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 was 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 to recommend the priorities. This Ad-hoc Committee recommended as an initial step detailed investigations for the following 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 the issues relating to the 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 23rd February, 1972, the said issues were decided against the respondents herein. It was held that the Notification of the Central Government dated 16th October, 1969 referring the matters raised by the State of Rajasthan by its complaint was ultra vires of the Act but constitution of the Tribunal and making a reference of the water dispute regarding the Inter-State river Narmada was not ultra vires of the Act and the Tribunal had jurisdiction to decide the dispute referred to it at the instance of State of Gujarat. It further held that the proposed construction of the Navagam project involving 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 this Court and obtained a stay of the proceedings before the Tribunal to a limited extent. Therein the Supreme Court directed that the proceedings before the Tribunal should be stayed but 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, examine the current best estimates of all costs (social, environmental, financial), benefits and alternatives in order to determine whether the project is required in its present form in the national interest or whether it needs to be re-structured/modified, (b) that no work should proceed till environment impact assessment had been fully done and its implications for the projects viability being assessed in a transparent and participatory manner. This could at best be done only as a part of the comprehensive review of the project. This contention was partly supported by the State of Madhya Pradesh insomuch as it also pleaded for 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 now adequate steps had 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 is contended that the cause of the tribals and environment was being taken up by the petitioners not with a view to benefit the tribals but the real reason for filing this petition is to see that a high dam is not erected per se. It was also submitted that at this late stage this Court should not adjudicate on the various issues raised specially those which have 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, (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 have been rehabilitated shall have the option to continue to reside where they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they shall not be made at all liable in monetary or other terms on this account. Thus the writ petition was allowed
FOR COMMON MAN:- The decision clearly lays that t he Court will not take any step-in such direction without examining the Environmental Impact Assessment Report of the said project. The consequences of the projects and the effect are the most important factor without which it cannot be given clearance.
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