Rajendra Singh & Ors.  INSC 1330 (30 July 2009)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4866-67
OF 2009 (Arising out of S.L.P. (C) Nos. 29055-29056 of 2008) D.D.A. ....
Appellant(s) Versus Rajendra Singh & Ors. .... Respondent(s) WITH CIVIL
APPEAL NOS.4868,4869,4870-71,4872-73,4874, 4875-76/ 2009 (Arising out of S.L.P.
(C) Nos 30075, 30112, 31123-31124/2008, 4408- 4409, 6256, 6029-6030 of 2009)
All these special leave petitions are directed against the common
judgment and order dated 03.11.2008 of the High Court of Delhi in W.P. (C) Nos.
6729 & 7506 of 2007 which, inter alia, issued certain directions for
setting up of 1 a Committee to enquire as to whether the Commonwealth Games
Village (CGV) site complex is situated on the Yamuna "riverbed" or
"floodplain" and further observed that any construction made or third
party rights created are at the peril and risk of the Organisers/Government.
by the said judgment, Delhi Development Authority (in short "DDA")
has filed S.L.P.(C) Nos. 29055- 29056 of 2008, Ministry of Urban Development
& Poverty Alleviation has filed S.L.P.(C) No. 30075 of 2008 and Ministry of
Youth Affairs and Sports has filed S.L.P.(C) Nos. 4408-4409 of 2009 as well as
S.L.P.(C) Nos. 6029- 6030 of 2009 and Organizing Committee, Commonwealth Games
has filed S.L.P.(C) Nos. 31123-31124 of 2008.
Kumar Jain, petitioner in W.P.(C) No. 6729 of 2007 before the High Court of
Delhi, has filed S.L.P.(C) No. 30112 of 2008 and Rajendra Singh & Ors
petitioners in W.P.(C) No. 7506 of 2007 before the High Court have filed
S.L.P.(C) No. 6256 of 2009 praying for stopping all 2 construction activities
on the riverbed of Yamuna other than CGV site and Delhi Metro Rail Corporation.
Since all the special leave petitions arise from the common judgment, all are
being disposed of by the following judgment.
Leave granted in all the special leave petitions.
Kumar Jain and Rajendra Singh and Others claiming as environmentalists
approached the High Court of Delhi by filing W.P.(C) Nos. 6729 and 7506 of 2007
for the following reliefs:
Directing the respondents to remove any construction, fill up, digging etc.
made so far and restore the ecology of Yamuna river bed.
Declaring the Yamuna riverbed in Delhi as an ecologically sensitive area and
hence to be protected and preserved.
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.
Directing that the respondents should locate an alternative site for the
project(s) as pointed out in the EAC recommendations dated 03.11.2006.
Setting aside of EC dated 14.12.2006 as being violative of Article 21 of the
Setting aside of EC dated 22.01.07; 29.03.07; and 02.04.07 as being arbitrary,
whimsical, mala fide and violative of Articles 14 and 21 of the Constitution.
Directing the respondents to restore the ecology of river Yamuna in accordance
with the "Polluters pay Principle".
any such other order as this Hon'ble Court may deem fit and proper in the facts
and circumstances of the case.
On 13.09.2003, Commonwealth Games Federation selected Delhi as the
venue for Commonwealth Games scheduled to be held from 3rd to 14th October,
2010. After due deliberations, XIX Commonwealth Games 2010 are being hosted in
Delhi pursuant to a commitment made by the Indian Olympic Association in the
form of an agreement in which it agreed to host the games in India with the
approved standards and requirements of the Commonwealth Games Federation.
Complaining that the Governmental agencies and the DDA are effecting various
steps including massive construction on the periphery of Yamuna river,
apprehending that the action being taken would not only destroy the river
Yamuna but also pose severe threat to the Delhi city as well and in order to
stop the entire proceedings, the said petitioners moved the High Court of
Delhi. The main claim of the petitioners before the High Court was to the
effect that the ongoing construction would affect the ecological integrity of
the "riverbed" besides causing irreversible damage to the "floodplain".
Refuting the apprehensions and the allegations of the public
interest litigants, the Respondents therein i.e. the Central Government
authorities - Ministry of Environment & Forests, Ministry of Youth Affairs
and Sports, Ministry of Urban Development and Poverty Alleviation, Government
of Delhi and DDA filed separate counter affidavits extensively dealing with all
the subjects including the apprehension about the alleged damage to the ecology
of the Yamuna riverbed, floodplain and other environmental hazards. Apart from
highlighting these aspects, they also placed various reports 5 from specialized
agencies like Ministry of Environment & Forests (MoEF), Delhi Metro Rail
Corporation (DMRC), National Environmental Engineering Research Institute
(NEERI) and Central Water Power Research Station (CWPRS).
The Government Departments in addition to clearing the
apprehension about damage to Yamuna `riverbed' and `floodplain', also
highlighted that the writ petitions are to be dismissed on the ground of
delay/laches. They also pointed out that when the change of
"category" was published by way of public notice, though certain
general objections were raised, no specific objection was raised by anyone much
less by the petitioners about the Yamuna riverbed or floodplain. With handful
of materials, both the writ petitioners and the official respondents
highlighted their case before the High Court. The Division Bench, by the
impugned order dated 03.11.2008, though refused to interfere with the project
in question, however, directed that the Committee under the Chairmanship of Dr.
R.K. Pachauri, which is to be constituted by the Government, is to examine and
monitor the construction 6 carried out by the DMRC. Apart from the said
direction, on the same day, one of the Judges i.e. Rekha Sharma, J. while
agreeing with the judgment prepared by A.K. Sikri, J. issued further directions
castigating the Government and made serious insinuation against their officers.
After those directions propounded by Rekha Sharma, J., the other learned Judge,
A.K. Sikri, J. approved the same by treating those directions and observations
as "post script" and held that the directions issued by Rekha Sharma,
J. would be deemed as directions of the Bench. Aggrieved by the conclusion and
ultimate directions, D.D.A., Ministry of Urban Development and Poverty
Alleviation, Ministry of Youth Affairs and Sports and Organizing Committee,
Commonwealth Games filed the above appeals by way of special leave petitions.
Dissatisfied with the conclusion of the Division Bench for not directing stay
of the execution of any proposal or any fresh construction except Commonwealth
Games Village and Metro Station contemplated on the river floodplain till the
appropriate authority is constituted for regulating the floodplain, the writ
petitioners have filed appeals by way of special leave petitions.
Heard Mr. G.E. Vahanvati, learned Attorney General for India, Mr.
Gopal Subramanium, learned Solicitor General of India, Mr. Parag P. Tripathi,
learned Additional Solicitor General of India and Mr. T. Andhyarujina, learned
senior counsel for Ministry of Youth Affairs & Sports, M/s. Sanjay Parikh
and M.L. Lahoty, learned counsel for the contesting respondents in the appeals
filed by the Government and for the appellants in Civil Appeals @ S.L.P.(C)
Nos. 30112/08 and 6256/09.
BY BOTH SIDES:
The main contentions raised by Mr. G.E. Vahanvati, learned
Attorney General for India and Mr. Gopal Subramaniam, learned Solicitor General
of India are as follows:- (i) Commonwealth Games Village (CGV) site was not
situated either on a "riverbed" or on the "floodplain" of
the Yamuna River.
Before proceeding with the formation of Commonwealth Games Village, NEERI
reports of 1999 and 2005 were 8 duly considered. NEERI, which is an expert and
autonomous body, in its report of January 2008, categorically observed that
site in question was not a "floodplain" or "riverbed".
Remedial measures suggested by Central Water Power Research Station (CWPRS) had
been accepted by the Government and being carried out.
Commonwealth Games Village is located in Pocket III which is beyond the
embankment. This Court, even in 2005, approved the construction of Akshardham
Temple which is 1.7 Km. away from the river Yamuna in Pocket III area which is
abutting the present site of construction.
on the report of NEERI, change of land measuring
hectares in Pocket III was notified on 21.09.1999 and the petitioners have
filed the Writ Petitions only in 2007. Hence, the same are liable to be
dismissed on the ground of delay/laches.
In addition to the above submissions, Mr. Parag P. Tripathi,
learned Additional Solicitor General of India and Mr. T. 9 Andhyarujina,
learned senior counsel for the Sports Authority highlighted that at each level
Ministry of Environment and Forest (MoEF) discussed with the environmental
authorities and there is no deviation or violation of the Masterplan or any
other rules relating to ecology and environment, more particularly, in relation
to river Yamuna.
M/s. Sanjay Parikh and M.L. Lahoty, learned counsel appearing for
the contesting respondents herein/petitioners before the High Court submitted
that NEERI reports in 1999 and 2005 does not permit the Government to proceed
with any construction in the Commonwealth Games Village site and the subsequent
report in 2008 was not acceptable in view of its earlier decision. They also
submitted that inasmuch as the city of Delhi is wholly depending on Yamuna
River, its "riverbed" and "floodplains" have to be
protected. They further highlighted that the site selected for Commonwealth
Games Village falls within the river zone wherein the construction activities
cannot be carried out without looking into the matter and evaluation by experts
like Dr. R.K. Pachauri, as directed 1 by the High Court. They finally submitted
that though they are not opposing the Commonwealth Games, they are more
concerned about the ecology and environment of the people of Delhi. With regard
to the Akshardham Temple and the order of this Court in 2005, it is stated that
no elaborate study was conducted by any of the specialized agencies, hence, the
said decision is not a binding precedent.
We considered the relevant materials, NEERI reports of 1999, 2005
and 2008, remedial measures suggested by CWPRS, MoEF and other specialized
bodies as well as the rival contentions raised by either side.
Development Plan in Yamuna River Stretch:
the materials placed by various specialized bodies we gather that the river
Yamuna is an important natural feature of NCT, Delhi and a source of major
water supply to the city. It draws its water from the upper reach of Yamunotri
glacier and traverses a distance of about 400 Km before joining river Ganga at
Allahabad. The river Yamuna in NCT, Delhi cuts through the city from the North
to the South for a length of nearly 50 Km of which about 22 Km is within the
urban stretch and the balance of about 28 km in the rural stretch. Over the
last few decades the water quality in the river has deteriorated due to
increased wastewater discharges from 18 major storm water drains and growing
encroachments in the river bed area. Also, the ecosystems supporting 1
migratory avifauna and ground water recharge are being continuously degraded
and require immediate attention for conservation. Further, the aesthetic,
recreational, and navigational potential of the river has not been harnessed in
planning for development during the last three decades.
number of development and other government agencies have proposed plans for
integration of river Yamuna in the planning for development in NCT-Delhi.
Although these urban planning proposals have emphasized the integration of the
river in the life of NCT- Delhi, the ecological role of the flood plains and
its conservation imperatives, the land-water interface phenomena, and aesthetic,
recreational and navigational potential have not been adequately emphasized in
any of the development proposal.
channelization, as proposed through various plans for the purposes of flood
control, drainage improvement, maintenance of navigation, reduction of bank
erosion etc. involve direct modification of the river channel.
methods for channelization involve enlargement of the channel by widening
and/or deepening to increase the channel capacity to carry the water that would
have otherwise spread onto the floodplain. The principal consequences of
channelization are physical and include disturbances to existing equilibrium in
channel hydrology. The environmental impacts include reduction in the
complexity of habitat by elimination of pools, riffles and non-uniformities in
channel geometry; and downstream flooding and sedimentation. It is therefore
necessary that the landscapes are comprehensively surveyed before planning for
restoration/ renaturalization/ channelization of the river Yamuna.
1 e) The
Delhi Development Authority, therefore, decided that an "Environmental
Management Plan" for the stretch of the River Yamuna in NCT, Delhi be
formulated with an overall objective of rejuvenation of the river. It retained
NEERI in August 1998 to undertake this study. This document delineates the
summary of the study providing recommendations after Initial Environmental
Examination of the proposed activities in Phase I of DDA's River Front
Development Plan. The IEE report delineates guidelines for development in the
flood plains of 3 Km stretch between new railway bridge and proposed ILFS -
NOIDA bridge through the study of existing situation in the flood plains and
contiguous areas. The proposed DDA plan is examined for its conformance with
the development guidelines. The areas of non-conformance are altered and the
actions to be taken for easing the stress on Yamuna river from the activities
in the contiguous areas delineated.
f) Due to
guide bunds at ITO barrage, Bhairon Marg and Pantoon bridge besides the
proposed New Rail Bridge for Mass Rapid Transit System between Nizamuddin
bridge and New Rail Bridge the waterway in this stretch from New Rail Bridge in
the north upto proposed ILFS-NOIDA Link Bridge in the south is almost channelized
and confined to a width of 550m.
total flood plain area in this stretch between left and right banks is 490 ha.
The dominant land use in these areas is agriculture and other land uses viz.,
vegetation, grasslands, settlements, a monument, horticulture, flyash
deposition are also found.
ambient air quality in the contiguous areas of river stretch is characterized
by the concentrations of primary gaseous pollutants in the range: Suspended
Particulate 1 matter (SPM) 189-722 (Mg/m3), Sulphur dioxide (SO2) 9.2-271
(Mg/m3) and Nitrogen Oxides (NOx) 18-34 (Mg/m3) exceeding the CPCB standards
for residential areas.
existing water quality in this stretch of the river has very high values of BOD
(19 mg/l) and COD (135 mg/l).
biological communities that have developed in the flood plains have
characteristics of pollution tolerance and cleaning up. The vegetation on the
flood plain area is characterized by grass lands, bushy and shrub vegetation,
plantations and cultivation. The aquatic vegetation is very poor in this
stretch due to degraded water quality of the river water. The species diversity
has severely degraded resulting in existence of five species of Phytoplanktons
and one species of Zooplankton only.
fauna in the river, available in monsoon and non monsoon seasons is the result
of migrated fingerlings from the upstream, feeding on decayed vegetation from
swampy areas on the bank.
discharges and levels at different gauging stations in river Yamuna during
1978, 1988 and 1995 indicate that the discharge and levels decrease by about 6
and 5.7% respectively along the stretch in NCT-Delhi.
Delhi Administration even as early as on 29.03.1989, by virtue of
powers conferred by sub-section (1) of Section 12 of the Delhi Development Act,
1957 read with the notification of the Government of India in the Ministry of
Health Family Planning and Urban Development dated 14.02.1969, the
Administrator of Union Territory of Delhi declared Yamuna 1 River Front, as
described in the Schedule as "Development Area" for the purpose of
the said Act. Thereafter, several uses of reclaimed lands in Phase I of
"River Yamuna" was considered and discussed in several meetings. As a
result of various studies, two proposals/alternatives were submitted for
consideration by CWPRS, Pune. Three Pockets which were identified are as under:
Due to the site constraints and presently non- availability of site, it is
proposed to be used mainly for public and S.P. recreational & parking
purposes. The parking proposed will take care of the spillover of parking
required for Pragati Maidan during the peak days, mainly for heavy vehicles.
It is proposed to be used for recreational and public & semi-public
district (convention centre) and office complex (GNTCD Offices), and race
Pocket-3 It is proposed to be used for recreational and public and semi public
subject was considered in the Technical Committee Meeting held on 26.09.1995,
wherein the following recommendations were made:- "The proposal on the
land to be reclaimed under phase-I along river Yamuna was discussed in detail
and the Technical Committee suggested in view of Authority resolution on the
subject, the broad land use pattern as worked out be placed before the next
Authority meeting as an agenda item. Land use pattern once agreed by the
Authority would be detailed out in house in consultation with Chief Engineer,
Irrigation & Flood Deptt. Total land utilization plan could be worked out
by holding National Competition taking into consideration the inputs from the
on going studies."
a Resolution was passed with the following observations:- (i) Presentation of
the scheme be also made before the Ministry of Environment & Forests for
possible funding by the Government of India under Yamuna Action Plan, specially
with reference to the river bund and boulevard.
Planning activity for spiritual park, hotels & Convention Centre be
immediately taken up after consultation with the Ministry along with action in
parallel for completion of procedural formalities relating to change in
International competition be invited after receipt of necessary clearances from
As a follow-up action with regard to land use change for Pocket
III, Phase I, Government of India, Ministry of Urban Affairs & Employment,
Department of Urban Development (Delhi Division) addressed a letter dated
08.05.1997 to the Commissioner (Planning), Delhi Development Authority, Vikas
Minar, New Delhi. In the said communication, the Ministry requested Delhi
Development Authority to issue public notice inviting suggestions/objections in
respect of approval of the Yamuna Committee for change of land use of Pocket
III, Phase I. Pursuant to the same, Delhi Development Authority on 23.06.1997
issued public notice. It is relevant to mention the contents of the said
notice:- 1 "DELHI DEVELOPMENT AUTHORITY No.F.20(11)94-MP Dated 23.06.1997
PUBLIC NOTICE The following modifications which the Central Government proposes
to make in the Master Plan/Zonal Plan for Delhi are hereby published for public
information. Any person having any objections/suggestions with respect to the
in writing to the Commissioner-cum-Secretary, Delhi Development Authority,
Vikas Sadan, `B' Block, INA, New Delhi with a period of 30 days from the date
of issue of this notice. The person making the objections/suggestions should
also give his name and address.
"The land use of an area, measuring about 2.0 hec. falling in Zone `C'
(Civil Line Area), bounded by Sewerage Treatment Plant in the North and West,
transmission site in the East and `Recreational Area' in the South, is proposed
to be changed from `recreational' to `Public and Semi Public facilities'.
land use of an area, measuring about 35 hec. falling in zone `O' (River Yamuna)
bounded by Railway line/proposed `Recreational' (Green Belt) in the North, NH-2
proposed Recreational Green Belt, in the South, Noida Link Marginal Bund Road
and proposed `Recreational' (Green Belt) in the East and the River Yamuna in
the West, is proposed to be changed from `Agricultural and Water body' (A-4) to
`Public and Semi Public facilities'.
indicating the proposed modification will be available for inspection at the
office of the Joint Director, Master Plan Section, 6th Floor, Vikas Minar, I.P.
Estate, New Delhi on all working days within the period referred above.
BANSAL) COMMISSIONER-CUM-SECRETARY DELHI DEVELOPMENT AUTHORITY"
1 It is
pointed out that certain comments have been received and all were duly
considered. The Central Water Commission also conveyed the approval of the
Yamuna Committee only for Pocket III out of Pockets I, II and III which were
submitted by the Delhi Development Authority for consideration.
After considering all the materials, a Notification was issued on
21.09.1999 which reads as under:- "GOVERNMENT OF INDIA MINISTRY OF URBAN
AFFAIRS & EMPLOYMENT DEPARTMENT OF URBAN DEVELOPMENT (DELHI DIVISION)
Nirman Bhawan, New Delhi Dated 21.09.1999 NOTIFICATION WHEREAS certain
modification 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 23.06.1997 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 11A of the
said Act, within thirty days from the date of the said notice.
WHEREAS 3 objections/suggestions were received with regard to the said
WHEREAS the Initial Environmental Examination Study (Phase-I) Report has been
submitted by National Environmental Engineering Research Institute (NEERI),
Nagpur and based on 1 which the Central government have decided to modify the
THEREFORE, in exercise of the powers conferred by sub- section (2) of Section
11A 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 publication of this
Notification in the Gazette of India;
Land use of an area measuring 42.5 hact. (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 `agricultural
and water body' (A-4) to public and semi public facilities.
GUSAIN) Under Secretary to the Government of India"
to the same, Master Plan for Delhi 2001 was also modified and the following
Notification was issued:- "THE GAZETTE OF INDIA: EXTRAORDINARY [Part
II-Sec 3(ii)] MINISTRY OF URBAN DEVELOPMENT (DELHI DIVISION) NOTIFICATION NEW
DELHI, THE 18TH AUGUST, 2006 S.O. 1321 (E). - Whereas 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 2 11-A of the said Act, within thirty
days from the date of the said notice.
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.
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.
land use of an area of 16.5 hec in Pocket-III, Phase-I in Zone `O' is changed
as per following description:- Area in Land use Location hec. Land Use Changed
Boundaries (MPD- 2001) Pocket-III (i) 11.0 Agirucltural Residential East- hec.
and Water Parking/Akshar Body Dham Temple Phase-1 (ii) 5.5 Agricultural
Commercial/ West-45m wide South - hec. and Water Hotel embankment
Green/National Body road.
24 North-proposed In Zone-`O' 30m road.
K-13011/25/2005-DD1B] S. MUKHERJEE, Under Secy"
It is also brought to our notice that the Cabinet Secretariat,
Government of India issued an Office Memorandum dated 24.08.2007 constituting a
High Powered Committee for Yamuna River Development Authority. The said Office
Memorandum reads as under:- "No. 731/2/1/207-Cab-III Government of India
Cabinet Secretariat Rashtrapati Bhawan New Delhi dated the 24th August, 2007
OFFICE MEMORANDUM Sub: Constitution of Yamuna River Development Authority As
approved by the Prime Minister, it has been decided to constitute a High
Powered Committee for Yamuna River Development Chaired by the Lt. Governor,
Govt. of NCT Delhi with the Chief Minister of Delhi as Vice-Chair. The
composition of the High Powered Committee would be as follows:- 1) Lt.
Governor, Delhi Chairperson 2) Chief Minsiter, Delhi Vice Chairperson 3)
Secretary, M/o Urban Development Member 4) Secretary, M/o Environment &
Forests Member 2 5) Secretary, Ministry of Water Resources Member 6) Chief
Secretary, GNCT of Delhi Member 7) Pr. Secy, Urban Development, GNCT of Delhi
Member 8) CEO, Delhi Jal Board Member 9) Vice Chairman, DDA Member
terms of reference of the High Powered Committee shall be as follows:
studies on different aspects of the development of the river, viz., hydrology, ecology,
environmental pollution, sustainable use of the river front, etc., to feed into
the policy frame work.
Develop a policy framework and prepare an integrated plan addressing issues of
both quantity in terms of river flow and quality in the Yamuna River.
Develop an operational plan for implementation of the river action Programme.
intersectoral coordination for planning and implementation until such time a
statutory arrangement is in place.
Suggest the design for statutory framework.
committee would be free to co-opt expert members as felt by the Committee.
committee would submit a three monthly report on action to the Prime Minister's
Office though the Cabinet Secretary.
Kumar) Joint Secretary to the Government of India"
It is also brought to our notice that at the request of the Chief
Engineer (SEZ), Delhi Development Authority, New Delhi, regarding environmental
issues of Commonwealth Games Village, Dr. R. K. Pachauri has consented to head
the 2 panel to monitor the on-going construction at Commonwealth Games Village
site. The acceptance letter finds place at Page 364, Volume-II of the
The above materials as projected and demonstrated by learned
Attorney General and Solicitor General clearly show that, at every stage,
ecological integrity of the river, the concept of "riverbed",
"floodplain" and "river zone" were duly considered. It also
reveals that the expert bodies like NEERI and CWPRS were duly consulted and
based on their expert opinion the land under Pocket III alone was reclassified
and Master Plan Delhi 2001 was also suitably amended.
Now, let us consider the objections and contentions raised by Mr.
Sanjay Parikh with regard to NEERI report and subsequent changes such as classification
of Pocket III and modification in Master Plan Delhi 2001. It is his grievance
that though in the reports submitted in 1999 and 2005, NEERI has not
specifically permitted the Government or the DDA to use the land in question
for any other activities, but in January, 2008 it has changed its view in order
to suit the 2 convenience of the organizers of the CGV. In the light of the
persistent claim made by Mr. Sanjay Parikh, we have carefully verified the
reports submitted by NEERI in 1999, 2005 as well as in 2008. In order to
understand the reports of NEERI and other expert bodies, it is to be noted that
the site selected for CGV falls in Khasra Nos. 48, 49, 51, 52, 57, 58, 59, 60,
61, 63 and 64 of Mauza Chiraga Zanubi. It is located in Pocket-III and 1.2 kms
away from Yamuna river. It is not in dispute that the site located is adjacent
to Akshardham Temple which had been approved by this Court in the order dated
12.01.2005 in Writ Petition No. 353 of 2004 which we will discuss in the later
part of the judgment. In 1999 report, NEERI has suggested that the area beyond
the bund is to be reclaimed for development and construction. It was brought to
the notice of the High Court and highlighted before us that water recharge pond
as suggested in the report had not been disturbed or damaged.
Learned Solicitor General of India has clarified that NEERI report
of 1999 as well as 2005 are silent about 2 Akshardham construction bund
constructed in 2002 and the area marked in 2003 for CGV. In those circumstances,
it was pointed out that the general guidelines provided by NEERI in 2005 are
subject to what has been specifically approved. It speaks about the general
guidelines for development of riverbed. Though in the NEERI report 2005, it was
observed that no residential or industrial facilities requiring permanent
structure should be provided on the riverbed, the learned Solicitor General of
India pointed out 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 within Akshardham bund which had come into existence later as it was
not part of the original study carried out by NEERI in the year 1999. It is
relevant to mention that after taking note of the embankment, it clearly
observed that the area does not form part of the "floodplain". The
same reads as under:
the definition of the project area, as considered by MoEF in its clearance
letter dated 29th 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 2 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
supplied) 21) In January, 2008, NEERI submitted a report after considering the
earlier reports and various relevant materials supplied by MoEF and analyzing
Environmental Impact Assessment Study of CGV site and with the assistance of
Central Water Commission, Ministry of Urban Development, Environmental
Management Plan for Rejuvenation of River Yamuna. The said report was based on
relevant materials and by way of scientific study. It is useful to refer the
relevant part of the report.
Games Village Complex by Delhi Development Authority in Pocket III of Sub-Zone
6 of Yamuna River Introduction India will be hosting the prestigious
Commonwealth Games 2010 in the City of Delhi. For the accommodation of the
sports persons and the officials of various countries, DDA has proposed to
create a Commonwealth Games Village (CGV) complex in Pocket III of Sub Zone 6
of Yamuna River.
village complex is designed to provide accommodation for a maximum 10,000
persons (during and post commonwealth games 2010). It will also provide other 2
facilities like parking, swimming pools, athletic tracts, police station, water
and wastewater treatment plants, electrical substation and metro rail station.
To provide the safety of Pocket III, against any flood of the highest
magnitude, DDA has constructed an embankment having top width of 20m and a
bottom width of 45m connecting the new railway bridge and NH-24 Bridge.
Statement DDA requested NEERI's opinion through letter no. CE(SEZ)7(213)07/113
dated 14/01/08 on three aspects given below:
a. It is
correct that the land where Commonwealth Games Village is being constructed is
not a part of the Yamuna Flood Plain, more so after the construction of
embankment (Akshardham Bund).
Whether after compliance of the conditions imposed by the MoEF, while according
environmental clearance of the Commonwealth Games Village, is there any threat
of environmental degradation/loss of ground water recharge.
Whether any further additional abatement/mitigation measures are required to be
NEERI submitted a report titled "Initial Environmental Examination of
Development Plan in Yamuna River Stretch between Railway Bridge and Proposed
ILFS Bridge" during January 1999. Figure 1 presents the proposed landuse
for riverbed development in Pocket III as recommended in the report. Block 10
(15 hec.) and 11 (27.5 hec.) was recommended for public/semi public use. Block
12 was recommended as parking area. Block 13 (16.5 hec.) was recommended for
campsite, which was expected to be open to the river front and Block 14 was
recommended fro groundwater recharge pond, to be filled up by Yamuna River
water. Block 15 was recommendes as wooden community to enhance terrestrial
biodiversity. NEERI further submitted a complete rejuvenation plan for River Yamuna
in NCT in April 2000. Various central and state government ministries and
departments reviewed this report. Based on the comments 2 and observations
NEERI submitted the final report in October, 2005. However, NEERI report did
not assess any embankment (Akshardham bund), which came into existence by that
time, as it was not part of the original study.
Assessment DDA has proposed the development of CGV in Pocket III Block of
Subzone 6 of the Yamuna River. From the historical development of Pocket III,
we have the following details:
Ministry of Water Resources, which is the supreme authority for giving
permission to any activity in India pertaining to water bodies, etc., has given
clearance for reclamation of Pocket III for the development (vide Noting No
16/1/YC/97/EM-1/376-88, dated 28th May, 1997, Item 56.2.1 of Flood Management-l
Dte, Central Water Commission, Government of India).
Gazette Notification dated August 18, 2006 by Government of India, Ministry of
Urban Development, has notified the modified Master Plan for Delhi indicating
landuse for 16.5 ha in Pocket III, Phase I in Zone "O" as follows.
III (area 11 ha) changed landuse-Residential 7 Phase I in Zone "O"
(area 5.5 ha), changed landuse- Commercial/hotel.
notification, the boundaries indicated for this pocket are Parking/Akshardham
Temple in East, Green/National Highway 24 in South, 45 m wide embankment road
in West and Proposed 30 m road in North.
the proposed CGV in this pocket, environmental clearance has been obtained by
DDA from MoEF by submitting necessary documents. The documents included a
report titled "Environmental Impact Assessment study of Commonwealth Games
Village" prepared by M/s. EQMS India Pvt. Ltd. Delhi on behalf of DDA. MoEF
granted environmental clearance to the project vide its letter dated Dec 14,
2006 subject to specific conditions under development/construction phase,
operation phase and general conditions. The Ministry also sought clarification
on upstream flooding and further directed DDA to conduct a study (vide its
letter dated Jan 22, 2007). DDA engaged 2 Central Water and Power Research
Station (CWPRS), Pune for the study on "Hydraulic Model Studies for
Assessing the Effect of Akshardham Bund on the Flow Conditions in the River
Yamuna at Delhi" and submitted that report to MoEF in March 2007. The
CWPRS study indicated that the bund would cause insignificant flood problem in
the upstream as well as in the region of the bund. The study indicated that a
free board of 2.2 m would be available as the top elevation of this embankment
is 208.3 m above MSL, whereas the highest water level for severest flood, with
magnitude of 12,750 cum/s, is estimated as 206.1 m above MSL. These ensure the
complete safety of Pocket III against any flood.
submission of this report, MoEF emended its environmental clearance letter of
14/12/2006 and issued an amended letter on March 29, 2007. This letter mentions
the total project domain and directed DDA to undertake mitigation/abatement measures,
as identified by CWPRS.
further directed DDA to comply with the following conditions.
raise and strengthen the embankments along the river in the UT of Delhi, to
cater safely for a discharge of 9,910 cum/s and also to check that the embankment
is not over topped, in case the discharge increases to 12,750 cum/s.
Strengthen the existing embankments and guide bund, up to a minimum free board
of 1.8 m. The guide bund should also be strengthened to check flood discharge
of 12,750 cum/s.
order to protect the Akshardham Bund, the left upstream guide bund of
Nizamuddin road bridge, the left downstream of Nizamuddin Railway Bridge and
the right bank between Nizamuddin Railway Bridge, Nizamuddin road bridge,
provide a layer of stone crates of 1.0m x 1.0m x 0.85m on the sloping portion
as well as an apron over geofabric filter shall be laid. On the rear side of
the bunds, turfing shall protect the slope.
reviewed the above-mentioned reports and necessary documents supplied by DDA.
NEERI did not do any further study. NEERI has the following observations:
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. 45m 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
mitigation measures prescribed by MoEF in its clearance letter dated 14
December, 2006, if implemented, should be adequate for environmental
safeguards. The concern about groundwater recharge in this region can be
addressed by creating an appropriate water body in the project area.
a detailed action plan including artificial recharge for the same should be
formulated to avoid any depletion in the groundwater level.
monitoring committee should be constituted to review periodically the post
project environmental quality. The committee should guide DDA on mitigation
have already referred to the notification of the Delhi Administration dated
29.03.1989 declaring Yamuna River Front as "Development Area" for the
purpose of Delhi Development Act, 1957. After due deliberations and various
studies, three pockets were identified and submitted to CWPRS, Pune. Based on
its report, the matter was discussed with NEERI and finally the DDA after
hearing public objections/suggestions in respect of change of land use of 3
Pocket-III Phase-I issued a notification in the Gazette of the Government of
India on 21.09.1999. The said notification makes it clear that land use of an
area measuring 42.5 hectares (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 is changed from
"agricultural and water body" to "public and semi-public
facilities". In addition to the same, Government of India, Ministry of Urban
Development also issued a notification modifying the land use from
"agricultural and water body" to "public and semi-public
facilities". Based on the above materials, a High-Powered Committee for
Yamuna River Development Authority was constituted with the approval of the Prime
Minister by the Cabinet Secretariat on 24.08.2007 consisting of the Lt.
Governor, Government of NCT as Chairperson, Chief Minister, Delhi as
Vice-chairperson and Secretaries of Urban Development, Environment and Forests,
Ministry of Water Resources, Chief Secretary, GNCT of Delhi, Principal
Secretary, Urban Development, GNCT of Delhi, Chief Executive Officer, Delhi Jal
Board, Vice Chairman, DDA 3 as Members to go into the aspects of development of
the river, ecology, environmental pollution, sustainable use of river front and
quality of water in the Yamuna river. We were told that the said Committee in
association with Dr. R.K. Pachauri is monitoring the ongoing construction of
CGV. In such circumstances, we are unable to accept the contention of Mr.
Parikh. We are equally of the view that the High Court is not justified in
making comments on the NEERI report presented in January, 2008.
23) It is
brought to our notice that during the course of hearing in view of certain
doubts raised by counsel for the petitioner before the High Court, NEERI filed
an affidavit dated 29.01.2008 wherein it clarified the entire aspects and
asserted that the site in question is not even "floodplain" much less
a "riverbed". It is also pointed out in its report that 85% of the
land at the present site is being used for recreational purposes and 15% for
development purposes (including residential and commercial). We have already
pointed out that the present 3 site falls within Pocket-III, the NEERI and
Yamuna Standing Committee gave clearance only for development of Pocket-III.
Though there is no statutory definition for "riverbed" and
"floodplain" from the statute, the dictionary meaning of the same is
has been defined as the area over which the river flows. In the Thames
Conservators Case  2 QB 335 at 337 it was held that the word riverbed
denotes that portion of the river which in the ordinary or regular course of
nature is covered by the waters of the river.
"bed of the river" was defined as the area covered by the river and
is the space sub-adjacent to the river over which it flows between the banks.
It is the space between the banks occupied by the river at its fullest flow.
Black's Law Dictionary, 6th Edition (Pg 154) describes a river bed as the
hollow channel of a water course; the depression between the banks worn by the
regular and usual flow of water; The land which is covered by the water in its
ordinary low stage; The area extending between the opposing banks measured from
the foot of the bank from the top of the water at its ordinary stage.
Ramanatha Aiyer's Advanced Law Lexicon, Volume 4, 2005 Edition (Pg. 4157-4158)
has described the bed of a river as the space contained between the banks;
river bank in turn has been defined in the same law lexicon as the boundaries
of a river throughout its width when the water flows to its maximum quantity.
"Floodplain'" - Land adjacent to rivers, which, because of its level
topography, floods when river overflows. [Black's Law dictionary, 6th Edn.,
p.641] It is also been defined as `a low, flat area in either side of a river
that can accommodate large amounts of water during a flood, lessening flood
damage further downstream' [Fredd Michaels, `Dictionary of Environment Studies']
In view of the literal meaning and in the light of the clarification by NEERI
in their affidavit dated 29.01.2008, the site in question is neither a
"floodplain" nor a "riverbed", hence contrary arguments of
the writ petitioners before the High Court and in this Court and the ultimate
conclusion of the Division Bench for appointment of a fresh Committee cannot be
already pointed out and in fact not in dispute that the present CGV site is
situated adjoining to Akshardham temple. When land was allotted for
construction of Akshardham Temple, U.P. State Employees Confederation and Anr.
filed Writ Petition No. 353 of 2004 before this Court under Article 32 of the
Constitution of India. At the relevant 3 time, the land was in the hands of the
State of U.P. The petitioners therein also challenged the allotment of the said
land by the DDA to the third respondent (Akshardham) on the ground that the
same would adversely affect recharging of underground water and the allotment
is contrary to the land user as declared in the development plan. It was also
objected by the State of U.P. that the land allotted to the third respondent on
the condition that there shall be no construction in the land in question and
the first respondent (UP Government) has not put up any construction but is
developing the same as a green belt and there is no violation of the terms of
allotment. On behalf of the DDA, it was stated that the construction that was
being put up by the third respondent is in accordance with the sanctioned plan
and the same is nearly 1700 metres away from the Yamuna River bank. It was also
placed before this Court that the construction there on was permitted after
obtaining the opinion of the Central Water Commission and NEERI which is an
autonomous body. Accepting the above statements, supported by the report of
NEERI and in terms of sanctioned 3 plan approved by the DDA, this Court
declined to entertain the writ petition and dismissed the same. After hearing
all the parties, the said order was passed on 12.01.2005. The reading of the
order of this Court makes it clear that the present CGV site and the site
allotted for Akshardham temple form part of the same area and both are adjacent
to each other. It is also clear that on perusal of the sanctioned plan by the
DDA and opinion of the Central Water Commission as well as NEERI, this Court
rejected the contention of the petitioner therein by dismissing their writ
petition. In the light of the reasoned order by this Court, it is unfortunate
that the High Court has commented that the said decision is not a binding
decision and not applicable to the case on hand.
us consider whether the writ petitions filed in the High Court in the year 2007
is justifiable and ought to have been dismissed on the ground of delay/laches.
Though an objection was raised by all the official respondents before the High
Court about the inordinate delay in filing the writ 3 petitions by the
petitioners, the said aspect was not either adverted to or considered by the
Division Bench. We have already referred to the fact that the site in question
was changed to "public and semi-public" way back on 21.9.1999.
re-classifying the site, the DDA and the concerned authorities issued public
notice calling for objections/suggestions. The particulars furnished by the
official bodies clearly show that after getting the suggestions from the public
change of land use for the site falling in zone `O' was changed on 21.9.1999
from "agricultural and water body" to "public and
semi-public" purpose. Apart from this, the decision of hosting the
Commonwealth Games at Commonwealth Games Village site was taken in 2003. The
Department also issued a Global Tender process for Public Private Partnership
("PPP") participation in the residential portion of the Commonwealth
Games project which was floated in December 2006 and was completed in June
from these materials, it was also highlighted before the High Court as well as
before this Court to the effect that Environmental Clearance was granted on
14.12.2006 3 permitting permanent structures on the site after taking into
consideration that the MoEF had stated "since environmental significance
and public open space amenity of the river flood plain should be recognized, it
was urged that the concerned authorities (DDA) that an extension of similar
development in the area between Yamuna and its flood protection bunds must not
be proposed without due environmental planning and prior environmental clearance."
It was highlighted that in the light of the suggestions of Ministry of
Environment and Forests, studies were carried out and after completion of such
studies permanent structures were permitted to be constructed on the site in
April 2007. Unfortunately, the High Court has lost sight with regard to these
material aspects. In Narmada Bachao Andolan vs. Union of India, (2000) 10 SCC
664 para 229, this Court has held that the PIL should be thrown out at the
threshold if it is challenged after the commencement of execution of the
project. It was also held that no relief should be given to persons who
approach the Court without reasonable explanation under Articles 226 and 32
after inordinate delay. We reiterate that the delay rules 3 apply to PILs also
and if there is no proper explanation for the delay, PILs are liable to be
summarily dismissed on account of delay. In the case on hand, it is not in
dispute that both the petitioners though claiming that they are very much
conversant with environment and ecology, approached the High Court only in the
middle of 2007, hence on the ground of delay and laches, the writ petitions
were liable to be dismissed.
view of our discussion, the conclusion of the High Court that whether present
construction is on the "riverbed"
"floodplain" requires further consideration of an Expert Committee
cannot be sustained. In view of the abundant materials, which we discussed
above, there is no ground for consideration by another Expert Committee, when
admittedly the High Powered Committee with the assistance of Dr.
is monitoring the entire work. As pointed out earlier, the observation of the
High Court about the decision of this Court in respect of Akshardham temple
stating that the same is not a binding precedent is also not acceptable. We
have 4 already pointed out that before rejecting the writ petition filed by the
U.P. State Employees Confederation and Ors., this Court, based on the
sanctioned plan and noting the distance between Yamuna river and the site in
question (Akshardham Temple) is nearly 1700 metres and taking note of the fact
that the construction thereon was permitted after obtaining opinion of the
Central Water Commission and NEERI which is an autonomous body, dismissed the
said writ petition. Inasmuch as the present CGV site is adjacent to Akshardham
Temple, the earlier decision of this Court with reference to Akshardham Temple
cannot be ignored, on the other hand, the same is applicable to CGV site also.
the light of the above discussion, the following conclusions would emerge:
view of notification in the Gazette of the Government of India dated 21.09.1999
relating to change of land use and to the fact that the site in question for
the construction of CGV had been chosen and widely published way back in the
year 2003 itself, the writ 4 petitions which were filed before the High Court
of Delhi only in the year 2007, in the absence of proper explanation, the High
Court ought not to have probed the matter at this juncture.
(b) On a
conjoint reading of NEERI reports 1999, 2005 and January, 2008 coupled with its
assertion in the form of an affidavit dated 29.01.2008 clearly show that the
CGV site is not either on a "riverbed" or on the
"floodplain" of the Yamuna river.
decision of expert and autonomous body - NEERI supported by materials placed by
other bodies such as CWPRS and MoEF, the same cannot be lightly interfered with
by the Court without adequate contra materials.
due deliberations by the DDA with other departments including the Yamuna
Committee and pursuant to the elaborate discussion on 10.11.1997 itself, 35
hectares of land were recommended for change 4 of land use and the same was
approved (Pocket-III) on 21.09.1999 for "public and semi-public
Before change of the land use, the authority concerned issued public notice,
heard objections/suggestions and in consultation with expert bodies such as
NEERI, CWPRS and MoEF, approved the said proposal and permitted the DDA to use
the area covered under Pocket- III for "public and semi-public
observation and conclusion of the High Court that the site in question is on a
"riverbed" cannot be sustained. The High Court disregarded and
ignored material scientific literature and the opinion of experts and
scientific bodies which have categorically held that the CGV site is neither
located on a "riverbed" nor on the "floodplain". Further,
in view of the change of the land use which was approved way back in 1997 by
the Yamuna Committee and by NEERI permitting the DDA to use Pocket-III for
"public and semi-public purpose", the 4 contrary conclusion arrived
at by the High Court is liable to be set aside.
Inasmuch as Akshardham Temple site is adjacent to CGV site, the decision of
this Court dated 12.01.2005 in Writ Petition (C) No. 353 of 2004 has bearing on
the issue and it is a binding precedent for all purposes.
direction of the Division Bench for formation of a fresh Committee by the
Government to examine and monitor the construction carried out by the DMRC is
also liable to be set aside. However, as assured by the Attorney General for
India, the Committee approved by the Prime Minister of India consisting of Lt.
Governor of Delhi as Chairperson, Chief Minister of Delhi as Vice- chairperson
and other members who are all representing various departments should monitor
the entire activities in association with Dr. R.K. Pachauri.
view of our conclusion, the DDA and other authorities are free to proceed with
the work at CGV site.
With the above directions and observations, we set aside the common judgment
and order of the Delhi High Court dated 03.11.2008 in W.P. (C) Nos. 6729 and
7506 of 2007.
Civil Appeal Nos.4866-4867, 4868, 4872-73, 4875-4876 & 4870-4871 of 2009
arising out of S.L.P. (C) Nos.
of 2008, 30075 of 2008, 4408-4409 of 2009, 6029-6030 of 2009 and 31123-24 of
2008 are allowed on the above terms and Civil Appeal Nos. 4869 & 4874 of
2009 arising out of S.L.P. (C) Nos. 30112 of 2008 and 6256 of 2009 are
dismissed. No order as to costs.
......................................CJI. (K.G. BALAKRISHNAN)
..........................................J. (P. SATHASIVAM)
..........................................J. (B.S. CHAUHAN)
JULY 30, 2009.