Narmada Bachao Andolan vs. Union of India - International ...

which, inter alia, consisted of a construction of a low dam. It was the case of the plaintiff that the construction ofthe project would destroy hundreds of thousands of trees and enormous grain, fish and other wild life will losetheir habitat and perish. It was contended that the defendants were proceeding in violation of law by not complyingwith the requirements of National Environment Policy Act, 1969 (NEPA). Plaintiff, inter alia, sought an injunctionfor restraining the undertaking of the project in violation of the said Act. The District Court held that notwithstandingthe substantial amount of work that had already been done in connection with the project, the failure to satisfy fulldisclosure requirement of NEPA injunction would be issued to halt any further construction until requirements ofNEPA had been complied with; that even though there was no act like NEPA in India at the time when environmentalclearance was granted in 1987, nevertheless by virtue of Stockholm Convention and Article 21 of the Constitutionthe principles of Sierra Club decision should be applied.153. In India notification had been issued under Section 3 of the Environmental Act regarding prior environmentalclearance in the case of undertaking of projects and setting up of industries including inter-state river projects.This notification has been made effective from 1994. There was, at the time when the environmental clearancewhich was granted in 1987, no obligation to obtain any statutory clearance. The environmental clearnace whichwas granted in 1987 was essentially administrative in nature, having regard and concern of the environment in theregion. Change in environment does not per se violate any right under Article 21 of the Constitution of Indiaespecially when ameliorative steps are taken not only to preserve but to improve ecology and environment and incase of displacement, prior relief and rehabilitation measures take place pari passu with the construction of thedam.154. At the time when the environmental clearance was granted by the Prime Minister whatever studies wereavailable were taken into consideration. It was known that the construction of the dam would result in submergenceand the consequent effect which the reservoir will have on the ecology of the surrounding areas was also known.Various studies relating to environmental impact, some of which have been referred to earlier in this judgment,had been carried out. There are different facets of environment and if in respect of a few of them adequate data wasnot available it does not mean that the decision taken to grant environmental clearance was in any way vitiated.The clearance required further studies to be undertaken and we are satisfied that this has been and is being done.Care for environment is an on going process and the system in place would ensure that ameliorative steps are takento counter the adverse effect, if any, on the environment with the construction of the dam.155-156. Our attention was also drawn to the case of Tennessee Valley Authority v. Hiram G. Hill [437 US 153, 57L Ed 2d 117, 98 S Ct 2279] where the Tennessee Valley Authority had begun construction of the Tellico Dam andreservoir project on a stretch of Little Tennessee River. While major portion of the dam had been constructed theEndangered Species Act, 1973 was enacted wherein a small fish popularly known as the snail darter was declaredan endangered species. Environmental groups brought an action in the Unites States District Court for restrainingimpounding of the reservoir on the ground that such an action would violate the Endangered Species Act bycausing the snail darter extinction. The District Court refused injunction but the same was granted by the UnitedStates Court of Appeal. On further appeal the US Supreme Court held that the Endangered Species Act prohibitedthe authority for further impounding the river. The said decision has no application in the present case becausethere is no such act like the Endangered Species Act in India or a declaration similar to the one which was issuedby the Secretary of the Interior under that Act. What is, however, more important is that it has not been shown thatany endangered species exists in the area of impoundment. In Tennessee Valley Authority case it was an acceptedposition that the continued existence of snail darter which was an endangered species would be completelyjeopardised.157. Two other decisions were referred to by Shri Shanti Bhushan – Arlington Coalition on Transportation v.John. A Volpe [458 F.2d 1323 (1972)] and Environmental Defense Fund. Inc v. Corps of Engineers of UnitedStates Army [325 F.Supp.749 (1971)]. In both these decisions it was decided that the NEPA would be applicableeven in case of a project which had commenced prior to the coming into force of the said Act but which had notbeen completed. In such cases there was a requirement to comply with the provisions of NEPA as already noticedearlier. The notification under Section 3 of the Environment Protection Act cannot be regarded as having anyretrospective effect. The said notification dated 27 January 1994, inter alia, provides as follows:Now, therefore, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2)of Section 3 of the Environment (Protection) Act, 1986 (29 of 1986) read with clause (d) of sub-rule (3)of rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby directs that onand from the date of publication of this notification in the Official Gazette expansion or modernisation33