HON’BLE THE CHIEF JUSTICE SRI G.S. SINGHVI AND HON’BLE SRI JUSTICE R. SUBHASH REDDY Writ Petition Nos.17368, 17705, 18020, 19067, 19717 & 27095 of 2005 Writ Petition No.17368 of 2005 Between: Prof. Kodanda Rama Reddy and others. …Petitioners And The Union of India, Ministry of Environment and Forests, represented by its Secretary, New Delhi and others. …Respondents Counsel for the petitioners : Shri K.G. Kannabhiran, Senior Advocate, assisted by Shri J. Ramachandra Rao Counsel for respondent Nos.1 & 6 : Shri A. Rajasekhar Reddy, to 8. Assistant Solicitor General. Counsel for respondent Nos.2, 4, : Shri C.V. Mohan Reddy, 5, 9 & 10. Advocate General, assisted by Government Pleader for Irrigation. Counsel for respondent No.3: : Shri S.V. Bhatt Writ Petition No.17705 of 2005 Between: Sri Vivekananda Rythu Samkshema Sangham, represented by its Secretary, Kalvacherla Village, Rajanagarm Mandal, East Godavari District. …Petitioner And The Union of India, Ministry of Environment and Forests, represented by its Secretary, New Delhi and others. …Respondents Counsel for the petitioner : Shri D. Prakash Reddy, Senior Advocate, assisted by Shri Ch. Dhanamjaya. Counsel for respondent Nos.1 & 6 : Shri A. Rajasekhar Reddy, to 8. Assistant Solicitor General. Counsel for respondent Nos.2, 4, : Shri C.V. Mohan Reddy, 5, 9 & 10. Advocate General, assisted by Government Pleader for Irrigation. Counsel for respondent No.3: : Shri S.V. Bhatt Writ Petition No.18020 of 2005 Between: A.P. Adivasi Chaitanya Samithi, represented by its President, Bhadrachalam, Khammam District. …Petitioner And The Union of India, Ministry of Environment and Forests, represented by its Secretary, New Delhi and others. …Respondents Counsel for the petitioner : Shri D. Prakash Reddy Senior Advocate, assisted by Shri Mummaneni Srinivasa Rao Counsel for respondent Nos.1 & 6 : Shri A. Rajasekhar Reddy, to 8. Assistant Solicitor General. Counsel for respondent Nos.2, 4, : Shri C.V. Mohan Reddy, 5, 9 & 10. Advocate General, assisted by Government Pleader for Irrigation. Counsel for respondent No.3: : Shri S.V. Bhatt Writ Petition No.19067 of 2005 Between: Girijana Sangham, represented by its Secretary, Hyderabad. …Petitioner And The Union of India, Ministry of Environment and Forests, represented by its Secretary, New Delhi and others. …Respondents Counsel for the petitioner : Shri C. Kodandaram for Shri V. Raghu Counsel for respondent Nos.1, : Shri A. Rajasekhar Reddy, 5 & 6. Assistant Solicitor General. Counsel for respondent Nos.2 to 4, : Shri C.V. Mohan Reddy, 7 and 8. Advocate General, assisted by Government Pleader for Irrigation. Writ Petition No.19717 of 2005 Between: Sri Sai Baba Rythu Samkshema Sangham, represented by its President, Devarapalli Village & Mandal, West Godavari District and others. …Petitioners And The Union of India, Ministry of Environment and Forests, represented by its Secretary, New Delhi and others. …Respondents Counsel for the petitioners : Shri C. Kodandaram Counsel for respondent Nos.1 & 6 : Shri A. Rajasekhar Reddy, to 8. Assistant Solicitor General. Counsel for respondent Nos.2, 4, : Shri C.V. Mohan Reddy, 5, 9 & 10. Advocate General, assisted by Government Pleader for Irrigation. Counsel for respondent No.3: : Shri S.V. Bhatt Writ Petition No.27095 of 2005 Between: SAMATA, A non-governmental organization, represented by its Executive Director, Visakhapatnam. …Petitioner And The Union of India, Ministry of Tribal Affairs, represented by its Secretary, New Delhi and others. …Respondents Counsel for the petitioner : Shri K.S. Murthy Counsel for respondent Nos.1 & 2 : Shri A. Rajasekhar Reddy, Assistant Solicitor General. Counsel for respondent Nos.3 to 7 : Shri C.V. Mohan Reddy, Advocate General, assisted by Government Pleader for Irrigation. :: ORDER:: June 20, 2007 Per G.S. Singhvi, CJ These petitions filed by an educationist, some environmentalists, social activists and others for restraining the State Government and its functionaries from executing Indira Sagar (Polavaram) Multipurpose Project (hereinafter referred to as ‘Polavaram Project’) near Ramayyapet Village of Polavaram Mandal, West Godavari District are representative of the concern shown by a large segment of the society of the possible adverse impact on the environment and ecology of the area and displacement of lakhs of people living in the Scheduled Areas of the State of Andhra Pradesh, who are likely to be uprooted. The writ petitions also raise the question whether the doctrine of sustainable development can be invoked by the courts for ensuring that the economic progress of the State is not retarded by judicial interdiction and, at the same time, the affected people are adequately compensated, rehabilitated and settled. Prof. M. Kodandarama Reddy, who is petitioner No.1 in Writ Petition No.17368 of 2005, is an Associate Professor of Political Science in Osmania University. He claims to have been fighting against the proposal of the State Government to construct Polavaram Project. Petitioner No.2 – Aadivasi Hakkula Porata Samithi (TUDUM DEBBA) is an association formed for protecting the rights of the Scheduled Tribes who are living in seven Mandals of Khammam District and are likely to be displaced on account of the construction of Polavaram Dam. Petitioner No.3, Uppala Venkata Ramana is an agriculturist, who is concerned with the possible adverse impact on the environment on account of execution of Polavaram Project. Petitioner Nos.5 to 8 are land owners in Velerupadu Mandal of Khammam District, whose lands are likely to be submerged in Polavaram Dam. Sri Vivekananda Rythu Samkshema Sangham (petitioner in Writ Petition No.17705 of 2005) is a representative body of farmers for Kalvacherla Village, Rajanagaram Mandal, East Godavari District, who are greatly concerned about the adverse impact of Polavaram Project on the tribals of seven Mandals in Khammam District. Writ Petition No.18020 of 2005 has been filed by A.P. Adivasi Chaitanya Samithi, which has been formed for protecting the interest of the Scheduled Tribes of Khammam, West Godavari and East Godavari Districts, who are likely to be affected on account of construction of Polavaram Dam. Girijan Sangham (petitioner in Writ Petition No.19067 of 2005) is a representative body of Scheduled Tribes in the State and has been espousing their cause. It has sought the Court’s intervention for protecting 75,798 acres of land of 276 villages, which will be submerged in the water of Polavaram Dam affecting 27,798 families consisting of about 1,17,000 people. Another concern of the petitioner is about the threatened submergence of 7,500 acres of forest area. Writ Petition No.19717 of 2005 has been filed by Sri Sai Baba Rythu Samkshema Sangham for protecting the interest of small and marginal landholders of West Godavari and Krishna Districts, whose land is sought to be acquired for construction of Right Main Canal forming part of Polavaram Project. Other petitioners are land owners, whose lands are likely to be acquired for Polavaram Project. Samata (petitioner in Writ Petition No.27095 of 2005) is a registered voluntary organisation engaged in the upliftment of tribals in Eastern Ghats, Godavari Valley. It has also taken up causes for protection of environment. The petitioners have questioned the execution of Polavaram Project on the following grounds: 1) The State Government has not taken permission from the Central Water Commission (CWC) as per Clause VI of the Bachawat Award, which is binding on all the parties to the Award, including the State of Andhra Pradesh. 2) The State Government has not obtained permission from the Ministry of Environment and Forests, Government of India in accordance with the Environment Impact Assessment of Development Projects Notification, dated 27.1.1994 (hereinafter referred to as ‘the EIA Notification’) issued under the Environment (Protection) Act, 1986 (for short, ‘the Environment Act’) read with the Environment (Protection) Rules, 1986 (for short, ‘the Environment Rules’). 3) The State Government cannot construct the dam, which will result in submergence of 276 villages of the Scheduled Areas because the President has not issued direction for alteration of the Scheduled Areas in accordance with paragraph 6(2) of Part C of the Fifth Schedule of the Constitution of India. 4) The State Government has not consulted the National Commission for Scheduled Tribes as per the requirement of Article 338A (9) of the Constitution. 5) The State Government has not sought permission from the Ministry of Social Justice and Empowerment, Government of India and the Planning Commission. 6) The construction of Polavaram Project will violate the provisions contained in the Panchayats (Extension to the Scheduled Areas) Act, 1996 read with Andhra Pradesh Panchayat Raj Act, 1994, as amended by Andhra Pradesh Act No.7 of 1998, because, as a result of submergence of 276 villages, the people of those villages will be deprived of their right to elect their representatives for the Gram Panchayats and Mandal Parishads. 7) More than 7500 acres of forest land is likely to be submerged in the dam, but the State Government has not obtained prior approval from the Central Government as per the mandate of Section 2 (ii) of the Forest (Conservation) Act, 1980 (for short, ‘the Conservation Act’). In the affidavit filed by him, Prof. M. Kodanda Rama Reddy has referred to the administrative approval accorded by the State Government for construction of Indira Sagar Project Right Main Canal and Left Main Canal and averred that the same is liable to be annulled because, before doing so, the government did not obtain permission from the Government of India, Ministry of Environment and Forests, CWC, Ministry of Social Justice and Empowerment and Planning Commission. Sri Kodanda Rama Reddy has made particular reference to Clause (vi) of the administrative approval accorded by the State Government and pleaded that without complying with the Bachawat Award and obtaining clearance from CWC and Ministry of Environment and Forests in accordance with EIA Notification, the State Government cannot undertake execution of Polavaram Project, which will submerge hundreds of villages. The thrust of the affidavits filed in other writ petitions is that without obtaining permission from CWC and Planning Commission, and clearance from the Ministries of Environment and Forests and Social Justice and Empowerment, Government of India, the Government of Andhra Pradesh cannot undertake any work relating to Polavaram Project, but ignoring all statutory requirements, the State Government has invited tenders and awarded contracts for construction of different parts of Polavaram Project, which, if not stopped, would result in submergence of 75,798 acres of land spreading over 276 villages, 7,500 acres of forest land and affect more than 1,17,000 people, most of whom are tribals. According to the petitioners, execution of Polavaram Project will deprive the people of the Scheduled Areas of the constitutional protection envisaged under Fifth Schedule and their right to livelihood, which is guaranteed under Article 21 of the Constitution. In paragraphs 6 to 16 of his affidavit, Sri Y. Krishna Mohan Rao, who is petitioner No.9 in Writ Petition No.19717 of 2005, has given the details of the expenditure likely to be incurred by the State Government in constructing Right and Left Canals, the area likely to be irrigated by Polavaram Project, and alleged that all is being done by the State Government in utter disregard of the Bachawat Award, the provisions of the Conservation and Environment Acts. These paragraphs are extracted below: “6. It is submitted that the government have moved the policy statement on the demand for grant on major and medium irrigation for 2005-06 before the Assembly to grant a sum not exceeding Rs.7847 Crores of which an amount of Rs.269 Crores was earmarked for this project against the demand No.XXXIII for Major Irrigation Drainage, Floods Control and Medium Irrigation for 2005-06 in which the project is shown at Sl.No.5.1, inter alia various features of the projects were discussed. In this policy the government have additionally included to supplement I.D. crops of 16 lakh acres in the upland areas of Visakhapatnam, Vizianagaram and Srikakulam under Left Main Canal and West Godavari and Krishna Districts under Right Main Canal, under Phase-II by lift which was not contemplated by the earlier policy. It is submitted that the proposal of the project in the earlier policy was to provide irrigation facilities to 7.21 lakh acres in East Godavari, Visakhapatnam, West Godavari and Krishna Districts as per allocation, but all of a sudden the supplemental 16.0 lakh acres were shown to be irrigated without there being allocation of water. This would have implication in the present context of the challenge on the sizes of the canals and the alignments. The same policy also intended to complete the other irrigation projects in time bound programme including the Tadipudi Lift Irrigation Scheme and Pushkaram Lift Irrigation Scheme within a period of 2 years. The significance of these two projects are to provide irrigation facility for 3.92 lakh acres of ayacut in two Districts by Lift Irrigation. In this process, the Tadipudi Lift Irrigation Scheme is proposed for providing 1400 cusecs of water by lifting the water to a height of 28 mts. to irrigate 2.06 lakh acres of ayacut through the main canal by spending an amount of Rs.355 Crores. This work is already under progress. It is pertinent to note that the Tadipudi canal runs side by side of the Right Main Canal of Polavaram Project for a distance of 95 kilometers with a common bund. 7. It is submitted that in the policy statement, it is stated that the government have accorded administrative approval for construction of Right Main Canal and Left Main Canal, despite the fact that the government have not obtained permission from the 6th respondent in accordance with the award as per which the 6th respondent has alone to design the dam and its operation schedule. Clause 6 of the same reads as follows: Clause – VI: I) In accordance with the statement dated the 3rd April 1980 submitted on behalf of the Government of India, annexed hereto and marked Annexure “H”, we direct that……. 1. The Polavaram Project shall be cleared by the Central Water Commission as expeditiously as possible for FRL/MWL + 150 feet; II. The matter of design of the dam and its operation schedule is left to the Central Water Commission which it shall decide keeping in view all the agreements between the parties, including the Agreement dated the 2nd April, 1980 as far as practicable; and III. If there is to be any change in the operation schedule as indicated in the Agreement dated the 2nd April, 1980 it shall be made only after consultation with the States of Andhra Pradesh, Madhya Pradesh and Orissa. The design aspects shall, however, be left entirely to the Central Water Commission. 2) The State of Andhra Pradesh shall observe all safeguards including the safeguards mentioned in sub-clause (1) above, regarding the Polavaram Project, as directed by the Central Water Commission. 8. It is submitted that the State Government without following the above said award of the Tribunal which is binding on all the parties thereto, the 2nd respondent commenced the construction of the project in utter violation. The Government having accorded administrative approval for Right Main Canal worth of Rs.1320 Crores called for tenders and agreements were entered into under seven packages. Accordingly, the contractors commenced the construction of project work on war footing. 9. It is submitted that the 2nd respondent without obtaining the Environmental Clearance as per the provisions under Environmental Impact Assessment Notification, 1994 and the guidelines framed thereunder has commenced the construction of project by inviting tenders, notwithstanding the fact that there is an adverse environmental impact. It is submitted that as and when government wants to construct a multipurpose project as listed in Schedule-I, it is required that an application has to be submitted by the project authority to the 1st respondent and the application has to be in the proforma as specified in the Schedule-II to the notification. This application is further required to be accompanied with (i) Project report which includes environment impact assessment statement, (ii) Environmental Management Plan and (iii) Details of public hearing as specified in Schedule-IV, prepared in accordance with the guidelines issued by the Central Government and by the Ministry of Forests and Environment from time to time. As regards Hydro Power and Major Irrigation Projects and or their combinations including flood control, sites specific projects are also required to be included. Clause III A specifies that no construction work, preliminary or otherwise, relating to the settling of the project may be undertaken till the environmental and/or site clearance obtained. Further, it is made mandatory to follow the notification if the projects mentioned under Schedule-I are more than 100 Crores and inasmuch as the construction of the Right Main Canal with a proposed initial cost of Rs.1320 Crores is more than required, the same has to be necessarily approved by the 6th respondent. 10. It is further submitted that the Ministry of Environmental and Forest, Government of India vide its Notification dated 10-4-1997 has made it mandatory to conduct the public hearing before going in for this kind of projects, to provide an opportunity to the general public to record their objections. So far, no such public hearing is conducted, but they are proceeding with construction of the Right Main Canal, which is in violation of the above notification. It is submitted that the State Government have not obtained any of the permissions/ clearances mentioned above, without which it has commenced the construction of the project. It is pertinent to mention here that the project includes main dam, spillway, reservoir, main canals and distributory canals, as such the project in entirety has to be approved and none of them could be isolated for the purpose of obtaining permission. It is submitted that this Hon'ble Court already had an occasion to hold that obtaining environmental clearance is a must and mandatory for the purpose of construction of any multipurpose project. 11. It is submitted that the construction of Right Main Canal also involves acquiring forest land apart from private patta lands for which the 2nd respondent has to necessarily obtain prior approval from the Government of India, Ministry of Forests as contemplated u/s 2 of the Forest (Conservation) Act, 1980. The Act prescribes that in the event of conversion of forest land for non-forest purpose, the user agency has to obtain prior approval from the Government of India for which a proforma application is prescribed and also the user agency has to provide land for compensatory aforestation apart from paying net present value as held by the Hon'ble Supreme Court. In the present case, about 271.7 acres of forest land is sought to be acquired for the purpose of the project out of which 109.82 acres of land is needed for Right Main Canal. Without adhering to these statutory requirements and obtaining prior approval, the 2nd respondent is proceeding with the construction of the Right Main Canal. It is further submitted that, apart from following the contents of the Godavari Water Dispute Tribunal Award and various statutes governing environmental protection, the proponent of the project is required to follow the procedure as laid down under the “Guidelines for Submission Appraisal and Clearance of Irrigation and Multipurpose Project-2002” issued by the 6th respondent in consultation with the 7th respondent which reads as under: “1.3. The existing procedure of project appraisal of irrigation, flood control and multipurpose projects for both major and medium projects, which are having inter-State ramification has been now revised. In the revised procedure, the concerned State Government, in the initial stage, will first submit preliminary report covering surveys and investigations, international/inter-State aspects, hydrology, irrigation planning, brief environmental aspects, intended benefits etc., which are required to establish soundness of the project proposal. The project proposal will be examined and if found acceptable, the C.W.C. shall convey in principle consent for preparation of detailed project report. Thereafter, Detailed Project Report (DPR) will be prepared with up to date cost and simultaneously the project authorities will process and obtain necessary clearances of Ministry of Environment and Forests in respect of Environment Impact Assessment and Forest area being diverted. If Scheduled Tribe population is diverted, the clearance of R&R Plans shall be obtained from the Ministry of Tribal Affairs. The DPR thus prepared will be examined in CWC. In States where Central Design and Planning Organisations do not exist, the CWC will check the designs also. The CWC will finalise the cost B.C. ratio, internal rate of return etc. and the State Government will obtain concurrence of the State Finance Department for this finalised cost. The project proposals will, thereafter, be put up to the Advisory Committee for clearance, which would be by and large, like single window clearance.” 12. It is submitted that the 2nd respondent has called for tenders for constructing Right Main Canal by dividing the same into 7 packages and surprisingly the cost of this was raised from 1320 Crores to 1774 Crores on the date of issuance of tenders and entered into agreements with the contractors. As submitted above, the 2nd respondent even before necessary approvals and clearances are obtained from respective statutory authorities, has started constructing the Right Main Canal in a hasty manner ignoring the fact that constructing canal without dam being ready to release water for the ayacut would be result-less and on the other hand, the petitioners and others whose land would be acquired for this purpose would be deprived of their right over the said land. Even otherwise also, construction of main dam and spillway would consume more time compared to construction of Right Main Canal, as such constructing Right Main Canal by acquiring the lands of the petitioners at this point of time would render injustice, as no purpose would be served, as such there is no rationale behind the object that is sought to be achieved. 13. It is submitted that the original alignment of the Right Main Canal prepared in the year 1983 envisages a discharge of 14,000 cusecs to irrigate 3.20 lakh acres in West Godavari and Krishna Districts and also to divert 84 TMC of water to Krishna delta, for which purpose, the 2nd respondent issued a G.O. vide G.O.Ms. No.74, dated 27-7-2004 according administrative approval for Rs.13.20 Crores and tenders were called for the same amount. But strangely, all of a sudden, the capacity of Right Main Canal was increased to 17,571 cusecs without any technical sanction on the pretext that an additional ayacut of 8.00 lakh acres would be covered by lift in West Godavari, Krishna and Khammam Districts. Out of these 8.00 lakh acres 4.85 lakh acres is already covered by Nagarjunasagar Command area. Hence, the ayacut is duplicated to the extent of 4.85 lakh acres. By virtue of the above change in IBM, the canal estimate is enhanced to Rs.1841.5 Crores and the administrative sanction for this revised amount is not yet accorded by the 2nd respondent. As a result of this, the canal bed width is increased from 65 mts. to 85 mts. necessitating acquisition of valuable and productive additional lands to an extent of about 3,200 acres entailing additional expenditure. 14. It is further submitted that the environmental impact assessment carried out for Tadipudi Lift Irrigation Project categorically makes it clear that the proposed ayacut under this project is already covered under the Polavaram Project and, in order to derive early benefits, according to the 2nd respondent, the Tadipudi Project was envisaged apart from the admission that as clearance to the Polavaram Project may take some more years, the Lift Irrigation Scheme was proposed. In other words, the 2nd respondent, after coming to know that it may not be in a position to obtain approvals/clearances from appropriate authority proposed the Tadipudi Scheme in which case the construction of Right Main Canal at this early stage would be totally useless and detrimental to the interest of the land holders. Even otherwise also, Tadipudi canal which is already commenced would run up to 95 kilometers parallel to the proposed Right Main Canal with a common bund, as such the petitioners are further put to loss on account of two main canals being constructed side by side out of which one would be rendered useless over a period of time. It is pertinent to mention here that the bed width of the Tadipudi Lift Irrigation Canal and the Right Main Canal of Polavaram Canal which runs parallel to each