2003 Supreme(SC) 836

2003(6) Supreme 572
Supreme Court of India
(Under Art. 32 of the Constitution of India)
S. Rajendra Babu, D.M. Dharmadhikari and G.P. Mathur, JJ.
N.D. Jayal & Anr. —Petitioners
versus
Union of India & Ors. —Respondents
Writ Petition No. 295 of 1992
With
T.C. (C) Nos. 50, 51, 52, 53 of 1996
Decided on 1-9-2003
Counsel for the Parties :
For the Appearing Parties : K.N. Rawal, Solicitor General, R.N. Trivedi and Altaf Ahmad, Additional Solicitor Generals, Ms. Indra Jaisingh, Dr. Rajiv Dhawan, Sr. Advocates, Sanjay Parikh, Ms. Vandana Sudan, Abinash K. Misra, A.N. Singh, S. Santhanan Swaminathan, S. Wasim A. Qadri, R.N. Poddar, B.V. Balram Das, Mrs. Anil Katiyar, B. Krishna Prasad, Ashok K. Srivastava, Sunder Lal Bahuguna-in-person, Gopal Singh, Anil Shrivastav, Ms. Jyoti Dutt, Ms. Binu Tamta, Ajay K. Agrawal, K.L. Janjani, Pankaj Kumar Singh, Avathar Singh Rawal, Addl. Advocate General for State, Mrs. D. Bharathi Reddy, N.L. Ganapathi, Satya Mitra Garg and Dr. Nafis A. Siddiqui, Advocates.

Important Point
In case of Tehri Dam Project, to ensure that all the conditions for environmental clearance are fulfilled and for proper monitoring, cases transferred to the High Court of Uttaranchal.

Headnote:(i) Constitution of India—Article 32—Environment (Protection) Act, 1986—Tehri Dam—Safety and Environmental aspects—Investigation for purpose of construction of dam at Tehri for hydel power generation commenced in 1961—Administrative clearance to Project given in 1976—However, Expert Committee recommended to abandon the project even though an expenditure of Rs. 206 crores had been incurred—Ministry of Environment and Forest accepted the report in October 1986—However, Tehri Project revived in November 1986 on USSR offering administrative, technical and financial assistance—Conditional clearance to project given by Environmental Appraisal Committee—Writ petition filed asserting that dam construction should not be allowed to proceed—Effect of grant of clearance subject to pari-passu conditions—No difference of opinion among Experts as to safety of dam—Cases transferred to the High Court of Uttaranchal.

       Majority Opinion (Rajendra Babu, J. for himself and on behalf of G.P. Mathur, J.) :

       Held : The main controversy in this case is regarding the pari passu compliance of the conditions in the clearance certificate. Before going into any detailed evaluation of these aspects the term pari passu needs to be explained. The lexical meaning of the Latin word pari passu is - at an equal rate or pace, with simultaneous progress, proportionately etc. This term is generally used in the context of creditors who, in marshalling assets, are entitled to receive out of the some fund without any precedence over each other. Any way, the required application of its meaning in the background of the present case is clear. The works, which are fixed up as conditions attached to the clearance, will have to be carried out simultaneously with the engineering works. So by the time the engineering works finishes, the conditions should also have been fulfilled. (Para 38)

       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. When pari-passu conditions have been imposed, it is necessary that the conditions are fulfilled along with the construction of the engineering works. (Para 74)

       It is made clear that the condition of pari-passu implementation 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. 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. 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. To ensure that all the conditions for environmental clearance are fulfilled and for proper monitoring, we transfer all these cases to the High Court of Uttaranchal to be dealt with by a Division Bench. The High Court shall deal with these matters as if filed before it and shall be at liberty to pass any orders. However, it is made clear that it shall not be open to re-examine the matters such as safety of the dam and other aspects relating to implementation of conditions contained in the Government orders which have been decided in this case. (Paras 76 to 79)

       D.M. Dharmadhikari, J. (Dissenting Opinion) :

       Having carefully perused the opinion of learned Brother S. Rajendra Babu J. I find myself unable to agree with him that no directions to the respondents in this Writ Petition are required. In my considered opinion, looking to the dimensions and implications of the case on environment and human rights a monitoring mechanism is required to be set up and activated to ensure compliance of the conditions on which clearance was granted to the construction of a dam in Himalayan valley near Tehri. It may be legal but not efficacious to transfer this writ petition under Article 32 of the Constitution of India to the High Court of Uttaranchal for monitoring the compliance of the conditions on which environmental clearance was given to the Tehri Dam Project. With utmost respect, therefore, I have considered it necessary to record my separate opinion with conclusions containing the directions which are required to be issued to the respondents in this writ petition. (Para 83)

       In this writ petition under Article 32 of the Constitution of India filed by the petitioners in public interest, directions are sought to be issued to the respondents, representing the authorities and Corporation of ­Union and State Governments, to take necessary measures for protecting environment and human rights which are likely to be adversely affected by construction of Dam in the Valley of Himalayas near Tehri town of the new State of Uttaranchal. (Para 85)

       In my considered opinion, therefore, the present status of dam project, keeping in view the pari passu condition on which "environmental clearance" has been granted by MoEF, calls for issuing following directions to the respondents who represent various Ministries & departments of Central and State Government as also the Corporation to which the project has been entrusted for implementation.

       (1) The Central Government in terms of the recommendations of Expert Committee for Environmental Impact Assessment as contained in Schedule III of the Notification dated 27 January, 1994 issued in exercise of powers under sub-section (i) and Cl.V of sub-section (2) of Section 3 of Environment (Protection) Act 1986 read with Cl. (f) of sub-Rule (3) of Rule 5 of Environment (Protection) Act 1986 shall constitute a Committee of Experts and representatives of NGOs (if not already constituted) for the purpose of investigating, ascertaining and reporting whether the pari passu condition laid down in the environment clearance of the Project have been fulfilled or not by the authorities of the Project. The aforesaid committee will inspect and report on the status of the work to the Central Government every three months and in case the conditions, as laid down in the clearance, are not fulfilled recommend the remedial or corrective measures/actions.

       (2) To take care of the safety aspect, until 3-D Non-Linear Analysis and Dam Break Analysis are completed as recommended by the Committee on safety and the result assessed by the aforesaid Expert Committee is submitted to the Central Government, diversion tunnels T1/T2 for impoundment of the Reservoir shall not be closed.

       (3) The Expert Committee for environment Impact Assessment constituted under Schedule III of Notification dated 27th January 1994 will also look into and submit status report on the progress of resettlement and rehabilitation measures. There will be no impoundment of the Reservoir until resettlement and rehabilitation work is fully completed in all respects.

       (4) An effective Grievance Redressal Cell headed by an independent expert in the field of social science shall be set up by the State Government with the help of Central Government for solving rehabilitation and resettlement problems of the oustees of the Project. The Grievance Redressal Cell shall submit its status report every three months to the Expert Committee constituted under Schedule III of the notification. (Para 138)

       (ii) Constitution of India—Article 32—Writ petition—Tehri Dam Project, safety and environmental aspects—Powers of Court—This Court cannot sit in judgment over the cutting edge of scientific analysis relating to safety of any project—If the situation demands, Courts should take only a detached decision based on pattern of well ­settled principles of administrative law.

       Held : This Court cannot sit in judgment over the cutting edge of scientific analysis relating to the safety of any project. Experts in science may themselves differ in their opinions­ while taking decisions on matters related to safety and allied aspects. The opposing viewpoints of the experts will also have to be given due consideration after full application of mind. When the Government or the concerned authorities after due consideration of all viewpoints and full application of mind took a decision, then it is not appropriate for the Court to interfere. Such matters must be left to the mature wisdom of the Government or the implementing agency. It is their forte. In such cases, if the situation demands, the Courts should take only a detached decision based on the pattern of the well-settled principles of administrative law. If any such decision is based on irrelevant consideration or non-consideration of material or is thoroughly arbitrary, then the Court will get in the way. Here the only point to consider is whether the decision-making agency took a well-informed decision or not. If the answer is yes , then there is no need to interfere. The consideration in such cases is in the process of decision and not in its merits. (Para 19)

       In the present case when once a decision had been given by this Court on safety aspects on an earlier occasion and thereafter the matter was again examined by the Government through different agencies and had taken a decision as to the necessity of further test by way of abundant caution should be relevant or not, we do not think, we can sit in judgment over such decision, particularly when there is no difference of opinion among the Experts as to the safety of the dam. It is only by way of abundant caution such studies were suggested by four out of five experts. Thus the usefulness or necessity thereof itself being in doubt, as expressed in various reports, and text books relied on by either side, the principle stated in A.P. Pollution Control Board s case (supra) cannot be applied. In that decision it was noticed that inadequacies of science had led to the precautionary principle leading to the principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed on those who want to change the present state of affairs. (Para 20)

       (iii) Constitution of India—Article 21—Clean environment, a guaranteed fundamental right—Right to development is also declared as a component of Art. 21—Concept of ‘sustainable development’ is to be treated as integral part of ‘life’ under Art. 21—To ensure sustainable development is one of the goals of Environment (Protection) Act, 1986—Duty of State to make sure fulfilment of conditions or directions ­under the Act.

       Held : 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 Article 21. (Para 22)

       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 work - Development 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. (Para 23)

       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 Article 21. (Para 24)

       To ensure sustainable development is one of the goals of Environmental Protection Act, 1986 (for short the Act ) and this is quiet necessary to guarantee right to life under Article 21. If the Act is not armed with the powers to ensure sustainable development, it will become a barren shell. In other words, sustainable development is one of the means to achieve the object and purpose of the Act as well as the protection of ‘life’ under Article 21. Acknowledgment of this principle will breath new life into our environmental jurisprudence and constitutional resolve. Sustainable development could be achieved only by strict compliance of the directions under the Act. The object and purpose of the Act – "to provide for the protection and improvement of environment" could only be achieved by ensuring the strict compliance of its directions. The concerned authorities by exercising its powers under the Act will have to ensure the acquiescence of sustainable development. Therefore, the directions or conditions put forward by the Act need to be strictly complied with. Thus the power under the Act cannot be treated as a power simpliciter, but it is a power coupled with duty. It is the duty of the State to make sure the fulfillment of conditions or direction under the Act. Without strict compliance, right to environment under Article 21 could not be guaranteed and the purpose of the Act will also be defeated. The commitment to the conditions thereof is an obligation both under Article 21 and under the Act. The conditions glued to the environmental clearance for the Tehri Dam Project given by the Ministry of Environment vide its Order dated July 19,1990 has to be viewed from this perspective. (Para 25)

       (iv) Environment (Protection) Act, 1986—Strict compliance of directions under the Act—Tehri Dam Project—­Directions or conditions put forward by the Act need to be strictly complied with—Duty of State to obtain environmental clearance for Tehri Dam Project. (Paras 25 to 38)

       (v) Environment (Protection) Act, 1986—Tehri Dam Project—Environmental conditions—Catchment Area Treatment—Responsibility of State.

       Held : The present status in this regard is that the Catchment Area Treatment was under implementation by the State Forest Department in the catchment of high and very high erodability classification based on the earlier CAT plan formulated by the State Forest Department under which an area of 22,746 hectares was treated upto March 1994. Subsequently, it was decided to treat only the direct draining catchment of high and very high erosion class based on the satellite images. Accordingly, a CAT Plan, 1994 was formulated and submitted to MoEF for treatment of an additional catchment area of 13500 hectares in addition to area earlier treated, i.e., a total area of [22746+13500] equivalent to 36246 hectares. MoEF, however, directed in July 1998 that 52204 hectares of high and very high erosion classification, in the entire catchment, was to be treated at the cost of Tehri Project. This requirement was incorporated by the Government in its decisions on the HRC recommendations. As decided by the Government, the project is now doing CAT in the entire degraded catchment in area of high and very high erosion class after excluding the areas already treated. An area of 37591.4 hectares has already been treated till December 2001. The soil conservation measures are being implemented as part of the CAT Programme for upgrading the environment of the region. The remaining area is proposed to be treated by 2002-2003. The CAT Programme is presently being implemented by the Government of Uttaranchal. (Para 43)

       (vi) Environment (Protection) Act, 1986—Tehri Dam Project—Impact on human health—Strict compliance to maintain ecological balance.

       Held : Right to health is a fundamental right under Article 21. Protection of this is inextricably linked with the clean environment. Clean and healthy environment itself is a fundamental right. This position was reiterated by this Court in M.C. Mehta v. Union­ of India (2001) 3 SCC 756. Therefore the impact of the Project on Human Health cannot be given a go by. It has to be seriously scrutinized. All the above-discussed aspects aimed at maintaining the ecological balance and protecting human rights are integral elements of sustainable development. Rupture to the Himalayan environment, if any, due to the dam construction could only be compensated by strictly complying with these conditions attached to the clearance. These aspects are vital for life and sustainable development of the area. If these aspects are not complied with, the human life and whole Himalayan environment will be the casualty. Only its strict compliance could maintain the ecological balance. (Paras 53 and 54)

       (vii) Constitution of India—Article 32—Tehri Dam Project—Rehabilitation of oustees—Overreaching projected benefits from the dam should not be counted as an alibi to deprive fundamental rights of oustees—Rehabilitation programme—Formulation of. (Paras 58 to 73)