Facts in Brief

In 1946, the then Government of Central Provinces and Berar, and the Government of Bombay, requested the Central Waterways, Irrigation and Navigation Commission (CWINC) to take up investigations on the Narmada river system for basin-wise development of the river, with flood control, irrigation, power and extension of navigation as the objectives in view. The study commenced in 1947, and most of the sites were inspected by engineers and geologists, who recommended detailed investigation for seven projects.

Thereafter, in 1948, the Central Ministry of Works, Mines & Power appointed an Ad-hoc Committee headed by Shri A.N. Khosla, Chairman, CWINC, to study the projects and recommend priorities. This Ad-hoc Committee recommended, as an initial step, detailed investigations for certain projects, keeping in view the availability of men, materials and resources. Based on the recommendations of the aforesaid Ad-hoc Committee, estimates for investigations of the Bargi, Tawa, Punasa (Narmadasagar) and Broach Projects were sanctioned by the Government of India in March 1949.

The Tribunal framed 24 issues, which included issues relating to Gujarat having a right to construct a high dam with FRL 530 feet and a canal with FSL 300 feet or thereabouts. Issues 1(a), 1(b), 1(A), 2, 3 and 19 were tried as preliminary issues of law, and by its decision dated 23 February 1972, the said issues were decided against the Respondents herein. It was held that the Notification of the Central Government dated 16 October 1969, referring the matters raised by the State of Rajasthan by its complaint, was ultra vires the Act; but the constitution of the Tribunal and the making of a reference of the water dispute regarding the inter-State river Narmada was not ultra vires the Act, and the Tribunal had jurisdiction to decide the dispute referred to it at the instance of the State of Gujarat. It further held that the proposed construction of the Navagam project, involving the consequent submergence of portions of the territories of Maharashtra and Madhya Pradesh, could form the subject matter of a “water dispute” within the meaning of Section 2(c) of the 1956 Act.

Against the aforesaid judgment of the Tribunal on the preliminary issues, the States of Madhya Pradesh and Rajasthan filed appeals by special leave to the Supreme Court, and obtained a stay of the proceedings before the Tribunal to a limited extent. The Supreme Court directed that the proceedings before the Tribunal should be stayed, but that discovery, inspection and other miscellaneous proceedings before the Tribunal may go on. The State of Rajasthan was directed to participate in these interlocutory proceedings. The present Writ Petition under Article 32 of the Constitution was filed by the Narmada Bachao Andolan to challenge the said decision.

Arguments

The Petitioner argued: (a) that it was necessary for some independent judicial authority to review the entire project, and to examine the current best estimates of all costs (social, environmental, financial), benefits and alternatives, in order to determine whether the project was required in its present form in the national interest, or whether it needed to be restructured or modified; and (b) that no work should proceed till an environmental impact assessment had been fully done, and its implications for the project’s viability assessed in a transparent and participatory manner. This could, at best, be done only as a part of a comprehensive review of the project. This contention was partly supported by the State of Madhya Pradesh, insofar as it also pleaded for a reduction in the height of the dam, so as to reduce the extent of submergence and the consequent displacement.

This was refuted by the Respondent States. While accepting that initially the relief and rehabilitation measures had lagged behind, they argued that adequate steps had now been taken to ensure proper implementation of relief and rehabilitation, at least as per the Award. The Respondents also questioned the bona fides of the Petitioners in filing this petition. It was contended that the cause of the tribals and the environment was being taken up by the Petitioners not with a view to benefiting the tribals, but that the real reason for filing this petition was to see that a high dam was not erected per se. It was also submitted that, at this late stage, the Court should not adjudicate on the various issues raised, especially those which had been decided by the Tribunal’s Award.

Judgment

The Supreme Court held: (a) that the Petitioners were not guilty of any laches in that regard; and (b) given what had been held in respect of the environmental clearance, when the public interest was so demonstrably involved, it would be against public interest to decline relief only on the ground that the Court was approached belatedly.

The Court declared that if, for any reason, the work on the Project — now or at any time in the future — could not proceed and the Project was not completed, then all the oustees who had been rehabilitated shall have the option to continue to reside where they had been rehabilitated, or to return to where they were ousted from, provided such place remained habitable; and they shall not be made liable in monetary or other terms on this account. The writ petition was accordingly allowed.

For the Common Man

The decision clearly lays down that the Court will not take any step in such a direction without examining the Environmental Impact Assessment Report of the said project. The consequences of the project, and its effects, are the most important factors, without which clearance cannot be given.