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

The present petition under Art.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, counteraffidavits 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 ofRs. 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 anreview of the whole project. Consequently, an Expert Group was constituted by the Ministry of Science and Technology. The Prime Ministers note on the file reads asare 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.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 wassigned 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, MoEF revised cost estimates and released further funds, conditional to its prior environmental clearance. Accordingly, THDC formulated Environment Action Plans for consideration and assessment by MoEF. In February 1990, the Environmental Appraisal Committee, MoEF concluded that the Tehri Dam Project, as proposed, should not be taken up as it does not merit environmental clearance. Subsequently, On July 19, 1990, conditional clearance to the project was given by MoEF. It was specifically provided that completion of status, formulation of action plans and their implementation will be scheduled in such a manner that their execution iswith 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.

Court's reasoning:
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.