.
19.2. In the present case, what is being constructed is a large dam. The
dam is neither a nuclear establishment nor a polluting industry.