N.D. Jayal And Anr. vs Union Of India (Uoi) And Ors. on 1 September, 2003
Equivalent citations: JT 2003 Suppl 2 SC 1, 2003 (7) SCALE 54, (2004) 9 SCC 362
Author: R Babu.
Bench: S R Babu, D Dharmadhikari, G Mathur
Rajendra Babu. J.
WRIT PETITION NO. 295 OF 1992:
1. 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.
2. The petitioners herein firstly urge us; to issue necessary directions to 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 to the filing of this petition few others joined as intervenes. 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.
3. Before adverting to the contentions of safety, environmental 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 survey is warranted. This is also necessary to appreciate the broader issues advanced before us.
4. 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 of Rs. 197.82 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 for an in-depth review of the whole project. Consequently, an Expert Group was constituted by the Ministry of Science and Technology. The Prime Minister’s note on the file reads as follows:
“There are several proposals which were agreed to earlier but would need to be looked into again. Amongst 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.”
5. 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 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 Protocol was signed with USSR for providing technical and financial assistance for this project to the tune of 1000M Roubles. Thus the need to obtain environmental clearances even in the absence of Environmental Action Plans became urgent so as to quickly complete all administrative and technical formalities. In January 1987, the Government announced in the Press that it has cleared the project after a thorough assessment of the impact of the project on environment and after satisfying themselves that the adverse impact on environment can be remedied. A general agreement was signed in Moscow and it was decided that the dam construction would be carried out jointly by Soviet and Indian Engineers, Thereafter, the project, which was initially executed by the Irrigation Department of the Government of U.P. has been taken over by the joint venture company of the Government of India and the Government of U.P. The company was called Tehri Hydro Development Corporation Ltd (THDC). In July 1989, Move revised cost estimates and released further funds, conditional to its prior environmental clearance. Accordingly, THDC formulated Environment Action Plans for consideration and assessment by Move. In February 1990, the Environmental Appraisal Committee, Move 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 Move. 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 pan-pass 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.
6. The petitioners raised the question before us that when a decision had been taken in 1990 to abandon the project as to how clearance could be given on July 19, 1990? Again they pointed out that on 21.10.1994 serious consequences of the implementation lagging behind was taken note of but the project was allowed to continue.
7. 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 Move have been submitted. These were considered on two occasions: firstly, in February 1890 and again on July 19, 1090 and it is thereafter the conditional clearance was given. It is contended that the environmental clearance which was granted on July 19, 1990 is without proper application of mind and, therefore, the dam construction should not be allowed to proceed. The law on this aspect has been clearly set out in the decision of this Court in Narmada Bachao Andolan v. Union of India. . As in the present case, in the case of Sardar Sarovar 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.
(ii) The detailed surveys’ studies assured will be carried out as per the schedule proposed and details made available to the Department for assessment.
(Ill) the attachment 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.”
8. The effect of grant of clearance subject to pari-passu conditions has also been examined by this Court in Sardar Sarovar Project’s case. It has been noticed therein that there are three stages with regard to the undertaking of an infrastructural project – the first of which is the conception or planning, second is decision to undertake the project and the third is the execution of the project. The conception and the decision to undertake a project has to be regarded as a policy decision.
9. 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. Necessary analogy could also be drawn from BALCO Employees’ Union (Reqd.) v. Union of India , .
10. Once such a considered decision is taken, the proper execution of the same should be undertaken expeditiously. It is for the Government to decide how to do its job. When it has put a system in place for the execution of the project and such a system cannot be said to be arbitrary, then the only role which the Court has to play is to ensure t
hat the system works in the manner it was envisaged. It is made clear in that decision that the questions whether to have an in frastructual project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. However, a note of caution was struck that the Courts have a duty to see that in the undertaking of a decision, no taw 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 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.
11. Further, it was noticed in the aforesaid decision that in cases whore a project is taken up of the present nature, the Court will certainly bear in mind that environmental concern should be examined not only with reference to the submerged areas but also its surrounding areas. The impact has to be examined on the project as a whole and at the same time it should also be noticed that the construction of a dam would result in multifold improvement in the environment of the areas where the canal waters will reach. The benefits which have been reaped by the people all over India with the construction of the dams are too well-known and, therefore, the Government cannot be faulted for deciding to construct the high dam on river Tehri with a view to provide water and electricity in the area as was the decision in the Sardar Sarovar project’s case also. In such situations, displacement of people residing in the proposed project sites and the areas to be submerged is an important issue. Therefore, a properly drafted relief and rehabilitation plan is absolutely required and the Government was also conscious of this particular fact. It, therefore, not only examined this matter on several occasions but also constituted an Expert Committee on 17.7.1996 to examine the environmental and rehabilitation aspects. Several times the matter was examined by the Government at different stages and follow up action plans also were actively considered by the Government. 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.
12. 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 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.
13. With these clarifications, we will now proceed to the specific aspects of safety and conditional clearance.
14. Tehri Dam is being constructed at the confluence of the Bhagirathi and Bhilangana rivers in the neighborhood of the Garhwal town in the State of Uttaranchal. According to the petitioners the structure of the dam itself is not safe and also alleged that its existence increases the seismic vulnerability of the entire Himalayan region. By way of abundant caution they want the concerned authorities to conduct Three-Dimensional (3D) Non-Linear Test to evaluate the earthquake susceptibility of the dam against the Maximum Credible Earthquake. They also insist upon the computer simulated Dam Break Analysis to estimate the magnitude of damages in the unexpected eventuality of any dam failure. The respondents submitted that they explored the possibility of such tests and arrived at a conclusion that such tests are neither practical nor necessary in the present case.
15. 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 (HPI), Moscow; that the result of their studies indicated that earth and rockfill type dams as chosen for Tehri are the safest man-made structures in earthquake prone zones due to their large inertia, high damping and high flexibility; that the dam fill material is being compacted to concrete like density, which provides high strength while retaining the flexibility; that relatively flat slopes have been adopted for up-stream and down stream of the dam, which are flatter than the slopes provided in some recent high dams built/planned in regions of similar high seismicity; that, therefore, the Tehri Dam is a fail-safe structure and the design has been found safe against the worst earthquake scenario of the area, even when very conservative and severe seismic parameters were assumed for these tests. A high level Committee under the Chairmanship of Director General, Geological Survey of India, which consists members from Central Water Commission; Director, National Geophysical Research Institute; Head of Department of Earthquake Engineering, University of Roorkee, and Dr. V.K. Gaur, the then Secretary, Department of Ocean Development was also constituted to examine issues concerning safety of the dam. The Committee in its report established that even in the worst scenario of possible occurrence of a large magnitude earthquake of 8+ in richter scale with the probable location at a depth of 15 km below the dam site, the same would be safe. They concluded that dam design is safe and added that all danger arising out of the seismicity have been taken note of and taken care of in the planning of Tehri Dam project.
16. 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 of International Academy of Earthquake Engineering and also Vice-Chancellor of the University of Roorkee. He examined the matter and opined that “the proposed dam section for the Tehri Project is 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.”