Case: N.D. Jayal &amp; Another Vs. Union of India &amp; Others

be provided for common property resources and forest lands that may be acquired from their dependants. 8. The DPs/PAPs are defined in a way as to include not only land owners but also those who depend on it without owning it, and those who have common property resources as their sustenance. 134. This Court in the case of Karjan Jalasay Yojana Assargrasth Sahkar Ane Snagharsh Samiti v. State of Gujarat (AIR 1987 SC 532 ) has held thus: "Simultaneously with taking possession of the acquired land from any person in occupation of it, such person shall be provided either alternative land of equal qualify but not exceeding three acres in area and it that is not possible, then alternative employment where he would be assured a minimum wane. .......... No possession of any part of the acquired land shell be taken from any person unless and until he is either provided with alternative land or alternative employment which is not temporary in character so that he and the members of his family do not remain without means of subsistence ..... if for any reason the State Government is not able to provide alternative land or arrange for alternative employment, the State Government will subject to the same exception, pay to the head of the family at the latter" place of residence compensation equivalent to minimum wage every fortnight during the period alternative land or employment is not provided." 135. The above directions of this Court in the case of Karjan Jalasay (supra) were based on the factual realities that for most marginal farmers and tribals monetary compensation for acquisition of land can never be sustainable source of dignified living. A new place of alternative land of equal quality should be given to those dispossessed from land due to acquisition for public purpose. In the last affidavit submitted by Ministry of Environment and Forests before us to show the status of the progress of rehabilitation as on 3rd February, 2003, the figures disclose that out of total 9,239 rural affected families cash compensation is not paid to 1,943 families and 250 families affected by Koteshwar Darn have also not received cash compensation. 136. For providing agricultural land to farmers who have been ousted it is stated that land is being acquired down the valley in the vicinity of Dehradun city. The Government has thus been involved in exercise of rehabilitating the dam oustees on acquired land from other land holders who in turn will have to be ousted. This win give rise to chain reaction of making other people landless. The process has not yet been completed and according to the affidavit of the Ministry itself the work of resettlement and rehabilitation is underway. 137. When natural resources are exploited in a big way for big projects by State with all sincerity and good intentions for general common benefit, social conflicts arise as a natural adverse consequence, Generally the conflicts arise between marginal farmers, peasants and other landless persons who survive on natural resources and those who are better off, rich or affluent and who desire to undertake agriculture and industry. When river projects for dams are undertaken to generate electricity and improve irrigation facilities, conflicts arise between people living up-stream who have to necessarily lose their source of living and habitat and those living down-stream who need water and electricity for their homes, Industries and agricultural fields. When such social conflicts between different social groups i.e. up-stream population and down-stream population, between rural population and urban population, between poor surviving on natural resources and others needing natural resources for further development arise what should be the duty and priorities of the State and its authorities who have undertaken the projects? When such social conflicts arise between poor and more needy on one side and rich or affluent or less needy on the other, prior attention has to be paid to the former group which is both financially and politically weak. Such less advantaged group is expected to be given prior attention by Welfare State like ours which is committed and obliged by the Constitution, particularly by its provisions contained in the Preamble, Fundamental rights, Fundamental duties and Directive Principles, to take care of such deprived sections of people who are likely to lose their home and source of livelihood. 138. Mistakes in resettlement and rehabilitation of people ousted by other similar Projects committed in the past have to be avoided. The construction of dam cannot be allowed to proceed and be completed leaving the oustees high and dry. 139. The oustees of Tehri Dam Project who are used to valley life in Himalayas are proposed to be resettled and rehabilitated in newly built Tehri Town and those depending on forest and agriculture are proposed to be given cash compensation or land down-stream near Dehradun city. The Ministry of Environment and Forests (MoEF) in their last affidavit has given a status report to show that resettlement work is in progress but not completed. In the affidavit it is promised as under:- "The Project authority shall ensure that prior to closing of diversion tunnels T1/T2 for impoundment of the Reservoir; evacuation, resettlement and rehabilitation are completed in all respects. In addition, the catchment area and treatment of direct draining areas etc. shall be completed. The Project Authority shall obtain clearance from MoEF before closing the outlet at EL 700 m." 140. The RIO declaration of environment and development in the United Nations Conference held in June 1992 to which India was a party and signatory and on which the Environment Protection Act, its Rules and Policies are modeled, obligates the Authorities of India by the norms fixed in International end Domestic Law that "the environmental and natural resources of people under operation, domination and occupation shall be protected," A mention has already been made above of the latest rehabilitation policy framed by the Government of India and relevant part has been quoted. These legal and policy obligations are enforceable against the State.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 alsoof 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." The next Expert Group that consisted of the Director General, Geological Survey of India, made a report on 25.7.1991 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 accelerogram of the Gazli earthquake for the maximum vertical acceleration of 1.36g and horizontal acceleration of 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 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 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 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 or Experts got conducted the 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 maximum credible earthquake during the economic performance life of thesystem." The Group of Experts was unanimous in their recommendation as stated above. However, as a matter of abundant caution , four Experts suggested (i)3D Non Linearanalysis of the Dam to evaluate its performance against the maximum credible earthquake and (ii) a simulatedanalysis 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 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 turn referred the report of the Expert Group together with the need for 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 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 the present case the Government, even after the decision of this Court which did not interfere with the decision of the Government on safety aspects In Tehri Bandh Virodhi Sangarsh Samitis case (supra) again seriously examined safety aspects as a matter of precaution. The Office Memorandum dated 1/2/1999 of the Ministry of Power, Government of India, before us testifies this position. Green signal for further works was given by the Government after satisfying itself with the safety of the dam. A mere revisit to the earlier decision cannot be counted as a sign of doubt regarding the dam safety. If the Government so desires they could have abandoned the Project. The necessity or effectiveness of conducting3D Non LinearTest 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 advice the Government to go for such tests unless malafides, arbitrariness or irrationality is attributed to that decision. The decision of the Government is not based on any financial constraints or uncertainty as to technical opinion. It was clearly of the view that the last Committee was unanimous that the Tehri Dam to be constructed is safe but the advice based on abundant caution was not accepted. As a result, we need not reexamine the safety aspects of the dam.In a catena of cases we have reiterated that right to clean environment is a guaranteed fundamental right, May be in different context, the right to development is also declared as a component of Art.21 in cases like Samata v. State of Andhra Pradesh, 1997 (8) SCC 191 , and in Madhu Kishore v. State of Bihar, 1996 (5) SCC 125. 24. The right to development cannot be treated as a mere right to economic betterment or cannot be limited to as a misnomer to simple construction activities. The right to development encompasses much more than economic well being, and includes within its definition the guarantee of fundamental human rights. The development is not related only to the growth of GNP, in the classic workDevelopment As Freedom the Nobel prize winner Amartya Sen pointed out that the issue of development cannot be separated from the conceptual framework of human right. This idea is also part of the UN Declaration on the Right to Development. 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. Of course, 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 development.25. Therefore, 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 fundamental right. On the other hand right to development is also one. Here the right to sustainable development cannot be singled out. Therefore, the concept of sustainable development is to be treated an integral part of life under Art.21. The weighty concepts like intergenerational equity (State of Himachal Pradesh v. Ganesh Wood Products, 1995 (6) SCC 363 ), public trust doctrine (M.C. Mehta v. Kamal Nath , 1997 (1) SCC 388 ) and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.It is no doubt true that in regard to certain aspects such as Catchment Area Treatment, conditions imposed are not fully implemented and it is not very clear from various affidavits filed whether in regard flora and fauna also the, conditions have been fulfilled or not. Whenconditions have been imposed, it is necessary that the conditions are fulfilled along with the construction of the engineering works. In refuting the contention of the petitioners that impoundment in the reservoir has been done before theimplementation of environment and forest conditional clearances, it is stated as follows:"Diversion tunnels on the right bank, T3/T4 have been closed in December 2001 for taking up construction of stilling basin and shaft spillway. The reduced levels of T3 and T4 tunnels are 606 M and 609 M respectively. Diversion tunnels on the left bank, T1/T2 have been kept open for discharging the water downstream. The reduced level of both T1 and T2 is the same viz., 632 M. The current quantity of discharge remains unabated from the discharge prior to the start of project construction. There is no alteration/reduction in quantity of water discharged from the river prior to taking up the project and as of now.The maximum discharge in the river observed during floods in the year 1978, that is 3669 cusecs.Impoundment in the reservoir is generally done for the purpose of deriving benefits from the storage by creating facility for irrigation, drinking water supply, power generation etc. As a matter of fact, none of the benefits are presently accruing from the project at the current stage. Diversion tunnels T3/T4 have been closed for taking up construction of stilling basin before they are permanently closed."78.It is submitted on behalf of the respondents that the initial impoundment in the reservoir will start with the closure of diversion tunnels T1/T2 and water level rising to EL 700 M. The maximum draw down level is EL 740 M, The reservoir spread at EL 700 M will be 10 sq. km. Compared to full reservoir spread at 830 M of 44 sq. km. The present water spread of reservoir at EL 632 M is 1.2 sq. km. only. It is also made clear on behalf of the respondents that this implied that commensurate safeguards in the works related to Catchment Area Treatment, Command Area Development, Rehabilitation and resettlement, protection of flora and fauna, disaster management plan, etc. are ensured along with the progress of the construction works and it was also implied that the completion of project meant rise in water level in the reservoir and simultaneously increase in the water spread.It is made clear that the condition ofimplementation 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 T1/T2 for Impoundment of the reservoir, evacuation, resettlement and rehabilitation are completed In all respects. In addition, the catchment area treatment of direct draining areas shall be completed and the project authority will obtain clearance from MoEF before closing the outlet at EL 700 M. An additional affidavit has also been filed on behalf of the Union of India to the effect that a high level inter ministerial review committee Would be constituted consisting of Secretaries of all the concerned Ministries of the Central Government to examine various aspects and closely monitoring of the same. It is only after the completion of these conditions, impoundment would start. This categorical statement made by the respondents should assure the petitioners that 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.80. The petitioners have disputed that the respondents have complied with the conditions of clearance. But a careful analysis of their pleadings will indicate the dispute is to the extent of compliance only and not that there is no compliance at all. On behalf of the Union of India, a status report supported by an affidavit is filed which indicates that there is substantial compliance with all the conditions. We have in detail discussed the various facts set out in the said affidavit and status in the earlier portion of this order.81. In this background, we find that the petitioners have not established or is there any material to conclude that the Project work is being carried on without complying with the conditions of clearance. Though there were certain lapses at certain stages, they were taken care of by monitoring agencies.