Narmada Bachao Andolan v. Union of India & Others SC 319 of 1994, 18 Oct. 2000

Narmada Bachao Andolan v. Union of India & Others SC 319 of 1994, 18 Oct. 2000

Dr. A. S Anand CJI, SP Bharucha and BN Kirpal, JJ.

Constitution of India

Fundamental rights - Decision to build dam taken in pursuance to which land acquired --- whether fundamental rights of oustees violated---- whether forcible displacement of tribals from their land violative of their fundamental rights--constitution of India Art. 21 --- Inter State Water Disputes Act 1956.

Constitution of India

Judiciary - Supreme Court --- Jurisdiction--whether courts, in exercise of their jurisdiction, can transgress into field of policy decision.

Environment protection and Control

Decision to build dam taken - In 1987 ministry of Environment and Forest according environmental clearance to build dam subject to certain conditions - whether environment clearance granted in 1987 without proper application of mind.

Limitation of Actions

Laches--- whether petitioner agitating against dam since 1986 guilty of laches in approaching the court in 1994--whether laches applicable to public interest litigation --- whether in cases of petitions termed as PIL ordinary principles applicable to litigation will not apply

Public Interest Litigation

Decision to build dam taken in pursuance of agreement arrived at between Sates of M. P and Gujarat ---- M. P not ratifying agrrement and matter referred to Tribunal --- Tribunal giving award, giving State of Gujarat right to construct dam upto height of 455 ft---whether issue decided by tribunal binding on states--

Water

Dams--Decision to build dams--- construction of dams commencing in 1987--- whether project in national interest.

The petitioner is an anti-dam organisation in existence since 1986 but has chosen to challenge the clearance given in 1987 by filling a writ petition in 1994. The petitioner which had been agitating against the dam since 1986 is guilty of laches in not approaching the court at an earlier point of time.

The petitioners have been agitating against the construction of the dam since 1986, before environmental clearance was given and construction started. It has, over the years, chosen different paths to oppose the dam. Having failed in the attempt to stall the project the petitioner has resorted to court proceedings by filing this writ petition long after the environmental clearance was given and construction started. The pleas relating to height of the dam and the extent of submergence, environment studies and clearance, hydrology, seismicity and other issues, except implementation of relief and rehabilitation.

The court justified, having entertained this petition with a view to satisfy itself that there has been proper implementation of the relief and rehabilitation measures at least to the extent they have been ordered by the tribunal's award. In short it was only the concern of this court for the protection of the fundamental rights of the oustees under Art. 21 of the Constitution of India which led to the entertaining of this petition.

Any issue which has been decided by the tribunal would, in law, be binding on the respective states. Once the award is binding on the states, it will not be open to a third party like the petitioner to challenge the correctness thereof. In terms of the award, the State of Gujarat has a right to construct a dam upto the height of 455 ft and, at the same time, the oustees have a right to demand relief and resettlement as directed in the award.

The ILO Convention 107 stipulated that tribal population shall not be removed from their lands without their free consent from their habitual territories except in accordance with national laws and regulations for reasons relating to national security or in the interest of national economic development. The said article clearly suggested that when the removal of the tribal population is necessary as an exceptional measure, they shall be provided with land of quality at least equal to that of the land previously occupied by them and they shall be fully compensated for any resulting loss or injury.

From various documents referred to it is more than evident that the Government of India was deeply concerned with the environmental aspects of the Narmada Sagar and Sardar Sarovar Project. In as much as there was some difference of opinion between the Ministries of Water Resources and Environment and Forests with regard to the grant of environmental clearance, the matter was referred to the Prime Minister. Therefore, series of discussions took place in the Prime Minister's Secretariat and the concern of the Prime Minister with regard to the environment and desire to safeguard the interest of the tribals resulted in some time being taken. The Prime Minister gave environmental clearance on 13 April 1987 and formal letter was issued thereafter on 24 June 1987.

It is not possible, in view of the aforesaid state of affairs, for the court to accept the contention of the petitioner that the environmental clearance of the project was given without application of mind.

Though, there was some slippage in Madhya Pradesh, however, overall works by and large were on schedule. This clearly showed that the monitoring of the catchment treatment plan was being done by the Environmental Sub-group quite effectively.

It is thus seen that there is in place an elaborate network of authorities which have to see to the execution and implementation of the project in terms of the award. All aspects of the project are supervised and there is a Review Committee which can review any decision of the Narmada Control Authority and each of three rehabilitating states have set up an independent Grievances Redressal Authority to take care that the relief and rehabiltiation measures are properly implemented and the grievances, if any, of the oustees are redressed.

The court further held that it is satisfied, as more than adequate steps are being taken by the State of Gujarat not only to implement the award of the tribunal to the extent it grants relief to the oustees but the effort is to substantially improve thereon and, therefore, continued monitoring by this court may not be necessary. The rehabilitation package contained in the award of the tribunal as improved further by the State of Gujarat and the other states prima facie shows that the land required to be allotted to the tribals is likely to be equal, if not better, than what they had owned.

The allegation that the said project was not in the national or public interest is not correct seeing the need of water for a burgeoning population which is most critical and important. Keeping in view the need to augment water supply, it is necessary that water storage capacities have to be increased adequately in order to ward off the difficulties in the event of monsoon failure as well as to meet the demand during dry season.

The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were. At the rehabilitation sites, they will have more better amenities than which they enjoyed in their tribal hamlets. The gradual assimilation in the main stream of the society will lead to betterment and progress.

The courts, in the exercise of their jurisdiction, held will not transgress into the field of policy decision. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means over run in costs and the decision to undertake a project, if challenged after the execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them.

In a democratic set up, it is for the elected government to decide what project should be undertaken for the benefit of the people. Once such a decision had been taken that unless and until it can be proved or shown that there is a blatant illegality in undertaking the project or in its execution, the court ought not to interfere with the execution of the project.

While issuing directions and disposing of this case, two conditions have to be kept in mind, (i)the completion of project at the earliest and (ii)ensuring compliance with conditions on which clearance of the project was given including completion of relief and rehabilitation work and taking of a meliorative and compensatory measures for environmental protection in compliance with the scheme framed by the Government thereby protecting the rights under Art. 21 of the Constitution. Keeping these principles in view, the court issued the following directions.

(1) Construction of the dam will continue as per the award of the tribunal

(2) As the relief and rehabilitation sub-group has cleared the construction up to 90 meters, the same can be undertaken immediately. Further raising of the height will be only pari passu with the implementation of the relief and rehabilitation and on the clearance by the Relief and Rehabilitation Sub-group after consulting the three Grievances Redressal Authorities.

(3) The Environment Sub-group will consider and give, at each stage of the construction of the dam, environment clearance before further construction beyond 90 meters can be undertaken.

• The permission to raise the dam height beyond 90 meters will be given by the Narmada Control Authority, from time to time, after it obtains the above mentioned clearances from the Relief and Rehabilitation Sub-group and the Environment Sub-group.

• The States of Madhya Pradesh, Maharashtra and Gujarat are directed to implement the award and give relief and rehabilitation to the oustees in terms of the packages offered by them and these States shall comply with any direction in this regard which is given either by the NCA or the Review Committee or the Grievances Redressal Authorities.
  
  
• Even though there has been substantial compliance with the conditions imposed under the environmental clearance the NCA and the Environment Sub-group will continue to monitor and ensure that all steps are taken not only to protect but to restore and improve the environment.
  
  
• The NCA will within four weeks from today draw up an action plan in relation to further construction and the relief and rehabilitation work to be undertaken. Such an action plan will fix a time frame so as to ensure relief and rehabilitation pari passu with the increase in the height of the dam.
  
  
• The Review Committee shall meet whenever required to do so in the event of there being any un-resolved dispute on an issue which is before the NCA. In any event the Review Committee shall meet at lest once in three months so as to oversee the progress of construction of the dam and implementation of the R & R programmes.

If for any reason serious differences in implementation of the award arise and the same cannot be resolved in the Review Committee, the Committee may refer the same to the Prime Minister whose decision, in respect thereof, shall be final and binding on all concerned.

(9) The Grievances Redressal Authorities will be at liberty, in case the needs arises, to issue appropriate directions to the respective states for due implementation of the R & R programmes and in case of non-implementation of its directions, the GRAs will be at liberty to approach the Review Committee for appropriate orders.

• Every endeavour shall be made to see that the project is completed as expeditiously as possible.

The court held, When such projects are undertaken and hundreds of crores of public money is spent, individual or organisations in the garb of PIL cannot be permitted to challenge the policy decision taken after a lapse of time. It is against national interest and contrary to the established principles of law that decisions to undertake development projects are permitted to be challenged after a number of years during which period public money has been spent in the execution of the project.