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Reportable * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP (C) No. 7506 of 2007 and WP (C) No. 6729 of 2007 % Reserved on : February 02, 2008 Pronounced on : November 03, 2008 1. WP (C) No. 7506/2007 Rajendra Singh & Ors. . . . Petitioners through : Mr. Sanjay Parikh with Mr. Jitin Sahni, Ms. Mamta Saxena, Mr. Ritwik Dutta and Mr. Rahul Chaudhary, Advocates VERSUS Government of NCT of Delhi & Ors. . . . Respondents through : Dr. A.M. Singhvi, Sr. Adv. with Mr. Sumit Pushkarna, Advocate for the respondent No.1/GNCTD. Mr. G.E. Vahanvati, Solicitor General with Mr. Suresh Kait for the respondent No.2/UOI. Mr. Rajiv Bansal, Advocate for the respondent No.5/DDA. Mr. V.K. Shali, Advocate for the respondent No.6/DMRC. Mr. S.M. Aggarwal, Convener Yamuna Monitoring Committee. 2. WP (C) No. 6729/2007 Vinod Kumar Jain . . . Petitioner through : Mr. Arvind Sah, Advocate VERSUS Union of India & Ors. . . . Respondents through : Mr. G.E. Vahanvati, Solicitor General with Mr. Suresh Kait for the respondent No.1/UOI. Mr. Rajiv Bansal for resp.No.3/DDA. WP (C) No. 7506/2007 nsk Page 1 of 96 Mr. S.M. Aggarwal, Convener, YMC CORAM :- THE HON‟BLE MR. JUSTICE A.K. SIKRI THE HON‟BLE MS. JUSTICE REKHA SHARMA 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J.
1. "Delhi, as an idea as well as a space, has not stood still in the decades since Independence. From its stolid imperial beginnings to the extravagant multiple universes that make up the city today, Delhi has experienced a rapidity of change unmatched by any other Indian metropolis. If New Delhi was the capital Britain‟s Indian Empire, post independence India created newer Delhi, a new capital, but one perched securely on the foundations of the older one. Its purpose was to showcase that new nation‟s commitment to modernity and development. A well-established belief of that time, and one advocated by Jawaharlal Nehru, India‟s first prime minister, was that creating an egalitarian, progressive environment would lead to an egalitarian and progressive society" - Ranjana Sengupta "Delhi Metropolitian The making of an unlikely city" Penguin Brothers (2007), p. 44.
2. Keeping the above conviction in mind, the respondents feel that the capital city is all set to transform itself for the upcoming XIX Commonwealth Games, 2010 (hereinafter referred to „CWG-2010‟). WP (C) No. 7506/2007 nsk Page 2 of 96 It is going to be the first mega-event hosted by the city since the 1982 Asian Games, a gap of nearly thirty years. Much has changed, and yet much has remained unchanged in this time. Commonwealth Games, originated as the British Empire Games in 1930, are held every four years in a commonwealth country. Like the Olympics, these games are termed as a hallmark event as the infrastructure and facilities built for the event are geared to serve the host city - long after the event.
3. On 13.9.2003, the Games were allotted to Delhi by the Commonwealth Games Federation and are now scheduled to be held on 3rd to 14th October, 2010. Thus, the CWG-2010 are being hosted in Delhi pursuant to a commitment made by Indian Olympic Association (hereinafter referred to as the „IOA‟) in the form of an agreement, in which the IOA has undertaken to host the games in India with the requisite standards and requirement of the Commonwealth Games Federation. Thus, the city is planning a major overhaul of its urban infrastructure as well as its sporting facilities to meet the said standards and requirements. The city infrastructure being developed includes construction of games village, new sporting facilities, modernization of existing sporting facilities and stadia; new flyovers, bridges and stadia; transport connectivity including parking facilities; improvement and widening of roads; augmentation of power and water supply, among other services.
4. While governmental agencies, including the Delhi Development Authority (DDA), are boasting about the developmental projects WP (C) No. 7506/2007 nsk Page 3 of 96 undertaken in this behalf, some environmentalists are terribly upset. Reason - Much of the construction activity is coming up on the periphery of Yamuna river. According to them, it is on the riverbed itself which is not only going to destroy the river but would pose severe threat to the city as well.
Thus, being aggrieved by the infrastructure planned on the Yamuna riverbed, the petitioners herein, who are environmentalists, have approached this Court with a view to halt this part of the construction. The said construction includes the Delhi Metro Depot called Yamuna Depot, the Metro Mall and the Games Village for the proposed CWG-2010. The basic contention of the petitioners is to the effect that the said construction will threaten the ecological integrity of the River besides causing irreversible damage to the floodplain. The petitioners have made prayer for a writ of mandamus and order/direction/declaration whereby :-
"(a) Declaring the respondent to remove any construction, fill up, digging etc made so far and restore the ecology of Yamuna river bed.
(b) Directing that Yamuna river bed in Delhi is an ecologically sensitive area and hence to be protected and preserved.
(c) Directing that any construction in the Yamuna river bed will permanently destroy the ecology of river Yamuna, its ground water recharge ability and will be violative of public trust doctrine, precautionary principle which are part of Article 21 of the Constitution.
(d) Directing that the respondents should locate an alternative site for the project/s as pointed out in the EAC recommendations dated 3.11.06.
(e) Directing setting aside of EC dated 14.12.06 as being violative of Article 21 of the Constitution.
(f) Directing setting aside of EC dated 22.1.07; 29.3.07;
and 2.4.07 as being arbitrary, whimsical, amla fide and violative of Article 14 and 21 of the Constitution.WP (C) No. 7506/2007 nsk Page 4 of 96
(g) Directing the respondent to restore the ecology of river Yamuna in accordance with the „Polluters Pay Principle.‟
(h) Pass any such other order as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case."
5. On the other hand, the Respondents herein (Government of Delhi, Ministry of Environment and Forest, Ministry of Youth Affairs & Sports, Ministry of Urban Development and Poverty, Delhi Development Authority, and Delhi Metro rail Corporation Ltd.) submit that the said construction is being done after extensive deliberations for the purpose of development of the river Yamuna and after obtaining required clearances from the authorities concerned. They are emphatic that events like CWG-2010 happen once in decades and will surely have the ability to transform the capital city.
6. Thus, the entire matter revolves around the two distinguishing but contrasting interests: Development of the city coupled with National Prestige on the one hand and Ecology of the River Yamuna on the other. The respondents contend that the Commonwealth Games are a matter of national pride and any order prohibiting the construction would have an impact on the reputation of the country so far as international community is concerned. For the petitioners, that is secondary, and the prime consideration should be „Save the Environment‟. They argue that the impact of the construction would have irreversible impact and cause permanent damage to the ecologically fragile environment of the river Yamuna, its bed, banks, WP (C) No. 7506/2007 nsk Page 5 of 96 basin and flood plain. As per them, the concerns of reputation cannot be permitted to impact the constitutional rights of the citizens or to override the health of the citizens; the river and the environment.
7. PRELIMINARY OBJECTION Before we delve on the core issue, we would like to address the preliminary submission raised by the respondents to the maintainability of this writ petition.
8. The preliminary objection raised is to the effect that the petition is grossly barred by delay and latches. The Respondent DDA submits that the change of land use for the site falling in Zone O was done on 21.09.1999 from "agricultural and water body" to "public and semi-public" purpose. The site in question was finalized way back in 2003 and DDA had also put up a notice board at the site indicating that the site was meant for Commonwealth Village Games Complex. A period of five years has elapsed since then. Further, the global Tender Process for Public Private Partnership ("PPP") participation in the residential portion of the Commonwealth Games project was floated in December 2006 and was completed in June 2007, thereby creating 3rd party rights. Therefore, the writ petition deserved to be dismissed on the sole ground of delay. The Respondent DMRC has also raised an objection on the similar lines and submits that the proposal to construct the depot and the Yamuna Bank Station was taken up in 2002 while the challenge to the said action is raised by the petitioners in the year 2007. Therefore, the action of the WP (C) No. 7506/2007 nsk Page 6 of 96 petitioners after a lapse of 5 years is fatal as no reasonable explanation is given for the same. In support, reliance was placed on the following judgments:-
(i) Rabindranath Bose v. Union of India (1970) 1 SCC 84
No relief should be given to the petitioner who without reasonable explanation approaches the Court under Article 32 after inordinate delay.
(ii) Pt. Girdharan Prasad v. State of Bihar (1980) 2 SCC 83
Delay of more than 17 months not explained - Writ petition ought to be dismissed.
(iii) S.S.Moghe v. Union of India (1981) 3 SCC 271 Writ challenge liable to be rejected on the preliminary ground of delay.
(iv) State of M.P. v. Nand Lal Jaiswal (1986) 4 SCC 566
Inordinate delay and non-satisfactory explanation - High Court must decline to intervene. Unexplained delay coupled with creation of third party rights is an important factor.
(v) State of Maharashtra v. Digambar (1995) 4 SCC 685
Even though legal right might have otherwise been infringed, the delay in filing petition will render the petitioner not entitled to any relief.
(vi) Municipal Corporation of Greater Bombay v. I.B.I.
(1996) 11 SCC 500 WP (C) No. 7506/2007 nsk Page 7 of 96 When there‟s inordinate delay in filing writ petition and acquisition proceedings have become final, court should not interfere to quash notifications.
(vii) Larsen & Tourbo v. State (1998) 4 SCC 387 Writ petition if entertained belatedly would be putting a premium on dilatory tactics.
(viii) Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 PIL should be thrown out at the threshold if it is challenged after the commencement of execution of the project.
(ix) Kailash Chand Sharma v. State of Rajasthan (2002) 6 SCC 562 Writ petition filed after one year and no explanation tenedered, ought to be dismissed.
(x) Chairman Md, BPL v. S. Gururaja (2003) 8 SCC 567
Writ petition after 1 year of taking possession, delay was of vital importance.
9. There may be some merit in the aforesaid submission. The Games were allotted to Delhi by the Commonwealth Games Federation (CGF) on 13.9.2003 and are scheduled to be held on 3rd to 14th October, 2010. This fact was widely publicized in the newspapers in 2003 itself alongwith the fact that the present site is chosen for the construction of the CommonWealth Games Village. Though the petitioners have their own explanation for approaching the Court after 4 years, i.e. in September-October 2007, we feel that they WP (C) No. 7506/2007 nsk Page 8 of 96 could have approached this Court somewhat earlier. Howsoever, at the same time the issue in hand, viz. preservation and protection of ecology of river Yamuna, is extremely important. The issue raised requires due deliberations and adjudication. Therefore, we would not like to throw this petition on this ground without discussing the merits thereof. At the same time, the delayed action will naturally have some bearing on the nature of directions which we propose to issue at the end.
SUBMISSION OF THE PETITIONERS
10. Frontal attack to the proposed and ongoing construction was led by Mr. Sanjay Parikh, Advocate, ably supplemented by Mr. Arvind Sah, Advocate and Mr. S.M. Aggarwal, Convener, Yamuna Monitoring Committee.
The foremost submission of the petitioners is that despite the recommendations of the NEERI that no residential or industrial facilities requiring permanent structures be provided on the river bed, the DDA as well as DMRC chose Yamuna riverbed for construction activities of permanent nature. The choice of riverbed by the DDA for construction of the CommonWealth Games Village and by the DMRC for the construction of metro lines, yard, depot and residential houses goes against the Constitutional obligation and is in breach of Doctrine of Public Trust. The Petitioners submit that the entire process of grant of the Environment Clearance by MoEF is faulty and vitiated.
WP (C) No. 7506/2007 nsk Page 9 of 96
11. The Environment Clearance dated 14.12.2006 was based on the recommendations of the Expert Appraisal Committee had permitted raising of temporary, dismantable structures. It had said that 'unless detailed studies lead to the conclusion that the proposed structures can be left behind permanently, the proposal should proceed with the assumption that the riverbed may have to be restored to the river'. This conclusion of the Expert Appraisal Committee was on the basis of NEERI 1999 Report which affirms independently NEERI 2005 Report though the said 2005 Report was concealed by DDA from the Expert Appraisal Committee. The DDA was already in possession of NEERI 2005 as the same was at the behest of DDA itself which had clearly stated that 'no permanent structure of residential or industrial nature be provided in the river bed'. It is further submitted that the modified clearance letter dated 22.1.2007 stipulated two conditions, i.e.: (i) That DDA could go ahead with only „planning‟ of their construction work; and (ii) That the actual work on construction will not start till such time that work on mitigation/abatement are identified; and none of these condition are complied with by the Respondents.
12. It is further argued that the NEERI 2005 Report also reviewed past development plans for river Yamuna in Delhi and had rejected the recommendations of CWPRS Report of 1993 for channelization of river as being unviable which may also pose considerable risk of flooding of the city area. The CWPRS Report of 2007 was on the basis of same data of earlier study conducted in May 1993. Out of WP (C) No. 7506/2007 nsk Page 10 of 96 the three studies which were recommended by the EAC of MoEF to the DDA, one on flooding risk, the other on river dredging and the third on extent of loss of recharge of ground water due to exclusion of the area under consideration, the second and third studies were not part of the CWPRS study.
13. The petitioners submit that the report of CWPRS, Pune submitted by DDA to MoEF was found to be not in conformity with the conditions of Environmental Clearance issued by MoEF dated 22 January 2007. The said study was inadequate and there were certain contradictions and lacunae according to MoEF itself but no further study was carried out. Therefore, there was no proper study of the magnitude of additional afflux in the river during high flow and none at all as far as extent of loss of recharge of groundwater is concerned. The MoEF found several shortcomings in the report of the CWPRS, Pune as under :-
(i) The study has not identified any particular area or part of the Yamuna catchment in Delhi which are prone to flooding during rainy season and how they should be protected.
(ii) Flooding or river Yamuna may result into blocking the drains and nallas discharging into river Yamuna which may lead to back flow from the drains and nallas causing flooding of low lying areas and water logging.
(iii) The study report is silent on this aspect.
(iv) The study report is based on earlier study conducted in May 1993. The study has not covered dredging aspect of river Yamuna in Delhi.
14. The MoEF still went ahead with the Environmental Clearance dated 14.12.2006 as modified by letters dated 22.1.2007 and 29.3.2007 under pressure from the DDA to allow construction of permanent WP (C) No. 7506/2007 nsk Page 11 of 96 structures in the riverbed. The DDA even before the clearance was granted informed EAC of MoEF vide various letters dated 19.01.2007, 6.03.2007, 2.04.2007 that they are going ahead with the planning and the construction of the structures. Hence the MoEF modified the Environmental Clearance, illegally and under pressure from DDA to allow construction of permanent structures without being in full know of the dangers involved. The steps taken after the Environmental Clearance dated 14.12.2006 and the discussions between the DDA and MoEF officials show arbitrariness in their actions, against their statutory and constitutional obligations of protecting the river Yamuna and its riverbed, compromising the very purpose of the EIA.
15. It is further submitted that the DDA did not consider any other site for the CommonWealth Games Village and rejected the MoEF suggestion of Safdarjang Airport as alternate site on indefensible grounds. The EAC in its meeting held on 1st December 2006 noted that DDA did not consider any other site for the Common Wealth Games Village and this was the only site shown to the Common Wealth Games Federation.
16. Further, no approval/permission from the Central Ground Water Authority [CGWA] has been obtained by the Respondents with respect to the said construction activities. The CGWA, a statutory authority created under Section 15 of the Environment (Protection) Act, 1986 by the MoEF in pursuance of the orders of the Hon‟ble Supreme Court, has notified on 2nd September 2000 the entire WP (C) No. 7506/2007 nsk Page 12 of 96 Yamuna Flood plain in Delhi as protected for ground water management and development and any construction, installation and drilling of any new structure for extraction of ground water resources for purposes other than drinking and domestic, has been prohibited. The relevant portion thereof reads as under :-
"Now, therefore the Authority in exercise of its powers and functions under section (v) of the sub section 2 of the Environment (Protection) Act, 1986 after considering the need for protecting the ground water resource and to ensure further development activities in consistence with protection and preservation of the ground water resource hereby declare the entire Yamuna Flood Plain area in the National Capital Territory of Delhi as "Notified Area" and prohibits the construction, installation and drilling of any new structure for extraction of ground water resources for purposes other than drinking and domestic.
Further no person/Organisation/ Agency (Govt or non-Govt.) shall undergraduate any scheme/Project of ground water development & management in the above said said region without prior permission of the Authority."
17. The next contention of the petitioners is to the effect that the creation of embankment cannot change the basic character and role of a riverbed. The construction of embankment does not mean that the present site is not part of a river bed. While an embankment may compromise the ability of the river bed and flood plain to play its rightful role of passage of flood waters and recharge of ground water it does not imply that the land ceases to remain a river bed and flood plain by such an encroachment over it. The River Yamuna and its eco system consisting of 9700 Hectare (97 sq. kms) of active flood plain/river bed in Delhi have been accepted by the Master Plan- Perspective 2021, NEERI 2005 Report and also by this Court in WP (C) No. 7506/2007 nsk Page 13 of 96 Baldev Singh Dhillon (supra). The NEERI Report 2005 at Page 1.3 clearly lays down the same in the following words:
"The Active Flood plain areas in NCT covers an area of 97 sq. km. The area lies between 23°28‟20" N and 28°51‟30", and 77°07‟E and 77°20‟37"E and falls in the Survey of India Toposheets No. 53H."
18. The petitioners further submit that the river Yamuna has been damaged, polluted and silted up in such a manner that the NEERI Report of 2005 gave a finding to the effect that the stretch/river has lost its carrying capacity. This has happened because of various authorities not taking care of the nature's bounty and not applying the precautionary principle. This riverbed and the entire ecosystem cannot be allowed to get further exhausted. At present what is required is not application of precautionary principle but infact sincere efforts to rejuvenate the river as an obligation under the Constitution of India and the Doctrine of Public Trust.
19. The learned counsel highlighted the danger of developing the Yamuna riverbed. The proposed Commonwealth Games Village on the Yamuna riverbed will only expose the Capital to the risk of severe flooding and will cause irreversible ecological damage. The construction will not only lead to reduction of ground water reserves, but will also completely stop the ground water recharge occurring from the flood plains. In the light of acute scarcity of fresh water in Delhi, reduction of the ground water reserve will further aggravate the water problem. It would destroy the natural reservoir, which collects water during the monsoon and releases them gradually WP (C) No. 7506/2007 nsk Page 14 of 96 through the river. The other risk factor highlighted is that Yamuna floodplain lies on the seismic zone or the earthquake vulnerable zone. It is submitted that the dangers involved with developing a river bed and flood plains were brought home to the people in Mumbai and those in the country on 26th July, 2005 in a rather tragic manner where incessant rains in the city marooned larger parts of Mumbai city with consequent loss of life and property. It is widely believed that one of the main reasons for the devastation wrought by the deluge in Mumbai was the channelisation of river Methi in Mumbai. The Counsel referred the Report by Concerned Citizens‟ Conclusion (CCC) - An inquiry into the Mumbai Floods, 2005 wherein it was concluded that vast reclamation of land over the years for purposes such as BKC, the Bandra-Worli Sea Link, the unabated construction of unauthorized settlements along the banks and the "channelisation" of the river are three main interventions that have interfered to varying degrees with the Mithi‟s free flow causing the destruction witnesses on July 26. The Petitioner also referred various studies wherby highlighting the importance of flood plains, valuation of ecological functions and benefits, risks due to floods, and seismic hazard assessment for Delhi region. Hence, there is an apprehension, which according to the petitioners is based on logic and substance, that any construction on the floodplain will expose it to natural disaster and will only aggravate the bad shape of the river.
WP (C) No. 7506/2007 nsk Page 15 of 96
20. The petitioners argue that in a similar manner, illegal construction is being carried out by Respondent DMRC in the riverbed between ITO project road to Nizamuddin project road. The construction of a massive metro yard hardly at a distane of 200-250 meters from the present edge of the riverbed, residential complex in about 1.85 acres riverbed and a huge Games Village Metro Station, along with a mall is being built and planned by M/s. Parvanath Developers requiring permanent structures which are in violation of the this Court‟s orders dated 3.3.2003 and 3.5.2005 as well as of the recommendation of the NEERI which was commissioned by the DDA itself.
21. It is argued that the orders passed by this Court on 3.3.2003, 3.5.2005, 26.10.2005, 16.11.2005 and 8.12.2005 are clear that the river bed is to be restored to its original position with a clear intention that "Yamuna has to be redeveloped in such a manner that it becomes a habitat for trees, forests and centre of recreation." Vide order dated 8.12.2005, it was also made clear by this Hon‟ble Court, "we are making it clear that no structure whether it pertains to religious, residential, commercial or any other purpose shall be allowed to exist". These orders cannot be read as allowing huts to be removed and permitting concrete structures which permanently damage the river bed of the flood plain, to come up. The argument that the structures are permitted/sanctioned cannot be a ground to justify violation of directions of this Court, notwithstanding the fact that the so called permissions are in violation of the law, the WP (C) No. 7506/2007 nsk Page 16 of 96 Constitution and suffers from vice of malafides and arbitrariness. The relevant portion of the said order dated 8.12.2005 reads as under :-
"It is the hope and expectation of the citizens of Delhi to see that river Yamuna is restored to its lost ambiance and pristine glory which it once upon a time used to enjoy. River Yamuna is the lifeline for the citizens of Delhi. Right from its entry into Delhi till it leaves Delhi, the purity, sanctity and the cleanliness of its water has to be maintained. It is repeatedly claimed that the Government is doing its best and has already spent thousands of crores of rupees in the name of „Cleanse Yamuna‟ Project. But the common man does not find any visible change. Encroachments on river beds and embankment have become order of the day. No effective steps have been taken to make Yamuna free from encroachments and pollution of all kinds. It is because of this realization that we have entrusted the task to the Committee headed by Justice Usha Mehra (Retired). We direct the Committee to take up in right earnestness and on day-to-day basis the task of removing encroachments upto 300 meters from both sides of River Yamuna in the first instance. No encroachment either in the form of jhuggi jhopri clusters or in any other manner by any person or organization shall be permitted. Yamuna has to be re-developed in such a manner that it becomes the habitat for trees, forests and center for recreation. We are making it clear that no structure whether it pertains to religions, residential or commercial or any other purpose shall be allowed to exist. We are also making it clear that no sullage, no seers, no industry, no factory shall be permitted on both sides of the embankment of Yamuna so as to prevent pollution of the river and if any such structure is found steps will be taken by the Committee to get the same removed."
22. The petitioners point out that presently rivers as a key ecosystem and a wetland of great importance has no legal protection in the country. The 10th Five Year Plan document in Chapter 9 dealing with Forests and Environment had mandated that: "A legislation for a River Regulation Zone on the lines of Coastal Regulation Zone would be attempted." Realizing this fact a committee to formulate draft document for River Regulation Zone (on the lines of Coastal regulation Zone under the Environment Protection Act, 1986) was constituted by the MoEF in 2002. The first and second meeting of WP (C) No. 7506/2007 nsk Page 17 of 96 the said committee was held on 8.1.2002 and 26.9.2002 at which a draft proposal on River Regulation Zone (RRZ) was presented and discussed. According to the Draft Document on River Regulation Zone - "The conservation of river requires that they are treated as ecosystem and their ecological integrity (physical, hydrological, chemical and biological characteristics and natural functions) is maintained." Rivers are not merely channels that transport water; they are dynamic ecosystems that change over time in response to hydrological and biological processes and human interventions. Therefore all those human/ anthropogenic activities that directly or indirectly damage the river and flood plain habitat or degrade the water quality also need to be prohibited or regulated by the Water (Prevention and Control of Pollution) Act, other activities include :-
a. Flow regulation (divergence and extraction of water).
b. Channelisation of rivers and streams by constructing embankments.
c. Reclamation and encroachment of floodplains by landfills.
d. Disposal of different kinds of solid wastes including religious offerings, and e. Intensive agriculture on the flood lain and river bed
23. Despite the initiative as above at the Ministry of Environment and Forests the said River Regulation Zone notification on the lines of Coastal Regulation Zone under the Environment (Protection) Act, 1986 is yet to be notified.
24. SUBMISSION OF THE RESPONDENTS Mr. Vahanvati, learned Solicitor General of India submitted that the area where the Commonwealth Games village is located is in WP (C) No. 7506/2007 nsk Page 18 of 96 Pocket III and beyond the embankment. The site is surrounded by NH-24 on the southern side, embankment on the western side, railway line on the northern side and Marginal bund on the eastern side. He submits that post 2002, after the construction of bund the site, where the construction is being done cannot be considered to be a floodplain. The Solicitor General argued that the petitioners themselves stated via the Experts‟ Study annexed as Annexure P-1 that "Flood Plain are the areas between manmade embankments and level of the river channel (Fig. 1)". Therefore, the site which is beyond manmade bund cannot be said to be a Flood Plain. In this respect the Solicitor General also read over the relevant portion with respect to the NEERI Report of 1999 and 2005 wherein it is clearly recommended that the area beyond bund is to be reclaimed for development and construction, inter alia, stating as under :-
NEERI Report of 2005 pg 27 point number (v) "Proposed land use break-up It is assumed that two bundhs each of a suitable height will be constructed on either side of the water channel in a span between 550 m to 600 m depending upon the model studies. On this basis, an area of 2400 ha would be under the water channel including the two bundhs, which will act as major circulation roads, and the balance of 7300 ha will be reclaimed."
NEERI Report of 1999 page 4.12 "As seen from the figure, the 30m ROW in Pocket III is retained as a road-cum-bund, constructed for a flood design of once in fifty years as per regulations, providing flood protection in order to developments in the land beyond this road in Pocket III. The landmass towards the left bank could be developed using suitable flood protection measures keeping in mind the once in 100 year flood scenario."
25. It is submitted by the learned Solicitor General that NEERI Report of 1999 as well as 2005 is silent about the Akshardham Construction, WP (C) No. 7506/2007 nsk Page 19 of 96 bund created in 2002 and the area earmarked in 2003 for games. Therefore, the general guidelines provided by NEERI 2005 are subject to what is specifically approved. It is stated in the General Guidelines for Development of Riverbed, NEERI Report of 2005 that no residential or industrial facilities requiring permanent structure should be provided on the riverbed. He further submits that the NEERI Report of 2008 clearly takes note of the fact that the final report submitted by it in October 2005 did not assess the embankment (Akshardham Bund) which had come into existence as it was not part of the original study carried out by NEERI in the year 1999. And taking note of the embankment clearly observed that the said area does not form part of the flood plain, and same is reproduced herein :-
"Given the definition of the project area, as considered by MoEF in its clearance letter dt 29 March, 2007, the boundaries of Yamuna River, which were considered in the earlier NEERI report, were demarcated by East and West bank bunds, whereas now the river, post-2002, has new boundaries in the project region, i.e. 45 m wide and about 1 km long (stretching between New Railway bridge and Nizamuddin road bridge) newly constructed bund in East and original bund in West. The reclaimed area, Pocket III, is deemed to be no more a part of the flood plain zone by the Akshardham Bund and MoEF has in principle approved the bund."
26. Further, the site is no more part of the flood plain since the site has been reclaimed as per the approval of the Yamuna Committee of Central Water Commission. In the instant case, the construction is being done on the CWG Village site near the Akshardham Temple which area is protected by the construction of bund. Hence, no water can flood into the said area and, therefore, the CWG Village WP (C) No. 7506/2007 nsk Page 20 of 96 site is not in the flood plain of the river Yamuna. The present site is more than 1.3 Kilometers from the river bed. In this respect the reliance was further placed upon the order dated 12.1.2005 of the Apex Court in UP Employees Federation case i.e., WP No. 353/2004 wherein the Apex Court approved the construction of a permanent structure, namely, the Akshardham temple in the Pocket III area, which is abutting the present site of construction. The Hon'ble Supreme Court recorded the fact that Akshardham construction was 1.7 Kms. away from the riverbank.
27. The next submission of the Respondents is that the on-going projects of DDA on the site in question have got the necessary clearances from the concerned authorities, including environmental clearances. The project was started by DDA after carrying out detailed and necessary studies through competent bodies. The permission and necessary clearances were given to DDA after adopting the suggestions/opinions given by research bodies. The MoEF vide its letter dated 29.3.2007, while granting permission to DDA to continue with the construction work, entailed specific conditions with respect to the development/construction phase of the Environment Clearance dated 14.12.2006 and the same are being taken care of.
28. According to the respondents, there is no question of violation of NEERI recommendations as the respondents are making the constructions with due care and following the remedial measures. WP (C) No. 7506/2007 nsk Page 21 of 96 The construction activity would not impact any eco-system as all remedial measures are in place. Based on the recommendations of NEERI, change of land admeasuring 42.5 hectares in Pocket III was notified by Gazette Notification dated 21.9.1999. It is submitted that in its Report of 2005, NEERI has suggested the proposed use in accord with eco-friendly development. It is submitted that DDA has not changed any water body in the Zone „O‟ and Part „P‟ to other uses. It is submitted that the groundwater recharge pond area, as suggested by NEERI, has not been disturbed and retained. It is submitted that rain water from the pocket shall be transferred to ground aquifers by means of recharge wells. Thus, there shall be no adverse impact on the ground water recharge system of the area. It is clear that despite the desirability and necessity of the permanent structures for the Commonwealth Games Village, the MoEF did not allow construction of the permanent structures to begin till such time the mitigation measures against upstream flooding were duly identified and a condition to implement the said mitigation measures were imposed on the project proponent.
29. The Counter Affidavit by Respondent No. 3 states that hosting of the Commonwealth Games (CWG) in Delhi, which is not possible without the construction of the Commonwealth Games village required to house over 8000 visiting athletes and delegations from various athletes and delegations from various Commonwealth countries and also to provide for training facilities, recreation, dining space, transport centers etc. The Games Village, as the upcoming WP (C) No. 7506/2007 nsk Page 22 of 96 township is called, is a cornerstone of the Delhi Government's plan to transform the capital into a "Global City". 71 countries are making extensive preparations based on the above commitment for participation in the CWG, 2010. Should the hosting of the games be delayed or not take place, it would result in loss of national prestige. It is in national interest that the project is to be completed in time because a delay in the completion of the project would be fatal and would deprive the country of the various benefits which will accrue to India on account of the holding of the Games, which are being organized by the Technically qualified officials and sports administrators with rich experience. It is submitted that if the Games for any reason whatsoever are either delayed or do not take place, it would not only be a loss of prestige of the country but would result in a colossal waste of national resources and the considerable time spent by various authorities in considering in detail the various aspects of the project.
30. The learned Solicitor General further submitted that the orders dated 3.3.2003, 3.5.2005, 26.10.2005, 16.11.2005 and 8.12.2005 of this Court are with respect to the encroachments and the same has nothing to do with the Planned Development. It was further submitted that all facts were not placed before the Court, especially with respect to the 2010 Commonwealth Games. It is submitted that the order dated 8.12.2005 of this Court is to be read in the context and the subject matter with respect to removal of illegal construction/encroachments. It cannot be said that even the WP (C) No. 7506/2007 nsk Page 23 of 96 authorized construction is not permissible. So far as the order dated 3.5.2003 is concerned, this Court directed that the Yamuna bed and both sides of the river are to be clear from encroachments. Further, vide order dated 3.5.2005, the High Court directed that the authorities concerned, DDA, MCD etc. to forthwith remove "all unauthorized structures, jhuggi, places of worship another structures in the riverbed and its embankment within two months of the said date." A perusal of the aforesaid two orders will clearly show that the intention of the High Court was loud and clear that the riverbed should be made free from encroachments and unauthorized structures. This Court never intended to stop the development project of general public importance with regard to construction of mass rapid transport system.
31. The permanent structures such as those envisaged in the CWG Village Project, which faces the river Yamuna in Delhi, are still the norm of the day in sporting events. In the Olympic games to be hosted in London 2012, the Organizing Committee (LOCOG) has chosen Lower Lea Valley (i.e. valley of River Lea, which is within the wider Thames Gateway regeneration area) as the site for the Olympic Park containing huge stadia, Olympic village, hockey centre, basketball arena, etc besides the site for 9000 homes, along with office, commercial and retail space and community facilities.
32. We have given our thoughtful consideration to the respective submissions. As pointed out in the beginning, the issues touched the development of the city and it is to be examined whether the same is WP (C) No. 7506/2007 nsk Page 24 of 96 at the cost of environmental degradation. For giving answer to the arguments involving this dilemma, we need to take into consideration the law which has developed on the subject.
33. SETTLED PRINCIPLES OF ENVIRONMENTAL JURISPRUDENCE In the beginning of civilization man was simply a part of natural system he inhabited, utilizing a small share of its energy and material requirements. As his numbers increased and his culture and technology changed, he found it difficult to cope up within the framework of existing natural system. So, he simplified the natural system into an artificial, young and highly productive system. Improved technology and new discoveries incited him to extract more and mare from natural system. Any kind of advances/ development no doubt plays a vital role in improving the standards of the society but the same entails associated costs, many of which are environmental costs. As Zygmunt J.B. Plater (Zygmunt J.B. Plater, et al., Environmental Law and Policy: Nature, law and Society, (1992) West Publishing Co, p.2):
Tradeoff between short-term material welfare and long-term ecolgical integrity do occur, although environmentalists often argue against false tradeoff decisions where rational alternatives are available. "You have to choose: either economic development, or environmental quality, you can't have both."- that cliché is the classic false tradeoff.
34. Each case of environmental issue involves a highly individualized set of scientific facts, economic and political issues, and social and natural consequences. There is, however, a special environmental perspective WP (C) No. 7506/2007 nsk Page 25 of 96 that provides a common ground for all environmental cases. The positions taken by environmentalists are typically based upon a broadened accounting of the considerations involved in decision- making. Almost every environmental case starts in response to someone‟s decision to do something: new products or technologies; construction projects; the start, continuation or cessation of various programs that affect the physical world. The people who make these decisions are usually not environmentalists. Indeed, the environmental position often surfaces relatively late in the game, long after the planning stage and well into the implementation stage, when citizens finally see bulldozers rolling. A common complaint of the environmental camp is that these ongoing decisions are predicated on irrationally and unrealistically narrow grounds. The proposed actions, it is argued, unwisely ignore facts, costs, and impacts on social and natural values that have real importance to the well-being of the community. By virtue of their broad view of problems and sometimes skeptical view of benefits, environmentalists often end up sounding negative (ZygmuntJ.B. Plater, et al., Environmental Law and Policy: Nature, law and Society, (1992) West Publishing Co, p.3). The environmental perspective does not reflexively condemn economic activity; it insists only that decisions to pursue environmentally detrimental activities be made in a way that gives an adequate accounting of the full range of impacts. As President Barber Conable of the World Bank summarized it, "Good WP (C) No. 7506/2007 nsk Page 26 of 96 ecology is good economics" (Conable, Address to the World Resources Institute, May 5, 1987).
35. It is clear that development and environmental issue are inter-related to each other. In this context, the Chairman of World Commission on Environment and Development (1987) forwarded that „environment‟ is where we all live; and „development‟ is what we all do in attempting to improve our lot within that abode. The two are inseparable. It was further observed in the Report that there is need to re-examine the critical environment and development issues and to formulate realistic proposals dealing with them. Keeping this paradigm in mind, the term „sustainable development‟ came in frequent use whereby development was supposed to be economically viable, socially just and ecologically sound. Thus, focusing on aspect of harmony between economics and ecology and providing a framework for the integration of environmental policies and development strategies.
36. This concept of sustainable development, i.e., balancing ecology and development was established in UN Conference on the Human Environment, Stockholm (1972) whereby it was noted that „a point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences.' The following principles laid down therein are relevant for our purpose :-
Principle 6 The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to WP (C) No. 7506/2007 nsk Page 27 of 96 exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems. The just struggle of the peoples of ill countries against pollution should be supported.
Principle 11 The environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries, nor should they hamper the attainment of better living conditions for all, and appropriate steps should be taken by States and international organizations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures.
Principle 13 In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population.
Principle 14 Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment.
Principle 21 States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
Principle 22 States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.
37. Almost ten years after the Stockholm Declaration, the United Nations took another step towards the recognition and promotion of environmental procedural rights in the World Charter for Nature, 1982. The Charter emphasized the universal responsibility of all WP (C) No. 7506/2007 nsk Page 28 of 96 peoples to safeguard resources for future generations and to protect and restore the natural world. The relevant Articles are noted herein:
4. Ecosystems and organisms, as well as the land, marine and atmospheric resources that are utilized by man, shall be managed to achieve and maintain optimum sustainable productivity, but not in such a way as to endanger the integrity of those other ecosystems or species with which they coexist.
8. In formulating long-term plans for economic development, population growth and the improvement of standards of living, due account shall be taken of the long-term capacity of natural systems to ensure the subsistence and settlement of the populations concerned, recognizing that this capacity may be enhanced through science and technology.
9. The allocation of areas of the earth to various uses shall be planned and due account shall be taken of the physical constraints, the biological productivity and diversity and the natural beauty of the areas concerned.
11. Activities which might have an impact on nature shall be controlled, and the best available technologies that minimize significant risks to nature or other adverse effects shall be used; in particular:
(a) Activities which are likely to cause irreversible damage to nature shall be avoided;
(b) Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed;
(c) Activities which may disturb nature shall be preceded by assessment of their consequences, and environmental impact studies of development projects shall be conducted sufficiently in advance, and if they are to be undertaken, such activities shall be planned and carried out so as to minimize potential adverse effects;
(d) Agriculture, grazing, forestry and fisheries practices shall be adapted to the natural characteristics and constraints of given areas;
(e) Areas degraded by human activities shall be rehabilitated for purposes in accord with their natural potential and compatible with the well-being of affected populations.WP (C) No. 7506/2007 nsk Page 29 of 96
38. The 1992 Rio Declaration on Environment and Development defines the rights of the people to be involved in the development of their economies, and the responsibilities of human beings to safeguard the common environment. The declaration builds upon the basic ideas concerning the attitudes of individuals and nations towards the environment and development, first identified at the United Nations Conference on the Human Environment (1972). The Rio Declaration states that long term economic progress is only ensured if it is linked with the protection of the environment. If this is to be achieved, then nations must establish a new global partnership involving governments, their people and the key sectors of society. Together human society must assemble international agreements that protect the global environment with responsible development. There are a number of principles to the Rio Declaration and the prominent among them read as under:
Principle 3 The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.
Principle 4 In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.
Principle 6 The special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries.
Principle 8 To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable WP (C) No. 7506/2007 nsk Page 30 of 96 patterns of production and consumption and promote appropriate demographic policies.
Principle 15 In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
Principle 17 Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.
39. One can also name it „eco-development‟ whereby development is aimed for along with the adoption of mitigating measures so as to avoid devastation of natural resources/environment. In other words, maintaining balance and harmony between ecology and development. The Constitution of India also entails the principles of environmental protection through Articles 48A and 51A(g) introduced by way of an amendment to the Constitution in 1976. Article 48A, part of the Directive Principles of State Policy, obligated the State to protect and improve the environment. On the other hand, Article 51A(g) obligated citizens to undertake the same responsibilities.
40. The Apex Court in various cases recognized some internationally accepted and important principles in matters pertaining to the environment, thus, resulting into development of environment jurisprudence in India whereby recognizing concept of sustainable development, doctrine of public trust, precautionary principle etc., combined with a liberal view towards ensuring social justice and the WP (C) No. 7506/2007 nsk Page 31 of 96 protection of human rights. There have also been occasions when the judiciary has prioritized the environment over development, and vice-versa. In Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496, the court said: „It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature‟s bounty. They need to be protected for a proper and healthy environment which enables people to enjoy a quality of life which is the essence of the guaranteed right under article 21 of the Constitution of India.‟ Recently in Karnataka Industrial Development Board v. C. Kenchappa, (2006) 6 SCC 371 land acquisition was challenged on the ground that it would have an adverse effect on the environment. The court undertook a „judicial pilgrimage' through all the major developments in environmental law over the last few decades while determining the import of the concept of „sustainable development', stating :-
"12. Environment and Constitutional Provisions Professor Michael von Hauff of the Institute for Economics and Economic Policy, University of Kaiserlantern, Germany, in his article "The Contribution of Environmental Management Systems to Sustainable Development: Relevance of the Environmental Management and Audit Scheme" aptly observed that, "it is remarkable that India was the first country in the world to enshrine environmental protection as a state goal in its Constitution".
In the impugned judgment serious concern regarding degradation of ecology and environment has been seriously articulated.
13. According to the impugned judgment, preservation and protection of environment are part of Article 21 of the Constitution. Article 21 reads as under:
21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law.WP (C) No. 7506/2007 nsk Page 32 of 96
In the impugned judgment, the High Court also gave reference to the Directive Principles of the State Policy. In Articles 48A and 51A(g) of the Constitution, a strong foundation has been laid down pertaining to environment, preservation of forests, wild life, rivers and lakes.
14. The Constitutional philosophy enshrined in these Constitutional Provisions must be implemented. Articles 48A reads as under:
48A. Protection and improvement of environment and safeguarding of forests and wild life. - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
The framers of the Constitution expressed concern and importance of protection and improvement of forests, lakes, rivers and wild life for preserving the environment. According to the spirit of the Constitution, it is the bounden duty of all to protect our natural environment. Reference to Article 51A(g) is also very important.
Article 51A(g) reads as under:
51A(g)...to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures
15. Environment degradation and its consequences; Experience of the recent past has brought to us the realization of the deadly effects of development on ecosystem. The entire world is facing a serious problem of environmental degradation due to indiscriminate development. Industrialization, burning of fossil fuels and massive deforestation are leading to degradation of environment. Today the atmospheric level of carbon dioxide, the principal source of global warming, is 26% higher than pre-industrial concentration.
The earth's surface reached its record level of warming in 1990. In fact, six of the seven warmest years on record have occurred since 1980, according to the World Watch Institute's 1992 report. The rise in global temperature has also been confirmed by the Inter-Governmental Panel on Climate Change set up by the United Nations in its final report published in August 1990. The Global warming has led to unprecedented rise in the sea level. Apart from melting of the polar ice it has led to Inundation of low-lying coastal regions. Global warming is expected to profoundly affect species and ecosystem. Melting of polar ice and glaciers, thermal expansion of seas would cause worldwide flooding and unprecedented rise in the sea WP (C) No. 7506/2007 nsk Page 33 of 96 level if gas emissions continue at the present rate. Enormous amount of gases and chemicals emitted by the industrial plants and automobiles have led to depletion of ozone layers which serve as a shield to protect life on the earth from the ultra- violet rays of the sun.
16. The dumping of hazardous and toxic wastes, both solid and liquid, released by the industrial plants is also the result of environment degradation in our country. The problem of "acid rain" which is caused mainly by the emissions of sulphur dioxide and nitrogen oxides from power stations and industrial installations is a graphic example of it. The ill-effects of acid rain can be found on vegetation, soil, marine resources, monuments as well as on humans. Air pollutants and acids generated by the industrial activities are now entering forests at an unprecedented scale.
19. In Essar Oil Ltd. v. Halar Utkarsh Samiti and Ors., (2004) 2 SCC 392, this Court aptly observed Stockholm Declaration as "Magna Carta of our environment". First time at the international level importance of environment has been articulated.
(i) In the Stockholm Declaration principle number two provides that the natural resources of the earth including air, water, land, flora and fauna should be protected. The fourth principle of Stockholm Declaration reminds us about our responsibility to safeguard and wisely manage the heritage of wildlife and its habitat.
(ii) The Court in the said judgment also observed that "this, therefore, is the aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in the population together with consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, the filling up of lakes and pollution of water resources and the very air which we breathe. However, there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other."
(iii) In the said judgment, the passage has been quoted from Indian Council for Enviro Legal Action v. Union of India (1996) 5 SCC 281. We deem it appropriate to reproduce the same. Para 31 at page 296 in the said judgment reads as under :-
"While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time the necessity to preserve ecology and environment should not hamper economic and other developments. Both development WP (C) No. 7506/2007 nsk Page 34 of 96 and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking, due care and ensuring the protection of environment."
25. Some understanding of what 'the environment' may encompass can be discerned from other treaty provisions. Those agreements which define 'environmental effects', 'environmental impacts' or 'environmental damage' typically include harm to flora, fauna, soil, water, air landscape, cultural heritage, and any interaction between these factors.
26. The World Summit on Sustainable Development' was held in Johannesburg in 2002. The purpose of the same was to evaluate the obstacles to progress and the results achieved since the 1992 World Summit at Rio de Janeiro. The same was expected to present "an opportunity to build on the knowledge gained over the past decade, and provides a new impetus for commitments of resources and specific action towards global sustainability."
The priority of developing nations is urgent industrialization and development. We have reached at a point where it is necessary to strike a golden balance between the development and ecology. The development should be such as it can be sustained by ecology. All this has given rise to the concept of sustainable development.
27. The World Conservation Union' and 'the World Wide Fund for Nature' prepared jointly by UNEP described that "sustainable development, therefore, depends upon accepting a duty to seek harmony with other people and with nature" according to 'Caring for the Earth', A strategy for Sustainable Living. The guiding rules are:
i) People must share with each other and care for the earth;
ii) Humanity must take no more from nature than man can replenish; and,
iii) People must adopt life styles and development paths that respect and work within nature's limits.
The International community expressed its commitment to treat environment and development in an integrated manner and to cooperate "in the further development of international law in the field of sustainable development. This was part of the Rio Declaration on Environment and Development. [Principle 27; Report of the UN Conference on Environment and Development]
28. P. Sands in his celebrated book "International Law in the field of Sustainable Development" mentioned that the sustainable development requires the States to ensure that they develop and use their natural resources in a manner which is WP (C) No. 7506/2007 nsk Page 35 of 96 sustainable. According to him, sustainable development has four objectives :-
First, it refers to a commitment to preserve natural resources for the benefit of present and future generations.
Second, sustainable development refers to appropriate standards for the exploitation of natural resources based upon harvests or use (examples include use which is "sustainable," "prudent," or "rational," or "wise" or "appropriate").
Third, yet other agreements require an "equitable" use of natural resources, suggesting that the use by any State must take account of the needs of other States and people.
And a fourth category of agreements require that, environmental considerations be integrated into economic and other development plans, programmes, and projects, and that the development needs are taken into account in applying environmental objectives.
29. Sustainable Development: Contribution of Judiciary and Others This Court, in Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647, acknowledged that the traditional concept that development and ecology are opposed to each other, is no longer acceptable. Sustainable development is the answer. Some of the salient principles of "Sustainable Development" as culled out from Brundtlland Report and other international documents, are Inter-Generational Equity. This Court observed that "the Precautionary Principle" and "the Polluter Pays Principle" are essential features of "Sustainable Development."
30. Nation's progress largely depends on development, therefore, the development cannot be stopped, but we need to control it rationally. No government can cope with the problem of environmental repair by itself alone; peoples' voluntary participation in environmental management is a must for sustainable development. There is a need to create environmental awareness which may be propagated through formal and informal education. We must scientifically assess the ecological impact of various developmental schemes. To meet the challenge of current environmental issues, the entire globe should be considered the proper arena for environmental adjustment. Unity of mankind is not just a dream of the enlightenment but a biophysical fact.
31. In Subhas Kumar v. State of Bihar (1991) 1 SCC 598, this Court has given directions that, under Article 21 of the Constitution, pollution free water and air are the fundamental rights of the people.WP (C) No. 7506/2007 nsk Page 36 of 96
32. In the case of A.P. Pollution Control Board II v. M.V. Nayudu (2001) 2 SCC 62, this Court observed that the right to have access to drinking water is fundamental to life and it is the duty of the State under Article 21 to provide clean drinking water to its citizens.
The United Nations Water Conference in 1977 observed as under :-
All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs.
33. Similarly, this Court in Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 observed as under:
Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India....
The need of the hour is inculcating the sense of urgency in implementing the rules relating to environmental protection which are not strictly followed. Its result would be disastrous for the health and welfare of the people.
The concept of sustainable development whose importance was the resolution of environmental problems is profound and undisputed.
31. Professor Ben Boer, Environmental Law, Faculty of Law, University of Sydney, New South Wales, Australia, in his article "Implementing Sustainability" observed as under:
Strategies for sustainable development have been formulated in many countries in the past several years. Their implementation through legal and administrative mechanisms is underway on a national and regional basis. The impetus for these strategies has come from documents such as the Stockholm Declaration of 1972, the World Conservation Strategy, the World Charter for Nature of 1982 and the report of the World Commission on Environment and Development, our Common Future. The initiatives are part of a world wide movement for the introduction of National Conservation Strategies based on the World Conservation Strategy. Over 50 National Conservation Strategies have been introduced over the past decade, all of which incorporate concepts of sustainable development. The document Caring for the Earth is the chief successor to the World Conservation Strategy.
In the same article, Professor Boer further observed in the said article as follows:
'Sustainability' is defined in 'Caring for the Earth' as "a characteristic or state that can be maintained indefinitely", WP (C) No. 7506/2007 nsk Page 37 of 96 whilst "development" is defined as "increasing the capacity to meet human needs and improve the quality of human life. What this seems to mean is "to increase the efficiency of resource use in order to improve human living standards".
In 'Caring for the Earth', the term "sustainable development" is derived from a rough combination of these two definitions:
Improving the quality of human life while living within the carrying capacity of supporting ecosystems."
41. To justify and perhaps extract state initiative to conserve natural resources, the Court enunciated Professor Joseph Sax‟s Doctrine of Public Trust, obligating conservation by the state. In M.C. Mehta v. Kamal Nath (1997) 1 SCC 388, the court took notice of an article in a leading daily alleging ecological damage in Kullu Valley due to illegal construction of a motel. In 1995, Span Motels built a resort on the bank of Beas river. Kamal Nath, former Minister of Environment and Forests had links with the hotelier, who had encroached a swath of forest land. The encroachment was validated in 1993-94 during Nath‟s tenure as Minister. During the 1995 monsoons, the river engulfed part of the land and threatened the resort. Span Motels carried out work to deflect the flow of the river, which was causing environmental damage. An article to this effect was published in one of the leading dailies of which the court took notice. The court held that the motel interfered with the natural flow of the river by trying to block the natural relief/spill of the river and thus directed cancellation of the lease deed in favour of the motel. The motel was also asked to pay compensation by way of restitution of the environment and ecology of the areas. Besides, several other directions were issued to the motel and the government. The court held the doctrine of public trust to be a part of the law of the land WP (C) No. 7506/2007 nsk Page 38 of 96 and the state, as a trustee of all natural resources, was under a legal duty to protect them, and that the resources were meant for public use and could not be transferred to private ownership, stating :-
17. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature. They should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit then- use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority.
Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses.
22. Professor Sax state the scope of the public trust doctrine in the following words:
If any of the analysis in this Article makes sense, it is clear that the judicial techniques developed in public trust cases need not be limited either to these few conventional interests or to questions of disposition of public properties. Public trust problems are found whenever governmental regulation comes into question, and they occur in a wide range of situations in which diffuse public interests need protection against tightly organized groups with clear and immediate goals. Thus, it seems that the delicate mixture or procedural and substantive protections which the courts have applied in conventional public trust cases would be equally applicable and equally appropriate in controversies involving air pollution, the dissemination of pesticides-, the location of rights of way for utilities, and strip mining or wetland filling on private lands in a state where governmental permits are required.
23. We may at this stage refer to the judgment of the Supreme Court of California in National Audubon Society v. Superior Court of Alpine County 33 CAL. 3d 419, the case is popularly known as "the Mono lake case, Mono lake is the second largest lake in California, the lake is saline. It contains no fish but Support a large population of brine shrimp which feed vast numbers of nesting and migrating birds. Islands in the lake protect a large breeding colony of California gails, and the lake WP (C) No. 7506/2007 nsk Page 39 of 96 itself serves as a haven on the migration route for thousands of birds. Towers and spires of tura on the north and south shores are matters of geological interest and a tourist attraction. In 1940, the Division of Water Resources granted the Department of Water and Power of the city of Los Angeles a permit to appropriate virtually the entire flow of 4 of the 5 streams flowing into the lake. As a result of these diversions, the level of the lake dropped, the surface area diminished, the gulls were abandoning the lake and the scenic beauty and the ecological values of the Mono Lake were imperiled. The plaintiffs environmentalist - using the public trust doctrine - filed a law suit against Los Angeles Water Diversions. The case eventually came to the California Supreme Court, on a Federal Trial Judge's request for clarification on the States public trust doctrine. The Court explained the concept of public trust doctrine in the following words:
By the law of nature these things are common to mankind - the air, running water, the sea and consequently the shores of the sea." (Institutes of Justinian 2.1.1.) From this origin in Roman law, the English common law evolved the concept of the public trust, under which the sovereign own "all of its navigable waterways and the lands lying beneath them 'as trustee of a public trust for the benefit of the people.
24. The Court explained the purpose of the public trust as under:
The objective of the public trust has evolved in tandem with the changbg public perception of the values and uses of waterways. As we observed in Marks v. Whitney, supra, 6 Cal. 3d 251, "(public trust easements [were] traditionally defined in terms of navigations commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the State, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. We went on, however, to hold that the traditional triad of uses-navigation, commerce and fishing-did not limit the public interest in the trust res. In language of special importance to the present setting, we stated that "[T]he public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another. There is a growing public recognition that one of the most important public uses of the tidelands-a use encompassed within the tidelands trust-is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area."
Mono Lake is a navigable waterway. It supports a small local industry which harvest brine shrimp for sale as fish food, which WP (C) No. 7506/2007 nsk Page 40 of 96 endeavor probably qualities the lake as a "fishery" under the traditional public trust cases. The principal values plaintiffs seek to protect, however, are recreational and ecological - the scenic views of the lake and its shore, the purity of the air and the use of the lake for nesting and feeding by birds. Under Marks v. Whitney, supra, 6 Cal. 3d 251, it is clear that protection of these values is among the purposes of the public trust.
The court summed up the powers of the state as trustee in the following words:
Thus, the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust...
The Supreme Court of California, inter alia, reached the following conclusion:
The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. Just as the history of this state shows that appropriation may be necessary for efficient use of water despite unavoidable harm to public trust values, it demonstrates that an appropriate water rights system administered without consideration of the public trust may cause unnecessary and unjustified harm to trust interests, (See Johnson, 14 U.C. Davis L. Rev. 233. 258-257; Robie, some Reflections on Environmental Considerations in Water Rights Administration, 2 Ecology L.Q. 695, 710-711 (19/2); Comment, 33 Hastings L.J. 653, 654.) As a matter of practical necessity the state may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust (see United Plainsmen v. N.D. State Water Cons. Comm'n 247 N.W 2d 457,462-463 (N.D. 1976), and to preserve, so far as consistent with the public interest, the uses protected by the trust.
25. The Court finally came to the conclusion that the plaintiffs could rely on the public trust doctrine in seeking reconsideration of the allocation of the waters of the Mono basin.
It is no doubt correct that the public trust doctrine under the English Common Law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have expanded the concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake case clearly show the judicial concern WP (C) No. 7506/2007 nsk Page 41 of 96 in protecting all ecologically important lands, for example fresh water, wetlands or riparian forests. The observations of the Court in Mono Lake case to the effect that the protection of ecological values is among the purposes of public trust, may give rise to an argument that the ecology and the environment protection is a relevant factor to determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust to encompass new types of lands and waters. In Phillips Petroleum co. v. Mississippi 108 S.C.C. 791 [1988], the United States Supreme Court upheld Mississippi's extension of public trust doctrine to lands underlying no navigable tidal areas. The majority judgment adopted ecological concepts to determine which land can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the public trust doctrine to identify the tide lands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to include all eco-systems operating in our natural resources.
27. Our legal system-based on English Common Law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
28. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasing complex society, find it necessary to encroach to some extent open lands heretofore considered in-violate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislature the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. The esthetic use and the pres time glory of the natural resources, the environment and the eco-systems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary in good faith, for the public good and in public interest to encroach upon the said resources."WP (C) No. 7506/2007 nsk Page 42 of 96
42. In Intellectuals Forum, Tirupathi v. State of A.P. (2006) 3 SCC 549 the Apex Court discussed the Doctrine of Public Trust. The Court approved of artificial methods of water recharging and protection of ground water. It was laid down that the disposal of assets which are subject matter of public trust can be disposed of in a manner consistent with the nature of the trust, inter alia, stating as under:
"59. Another legal doctrine that is relevant to this matter is the Doctrine of Public Trust. This doctrine, though in existence from Roman times, was enunciated in its modern form by the US Supreme Court in Illinois Central Railroad Company v. People of the State of Illinois 146 US 537 (1892) where the Court held:
The bed or soil of navigable waters is held by the people of the State in their character as sovereign, in trust for public uses for which they are adapted.
[...] the state holds the title to the bed of navigable waters upon a public trust, and no alienation or disposition of such property by the State, which does not recognize and is not in execution of this trust is permissible.
What this doctrine says therefore is that natural resources, which includes lakes, are held by the State as a "trustee" of the public, and can be disposed of only in a manner that is consistent with the nature of such a trust. Though this doctrine existed in the Roman and English Law, it related to specific types of resources. The US Courts have expanded and given the doctrine its contemporary shape whereby it encompasses the entire spectrum of the environment.
60. The doctrine, in its present form, was incorporated as a part of Indian law by this Court in the case of M.C. Mehta v. Kamal Nath (supra) and also in M.I. Builders v. Radhey Shyam Sahu AIR 1999 SC 2468. In M.C. Mehta, Kuldip Singh J., writing for the majority held:
[our legal system] includes the public trust doctrine as part of its jurisprudence. The state is the trustee of all natural resources which are by nature meant for public use and enjoyment. [...] The state as a trustee is under the legal duty to protect the natural resources. [Para 22] The Supreme Court of California, in the case of National Audubon Society v. Superior Court of Alpine Country 33 Cal.419 also known as the Mono Lake case summed up the substance of the doctrine. The Court said:WP (C) No. 7506/2007 nsk Page 43 of 96
Thus the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands., surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust.
This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the state holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny upon any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the Courts must make a distinction between the government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources, [Joseph L. Sax "The public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol.68 No.3 (Jan.1970) PP 471- 566)]. According to Prof. Sax, whose article on this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to imposed by the public trust doctrine [ibid]:
1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;
2. the property may not be sold, even for fair cash equivalent
3. the property must be maintained for particular types of use.
(i) either traditional uses, or (ii) some uses particular to that form of resources.
In the instant case, it seems, that the Government Orders, as they stand now, are violative of principles 1 and 3, even if we overlook principle 2 on the basis of the fact that the Government is itself developing it rather than transferring it to a third party for value.
Therefore, our order should try to rectify these defects along with following the principle of sustainable development as discussed above.
61. Further the principle of "Inter-Generational Equity" has also been adopted while determining cases involving environmental issues. This Court in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu and Ors. AIR 1999 SC 812 held as under:WP (C) No. 7506/2007 nsk Page 44 of 96
The principle of inter-generational equity is of recent origin. The 1972 Stockholm Declaration refers to it in principles 1 and
2. In this context, the environment is viewed more as a resource basis for the survival of the present and future generations.
Principle 1 - Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for the present and future generations....
Principle 2 - The natural resources of the earth, including the air, water, lands, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of the present and future generations through careful planning or management, as appropriate.
65. The World has reached a level of growth in the 21st Century as never before envisaged. While the crisis of economic growth is still on, the key question which often arises and the Courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of protecting the environment and conserving the natural resources for the benefit of the humanity and future generations could be ignored in the garb of economic growth or compelling human necessity. The growth and development process are terms without any content, without an inkling as to the substance of their end results. This inevitably leaves us to the conception of growth and development which sustains from one generation to the next in order to secure `our common future'. In pursuit of development, focus has to be on sustainability of development and policies towards that end have to be earnestly formulated and sincerely observed. As Prof. Weiss puts it, "conservation, however, always takes a back seat in times of economic stress." It is now an accepted social principle that all human beings have a fundamental right to a healthy environment, commensurate with their well being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that present as well as the future generations are aware of them equally. The Parliament has considerably responded to the call of the Nations for conservation of environment and natural resources and enacted suitable laws.
66. The Judicial Wing of the country, more particularly, this Court has laid down a plethora of decisions asserting the need for environmental protection and conservation of natural resources. The environmental protection and conservation of natural resources has been given a status of a fundamental right and brought under Article 21 of the Constitution of India. This apart, the Directive Principles of State Policy as also the WP (C) No. 7506/2007 nsk Page 45 of 96 fundamental duties enshrined in Part IV and Part IVA of the Constitution of India respectively also stresses the need to protect and improve the natural environment including the forests, lakes, rivers and wild-life and to have compassion for living creatures.
67. This Court in Dahanu Taluka Environmental Protection Group and Ors. v. Bombay Suburban Electricity Supply Co. Ltd. and Ors. (1991) 2 SCC 549 held that the concerned Government should "consider the importance of public projects for the betterment of the conditions of living people on one hand and the necessity for preservation of social and ecological balance and avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and strike a balance between the two conflicting objectives."
68. However, some of the environmental activists, as noted in the "The Environmental Activities Hand Book' authored by Gayatri Singh, Kerban Ankleswaria and Colins Gonsalves, that the Judges are carried away by the money spent on projects and that mega projects, that harm the environment are not condemned. However, this criticism seems to be baseless since in Virender Gaur and Ors. v. State of Haryana and Ors. (1995) 2 SCC 577, this Court insisted on the demolition of structure which have been constructed on the lands reserved for common purposes and that this Court did not allow its decision to be frustrated by the actions of a party. This Court followed the said decision in several cases issuing directions and ensuring its enforcement by nothing short of demolition or restoration of status quo ante. The fact that crores of rupees was spent already on development projects did not convince this Court while being in a zeal to jealously safeguarding the environment and in preventing the abuse of the environment by a group of humans or the authorities under the State for that matter."
43. The Apex Court in A.P. Pollution Control Board v. Prof. M.V.
Nayadu (Retd.) & Others (1999) 2 SCC 718 discussed the development of the precautionary principle in the following words:
32. A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier the concept was based on the 'assimilative capacity rule as revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. The said principle assumed that science could provide policy-makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it WP (C) No. 7506/2007 nsk Page 46 of 96 presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11th principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the 'precautionary Principle', and this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows:
Principle 15: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage; lack of full scientific certainity shall not be used as a reason for proposing cost-effective measures to prevent environmental degradation.
33. In regard to the cause for the emergence of this principle, Charmian Barton, in the article earlier referred to in Vol. 22, Harv. Envtt. L. Rev. (1998) P. 509 at (p. 547) says:
There is nothing to prevent decision makers from assessing the record and concluding there is inadequate information on which to reach a determination. If it is not possible to make a decision with "some" confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. To ensure that greater caution is taken in environmental management, implementation of the principle through Judicial and legislative means is necessary.
In other words, inadequacies of science is the real basis that has led to the precautionary principle of 1982. It is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.
34. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainity. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (Justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. However, summing up the legal status of the precautionary principle, one commentator characterised the principle as still "evolving" for though it is accepted as part of the international customary law, "the consequences of its application in any potential situation will be influenced by the circumstances of each case". (See First Report of Dr. Sreenivasa Rao Pemmaraju, Special -WP (C) No. 7506/2007 nsk Page 47 of 96
Rapporteur, International Law Commission dated 3.4.1998 paras 61 to 72).
44. In Indian Council for Enviro-legal Action v. Union of India (1996) 5 SCC 281 the Apex Court concerned with the problems faced by people living next to chemical industrial plants in India, amongst other things, ordered the Government to strengthen environment protection measures and take remedial action to remove sludge. It also ordered that industrial units not complying with its orders should be closed. The Court observed that in matters relating to environment, it may not always be possible to lay down rigid or uniform standards for the entire country. While issuing notifications like the present, the government has to balance various interests including economic, ecological, social and cultural. While economic development should not be allowed to take place at the cost of ecology or by causing widespread environmental destruction and violation, at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand. In other words, there should not be development at the cost of environment and vice-versa, but there should be development while taking due care and ensuring the protection of the environment.
45. UNDERLYING FACTS We have noted above the respective cases of both the parties as well as principles governing environmental jurisprudence which have to be borne in mind while dealing with such issues. Before we WP (C) No. 7506/2007 nsk Page 48 of 96 analyse the arguments with reference to the law on the subject, it is necessary to take stock of some relevant and underlying facts concerning Yamuna. Therefore, at this juncture, let us take judicial notice of the critical condition of the river Yamuna and the steps that have been taken in the past few years by the judiciary and governmental organizations, hand in hand, to improve the same. Likewise, some other relevant facts having bearing on this issue also need a mention. This discussion is imperative as that may help us to understand the import of construction on the ecology and flood plains etc. :-
(a) DETERIORATING CONDITION OF THE RIVER YAMUNA
46. It is a known fact that the river Yamuna in Delhi has been in a bad shape for quite some time now and is referred to as a dead river. Once the lifeline of Delhi, Yamuna has now become the most polluted water resource of the country.  It overflows with filth, effluents, dirt and even dead bodies. It is said that there is a visible difference between the water quality at Palla (where the Yamuna enters Delhi) and at Okhla (where it leaves Delhi). As the Yamuna traverses through the city, it is slowly converted from a river to a drain. It is estimated that the 22 km stretch of the Yamuna that runs along Delhi - from Wazirabad in the north to the Okhla Barrage in the south- contributes 80-90 percent of the total sewage discharge into the river, reducing it to a stinking drain. From big industries and WP (C) No. 7506/2007 nsk Page 49 of 96 factories to people living in big colonies, slums and rural areas, all pollute the river with impunity because of untreated water.
47. The change of status of Yamuna (from a river to a drain) is owing to several factors. First, the huge water demand of Delhi city makes sure that a lot of water is withdrawn the very moment Yamuna touches Delhi. This reduces the volume of total water in the river as it flows through the city, leading to a reduction in the self-cleaning capacity. This water is then released back into the river, when it leaves the city (as sewage) which is the second most serious problem. There is a paucity of Sewage Treatment Plants (STPs) in the capital. There is also an incorrect estimation of the total number of such plants needed as the volume of water that is diverted from the river for drinking purpose is less than that released as waste - back to the river. Increasing pollution of the Yamuna has now become an international issue and a cause of concern for environmentalists. No doubt there was a time when river Yamuna was a lifeline of Delhi providing precious potable water to its residents. At present, the quality of river Yamuna is categorized as 'E'. This makes the water of river Yamuna unfit for even animal consumption. (Source:
http://delhigreens.com/2007/06/03/cleaning-the-yamuna-drain-in- the-capital/).
48. The Supreme Court under Article 32 and High Court under Article 226 are playing a great role for the protection of the river Yamuna. For more than a decade, it has been concerned with the quality of WP (C) No. 7506/2007 nsk Page 50 of 96 water in the river Yamuna. The Courts giving its raison d'etre have adopted a proactive approach in matters pertaining to the protection and preservation of the river Yamuna. In Dr. B.L.Wadehra v. Union of India, AIR 1996 SC 2969 it was taken on record by the Apex Court that the river Yamuna - the main source of drinking water supply - is the free dumping place for untreated sewage and industrial waste and whereby placing statutory obligation upon Municipal Corporation to scavenge and clean the city. In 2004, the matter of pollution of river Yamuna came up for consideration before the Supreme Court In Re: News Item published in Hindustan Times titled "And quite flows the Maily Yamuna, (2004) 8 SCC 638 and it was noted that although the Court had directed its attention to cleaning up the river almost a decade ago, there has been no improvement. However, the water quality has in fact deteriorated during the last about five years on a comparison of reports which were filed by the CPCB. The Court further noticed that figures placed before it showed that the quality of the river water was better before it entered Delhi; and stressed upon the need and expectations from the Government and all the agencies to take curative as well as preventive measures. The Apex Court has been monitoring the work of cleaning the river for the past 12 years after taking a suo motu cognizance of a news report about the pollution caused to the river.(See: News Item 'Hindustan Times' A.Q.F.M. Yamuna v. Central Pollution Control Board, (2000) 10 SCC 587).
WP (C) No. 7506/2007 nsk Page 51 of 96
49. A number of projects have been launched by various organizations to clean the Yamuna, but till date nothing encouraging has happened. The situation is worsening by the day. The Yamuna Action Plan (YAP) was launched in April 1993 but so far has been of no avail. More than a decade after its inception, YAP's achievements have been woefully short of its stated goals. However, newspaper reports have since indicated that despite an expenditure of Rs.87 crores on what is called the Yamuna Action Plans I and II, the river continues to remain as dirty as it was about a decade ago (perhaps more) and most people believe it to be nothing more than a sewer.
50. The deteriorating condition of the river Yamuna was taken note of by this Court in Baldev Singh Dhillon v. Union of India & Ors, (2005) 121 DLT 606 and reads as under :-
"The river Yamuna is one of the most important natural features of Delhi and supposed to be a major source of water supply to the city. River Yamuna in NCT of Delhi cuts through the city from the North to south for a length of merely 50 kms. The total of about 9700 hectares of land is situated in the designated river bed defined by the existing marginal bund on the Eastern and Western side. In a telling account of the present state of affair of river Yamuna, Mahinder Narain, J. has rightly brought out the sordid state of affair. That part of the river Yamuna which flows in Delhi can hardly be called a river. I is a big dirty drain today. Discharge of industrial affluents and other pollutants have caused havoc to this river. Delhi is practically without any natural source of water. With swelling population, which increases by at least half a million every year, there is serious water crisis. Need/Demand of water far exceeds the supply. For this limited supply also, Delhi has to depend on neighbouring Cities/States. It is a matter of common knowledge that the much hyped `Sonia Vihar Jal Yojana', the protect which started with fan-fare, is in a quandary only because we do not have water and neighbouring States have thus far expressed their inability to oblige Delhi in this regard. Therefore, it is high time that Yamuna is restored as a river with pure water - and "Krishna Teri Yamuna Maili" tag is removed. The suggestions which are made by Mahinder Narain, J. in his critique require serious consideration by the WP (C) No. 7506/2007 nsk Page 52 of 96 policy makers for cleansing Yamuna, though the said critique may be out of context in so far as legality of the issue at hand is concerned."
51. The Central Pollution Control Board's Report of 2007, "Water Quality Status of Yamuna River", covers the findings of monitoring studies undertaken between 1999 and 2005 and lists the Yamuna as the most polluted river stretch in the country and the 22 km long Delhi stretch is severely polluted. It is stated that Delhi contributes around 3,167 MLD (million litres per day) of sewage through 22 major drains joining the Yamuna. The Report further states that over Rs 2,000 crore (Rs 20 billion) has flown into the sewage canal (which the river Yamuna has become) since the government began its efforts to clean it up in 1985 - [Delhi's allocation of the Yamuna Action Plan is around Rs 573 crore (Rs 5.73 billion) and the state spent another Rs 1,200-1,500 crore (Rs 12-15 billion) on its sewage treatment plants since 1993]. Yet, the Bio Oxygen Demand, or BOD levels, in the river have gone up, not just steadily, but alarmingly. In 1993, these were measured at around 130 tonnes a day. This more than doubled to 276 tonnes a day in 2004 and, in February last year, the level was measured at 428 tonnes- this is nearly 50 times the safe standard for bathing.
52. This report clearly establishes that all the efforts undertaken by various authorities, organization etc. have not been able to achieve much. There is in fact deterioration thereof. Recently, the Delhi Government placed a plan before the Apex Court to introduce a new technology for cleaning the river Yamuna where displeasure was WP (C) No. 7506/2007 nsk Page 53 of 96 expressed by the Court, on the same lines, that despite spending crores of rupees on the clean-up, the quality of river's water has deteriorated in the last 15 years.
(b) PLANS FOR DEVELOPMENT OF THE RIVER YAMUNA
53. It is essential to keep this sorry state of the river Yamuna in mind before undertaking any step, discussion, debate, construction, whatsoever. At the same time, following discussion on plans for rejuvenation of the river also required to be noted :-
54. The Master Plan of Delhi - Perspective 2001 notified in August, 1990 recommended several measures for the stretch of the river Yamuna, thus:
"River Yamuna is to be made pollution free through various measures. On the big expanse of its bankslarge recreational areas are to be developed and to be integrated with other urban development so that the river is an integral part of the city physically and visually.
xxxxxxxx Rivers in the major metropolitan cities of the world like Thames in London and Siene in Paris have been channelized providing unlimited opportunities to develop the river fronts. After the results of the model studies for the channelization of the river Yamuna become available, development of the river front should be taken up considering all the ecological and scientific aspects as a project of special significance for the city."
55. The Master Plan of Delhi- Perspective 2021, notified on 7th February, 2007 further emphasized upon the conservation of the river Yamuna, in the following manner :-
"9.2.1 RIVER YAMUNA Once the lifeline, which spawned the many civilisations and Cities that grew in the area of the present NCT of Delhi, the River Yamuna today suffers from inadequate flow and quantum of water and an extremely high degree of pollution.WP (C) No. 7506/2007 nsk Page 54 of 96
The length of the river in the NCT of Delhi is 48 kms from Palla in the North to Okhla in the South, with a total river bed/flood plane area of around 97 sq.kms. which is about 7 percent of the total area of Delhi. A little over 50 percent of the river lies North of Wazirabad and the rest, around 22 kms., to its South, in the Urban area of Delhi. Apart from being the main sources of water supply for Delhi, it is one of the major sources of ground water recharge. However, over the years, rapid urbanisation, encroachments on the river banks, over exploitation of natural resources/water, and serious deficiencies and backlog in sanitation and waste water management services, have resulted in the dwindling of water flow in the river and extremely high levels of pollution in the form of BOD and Coliforms, etc. As against the stipulated 3mg./1, the designated water quality for bathing purposes, the water quality data for 2003-04 suggests that the BOD values range from 1-3 mg/1 at Palla, 5.56 mg/1 at Nizamuddin and nearly 7 mg/l at Okhla. Similarly, at all locations, except Palla, the total coliform levels are many times higher than the minimum tolerable standards for drinking and bathing purposes.
The major source of pollution in the river to the extent of about 80%, is the discharge of treated and untreated waste water through the 22 major drains, which flow into the river(Annexure-I). The CPCB data shows that six of these drains viz. the Najafgarh and the Supplementary Drain, the Shahdara Drain, the Drain near Sarita Vihar, the Maharani Bagh Drain, the Barapulla drain and the Sen Nursing Home Drain contribute almost 90 percent of the flow and 80 percent BOD load levels respectively.
The concerned agencies must ensure that through public awareness campaigns, people are discouraged from throwing garbage into the river or the drains and measures are taken to prevent throwing of garbage by the habitations along side. Regular de-silting of the drains should also be undertaken.
Measures for rejuvenation of River Yamuna
(a) The issue of pollution in the river Yamuna has engaged the attention of the Supreme Court for the last several years, and it constituted a Committee with Secretary, Ministry of Urban Development as a Member, to draw up an Action plan for the cleaning/rejuvenation of the Yamuna River. A summary of the recommendations of the Committee is given in Annexure II.
(b) Apart from the above measures, steps would also need to be taken to augment ground recharge from the river and decentralised wastewater treatment system. The creation of 'regulated flood plane reservoirs', for storing the excess monsoon overflow at suitable locations would augment the water retention capacity of the riverbed. The upstream of Wazirabad Barrage and some other areas offer such a potential. To facilitate ground water recharge it may also be WP (C) No. 7506/2007 nsk Page 55 of 96 ensured that minimum required flow in the river during lean season exists. The reservoirs may be created in low-lying areas.
(c) At another level, a strategy for the conservation/development of the Yamuna River Bed area needs to be developed and implemented in a systematic manner. This issue is sensitive both in terms of the environment and public perceptions. Any such strategy will need to take into account the cycle of flood occurrences and flood zones, the ground water recharge potentials and requirements, potential for reclamation derived from the foregoing considerations, designation and delineation of appropriate land uses and aesthetics of the River Front which should be more fully integrated with the city and made more accessible- physically, functionally and visually.
(d) Environmental study of the existing major drains should be conducted before their covering."
(c) CONSTRUCTION OF AKSHARDHAM
56. Another factor which also has relevancy to the issue at hand is the Akshardham Temple, which was built few years ago, allegedly on the riverbed of Yamuna. It is because of the reason that the Apex Court has put its seal of approval on this construction.
57. So far as the construction on the purported riverbed goes, the sprawling Swaminarayan Akshardham Cultural Complex has already come up on the eastern bank of the Yamuna, occupying over 24 hectares. The Akshardham complex was at the centre of controversy when in September 2004, DDA 'regularised' the complex after construction was completed. In August 2004, the Supreme Court admitted a PIL against the Akshardham complex, filed by UP Irrigation Department, the original owner of the riverbed and its floodplains. The Apex Court in UP Employees Federation case i.e., WP No. 353/2004 approved the construction of a permanent WP (C) No. 7506/2007 nsk Page 56 of 96 structure, namely, the Akshardham temple in the Pocket III area vide its order dated 12.1.2005, stating :-
"In this writ petition, the petitioners have challenged the allotment of certain land belonging to the State of U.P. situated allegedly on the riverbed of Yamuna. The petitioners also challenged the allotment of land abutting to the above land by the DDA to the third respondent on the ground that the same would adversely affect re-charging of underground water and the allotment is contrary to the land user as declared in the development plan.
Learned counsel appearing for the State of U.P. submitted that the land allotted to the third respondent which belongs to it was allotted on the condition that there shall be no construction on this land and in accordance with the said condition the first respondent has not put up any construction on this land but is developing the same as a green belt, therefore, there is no violation for the terms of the allotment.
Learned counsel appearing for the Delhi Development Authority contends that the construction that is being put up by the third respondent is in accordance with the sanctioned plan and the same is nearly 1700 meters away from the river bank. It is also submitted that the allotment and construction thereon was permitted after obtaining the opinion of the Central Water Commission and National Environmental Engineering Research Institute (NEERI) which is an autonomous body. Therefore, the allegation made in the petition is without any basis.
Since the petitioners are unable to rebut the above statements made by the learned counsel which is supported by affidavits filed in this Court, we are not inclined to entertain this petition and being satisfied in regard to the validity of the construction that is being made by the third respondent as lawful, we dismiss this petition."
(d) AREA IN QUESTION The area under River Zone was declared as 'Development Area' No. 173 under Section 12(1) of the Delhi Development Act, 1957 vide Notification dated 29th March, 1989, stating :-
(TO BE PUBLISHED IN PART IV OF DELHI GAZETTE DELHI ADMINISTRATION: DELHI WP (C) No. 7506/2007 nsk Page 57 of 96 LAND & BUILDING DEPARTMENT NOTIFICATION Dated the 29th March, 1989 Dev. Area Area in Hect. Description No.
173 3500 hect. Starting from a point of 1 km. upstream Wazirabad Barrage road along eastern Yamuna marginal bund till it meets the boundary of Union Territory upto point it meets newly constructed NOIDA bridge then along the northern boundary of the bridge upto Agra Canal then Dev. Area Area in Hect. Description No.
along to eastern boundary of Agra Canal upto Okhla head-works then towards ....illegible.... approach road to the head-works and along the eastern boundary of regularized unauthorised colonies of Batla House, Jogabai Village, Zakir Nagar, Khinzerabad village and then along the eastern boundary of Women Poly-
technic CRRI & Kalindi Colony till it meets Ring Road then along the eastern boundary of Ring Road till it meets Indraprastha Power House then along the eastern boundary of power house then along bund upto the point it meets Old Rly. Bridge then along the road joining Ring Road Crossing upto near Honkey Bridge then along the Ring Road upto 4 K.M. upstream Wazirabad Water Works along the Bund upto 1 km.
then along the imaginary line running parallel to Wazirabad Barrage on the northern side upto starting point excepting pockets of land already declared as „Development Area‟.
BY ORDER Sd/-
(Geeta Sagar) Joint Secretary (Land & Bldg.) Delhi Administration:Delhi
58. DDA prepared a conceptual scheme for land admeasuring 490 hectare failing in Pocket I, II and III in Phase I in 1995. The proposal covered by the conceptual scheme covering covering land admeasuring 490 Hectares, i.e., (i) Pocket - I between Ring Road and River Yamuna, South of Railway line and North of Nizammudin Bridge (NH-24), measuring 50 Hectares; (ii) Pocket - II between Ring Road and River Yamuna, south of NH-24 and north of ponton WP (C) No. 7506/2007 nsk Page 58 of 96 bridge measuring 180 Hectares, and (iii) Pocket - III between River Yamuna and Marginal Bund Road, south of Railway line and north of NH-24, emasuring 260 hectares was submitted to Yamuna Standing Committee in February, 1996 which was discussed in the 55th meeting of Yamuna Standing Committee of Central Water Commission on 15.7.1996 and subsequently, in the 56th meeting on 8th April, 1997 in which following was resolved:
"Channelisation of Yamuna in NCT of Delhi:- Keeping in view the various observations, it was decided to accord "No objection" of the Yamuna Committee to part channelisation of river Yamuna in the reach from IP Barrage to Nizammudin Road Bridge with reclamation of Pocket - III only. It was also agreed to process approval of the Yamuna Committee for development of Pocket - I and II also at the earliest.
The Chief Engineer (I&F), NCT of Delhi may take note of the decision and plan accordingly their flood protection works as mentioned in their letter dated 3.9.97."
59. A public notice was issued by DDA on 23.6.1997 inviting objections/suggestions for the proposed change of landuse for land admeasuring 35 Hectares falling in Pocket - III. In response to the aforesaid notice, three objections/suggestions were received which were discussed in the technical Committee Meeting held on 9.9.1997. Thereafter, the DDA resolved that a study should be got conducted from NEERI, INTACH or some other expert body about the possible environmental impact of the scheme on the entire area. In accordance with the resolution, the NEERI was entrusted with a study and thereby to formulate an "Environmental Management Plan" for the stretch of the River Yamuna in NCT, Delhi with an overall objective of rejuvenation of the river. NEERI submitted its WP (C) No. 7506/2007 nsk Page 59 of 96 report on "Initial Environmental Examination of Development Plan in Yamuna River Stretch between New Railway Bridge and ILFS Bridge" in January, 1999 (hereinafter referred to as "NEERI Report of 1999"). The NEERI Report of January, 1999 on page 4.8 suggested two alternatives for the development of the Yamuna riverbed, and are quoted as under :-
"Alterations in Project Setting Due to flood protection measures undertaken in the upstream, after the severe floods of 1978, the peak flood discharge in NCT-Delhi has been steadily increasing. In the absence of adequate measures to improve the channel capacity, the flooding in flood plains and contiguous areas has increased. This increase besides effecting the human settlements, has altered the vegetation pattern too. The subsequent flood protection measures exacerbated these impacts in many cases resulting in drying up of some pools, swamps and marshes.
It is important to consider the interventions to improve the carrying capacity of the channel with the following criteria for evaluation of alternatives :
Impact on Reed-Swamp Association and herbaceous and wooded communities (the 25th percentile flood waters should reach these ecosystems) Impact on potential for ground water recharge (the water retention and detention systems such as pools should receive the 25th percentile flood waters) Impact on stream geometry, temperature and sedimentation (by ensuring that the meandering of the river and islands in the stream are preserved).
Two alternative modified project settings and other environmental viability are described below :
Alternative I The following alterations in the land utilization plans ensure conformance to the suggested guidelines for development in the flood plain areas of 3 km stretch between New Railway bridge and proposed ILFS Bridge:WP (C) No. 7506/2007 nsk Page 60 of 96
The green belt along NH24 bordering recreational and camping sites in Pocket III may be 600 m in width to account for water spread during the peak flood discharges (as in 1995).
Topographical alterations in the green belts, recreational areas and camping sites may be dropped.
The proposed road in Pocket III (30 MROW) may be dropped A road, parallel to NH24, in Pocket III may be constructed Allocation of 0.1 ha and 3.0 ha of land in Pockets I and II respectively for land based treatment of wastewater discharged through the Drain No. 14 and Barapulla drain.
Alternative I also considered the dredging scenario to improve the carrying capacity of the channel. The preferred dredging scenario is outlined in Fig. 4.1. The volume of dredged material is expected to be 433 ha-m. The water spread areas are predicted through HEC-2 simulation model for different discharges after dredging is outlined in Figs. 4.2 and 4.3. The model predictions for flood way analysis with dredging is in Table 4.5. In this scenario, the Reed-Swamp Associations and herbaceous communities still receive 25th percentile flood waters. But the wooded community and pond near the New Railway Bridge in the Pocket III would receive water only during once in 50 years flood discharge. The stream geometry is not effected and meanders are maintained. It is estimated that sedimentation and thus maintenance dredging requirements would not be significant.
However, during the dredging operations care should be taken not to increase the turbidity of waters and to remove the bottom sediments. The dredged material can be used for reclamation of selected areas requiring elevation of ground level beyond 1 m, as outlined below :-
In Pocket III - a region reserved for Public/Semi-public utilities.
In Pocket II - a region reserved for convention centre (public & semipublic) The modified landuse with reference to guidelines for development and elements of preferred scenario are given in Table 4.6 and Fig. 4.4.
Alternative II After close review of Alternative I, by a group of experts constituted by DDA in consultation with NEERI it was decided to revise the land utilization plans in the 3 km stretch and Alternative II is suggested. It is depicted pictorially in Fig. 4.5 and details are given in Table 4.7. Dredging in Alternative II is not considered as the localized dredging may not result in the desired carrying capacity of the channel and feasibility of dredging in longer stretch needs further examination.WP (C) No. 7506/2007 nsk Page 61 of 96
As seen from the figure, the 30m ROW in Pocket III is retained as a road-cum-bund, constructed for a flood design of once in fifty years as per regulations, providing flood protection in order to developments in the land beyond this road in Pocket III. The landmass towards the left bank could be developed using suitable flood protection measures keeping in mind the once in 100 year flood scenario.
The development plans for Pocket I & II have not been approved by Central Water Commission. The land utilization plans suggested for Pocket I consider the criteria of line of sight for historical places and archaeological structures on right bank of river. In pocket I, a fly-ash brick making plan be designed for utilization of existing fly ash.
Also, comprehensive planning of Pocket I and II be done after taking due consideration of studies along the whole 55 km stretch of Yamuna in NCT-Delhi."
60. Further, the NEERI Report of June 1999 laid down that the proposed Yamuna River Rejuvenation Plan in a limited stretch of 3 Km. between New Railway Bridge and proposed ILFS Bridge in NCT- Delhi is an environment improvement effort. The plan needs alteration as suggested in Alternative II and needs to conform to delineated guidelines also in detailed project design. Alternative I, which involves larger landmass utilization in the floodplains of this stretch, especially pockets I and II, has been dropped because of uncertainties in the assessment of impact of localized dredging and its institutional feasibility. Alternative II meticulously follows precautionary approach considering the sensitiveness of the task and fragilery of the region. Conformance of land utilization and detailed project plan to the suggested Development Guidelines would ensure that this project would maximize environmental benefits to the region.
WP (C) No. 7506/2007 nsk Page 62 of 96
61. Based on the recommendations of the NEERI, change of land use admeasuring 42.5 Hectares in Pocket III was notified by Gazette Notification dated 21.9.99 from "agriculture and water body" to "public and semi-public facilities," and states as under :-
"TO BE PUBLISHED IN THE GAZETTE OF INDIA PART-II SECTION 3 SUB-SECTION (ii) No. K-20013/21/93-DDIB GOVERNMENT OF INDIA MINISTRY OF URBAN AFFAIRS & EMPLOYMENT DEPARTMENT OF URBAN DEVELOPMENT (DELHI DIVISION) ...
Nirman Bhawan, New Delhi Dated 21.9.1999 NOTIFICATION WHEREAS certain modifications which the Central Government proposes to make in the Master Plan for Delhi regarding the areas mentioned hereunder were published with notice No. F.20(11) 94-MP dated 23.6.97 in accordance with the provisions of Section 44 of the Delhi Development Act, 1956 (61 of 1957) inviting objections/suggestions as required by sub-section (3) of Section 11 A of the said Act, within thirty days from the date of the said notice;
2. WHEREAS objections/suggestions were received with regard to the said modification;
3. AND WHEREAS the Initial Environmental Examination Study (Phase I) Report has been submitted by National Environmental Engineering Research Institute (NEERI), Nagpur and based on which the Central Government have decided to modify the Master Plan;
4. NOW, THEREFORE, in exercise of the powers conferred by sub-section (2) of Section 11 A of the said Act, the Central Government hereby makes the following modification in the said Master Plan for Delhi with effect from the date of publication of this Notification in the Gazette of India:
MODIFICATION Land use of an area measuring 42.5 ha. (105.0 acres) bounded by green buffer/Railway line in the North, green buffer/marginal bund in the East, green buffer/NH-24 in the South and proposed parking/camping site in the West falling in Zone „O‟ (River Yamuna), Phase-I. Pocket III is changed from WP (C) No. 7506/2007 nsk Page 63 of 96 „agricultural and water body‟ (A-4) to „public and semi-public facilities‟ (R.S. Gusain) Under Secretary to the Government of India"
62. Thereafter, the ministry of Urban affairs vide Notification dated 18.8.06 changed the land use of 16.5 hectares of land from 'Agriculture and Water Body' to 'residential' (11.0 Ha) and to 'Commercial/Hotel' (5.5 Ha). The said notification reads as under :-
"MINISTRY OF URBAN DEVELOPMENT (DELHI DIVISION) NOTIFICATION New Delhi, the 18th August, 2006 S.O. 1321(E). - Where certain modifications which the Central Government proposed to make in the Master Plan for Delhi- 2001 regarding the area mentioned hereunder were published in the Gazette of India, Extraordinary, as Public Notice vide No. S.O. 273(E) dated 2nd March, 2006 by the Delhi Development Authority in accordance with the provisions of Section 44 of the Delhi Development Act, 1956 (61 of 1957) inviting objections/suggestions as required by Sub-section (3) of Section 11-A of the said Act, within thirty days from the date of the said notice.
2. Whereas a number of objections/suggestions were received in response to the above stated public notice dated 2nd March, 2006 with regard to the proposed modifications and whereas the Central Government have, after carefully considering all aspects of the matter, decided to modify the Master Plan-2001.
3. Now, therefore, in exercise of the powers conferred by Sub-section (2) of Section 11-A of the said Act, the Central Government hereby makes the following modifications in the said Master Plan for Delhi-2001 with effect from the date of Publication of this Notification in the Gazette of India.
Modifications:
(i) The land use of an area of 16.5 ha. in Pocket-III, Phase-I in Zone „O‟ is changed as per following description :-WP (C) No. 7506/2007 nsk Page 64 of 96
Location Area in Land use Land use Boundaries
hectares (MPD - 2001) changed
1 2 3 4 5
Pocket III 11.0 ha. „Agricultural „Residential‟ East-
Phase-I and Water Parking/Akshardham
In Zone „O‟ Body‟ Temple
South -
(ii) 5.5 ha. „Agricultural „Commercial/Ho Green/National and Water tel‟ Highway 24 Body‟ West - 45m wide embankment road North - Proposed 30m. road S. MUKHERJEE, Under Secy."
63. In order to review these developmental plans proposed from time to time by various organizations and to evolve a comprehensive development plan considering environmental issues, DDA engaged NEERI to prepare the Environmental Management Plan for Rejuvenation of Yamuna in NCT. NEERI submitted a Final Report on "Environmental Management Plan for Rejuvenation of River Yamuna" in October, 2005 (hereinafter referred to as "NEERI Report of 2005") which also covers this area. This Report also proposed two alternatives and reaffirmed the adoption of Alternative II para 2.6, pg 2.8 of its Report, and the same is reproduced hereunder :-
"Alternative land use models The following two alternative land use models have been worked out and given under: