[Reader-list] Fwd: YJA - here is what Hon'ble Justice Rekha Sharma had to say in her judgement

[Jeebesh]

from: yamunajiye at gmail.com



WP (C) No. 7506 of 2007

And

WP (C) No. 7507 of 2007



This judgement relates to a river which once flowed majestically but  
is now gasping for breath.  If this continues, time is not far off  
when this gift of Gods, will die an unnatural death getting buried  
beneath the layers of silt.  If no urgent remedial measures are taken  
Yamuna may exist only in books.  It is this fear an anxiety that has  
made me pen these lines.



During arguments it was common case of the parties that development  
cannot be divorced from environmental issues and that development has  
to be compatible with the need to preserve, project rather improve  
environment.  I think I am right in saying that it was at no point in  
dispute that development has to co-exist and not endanger or cause  
irreversible damage to nature.  I therefore need not go into any  
lengthy discussion on this aspect of the matter or on what the courts  
have said, for they have also not said anything different.



What then is disputed ?  The dispute is with regard to the application  
of the above said well delineated, well defined principles to the land  
in question located in Pocket III Phase I in Zone ‘O’.  Development  
projects have been undertaken in that area.  The petitioners says that  
the entire construction activity is on the riverbed itself which will  
destroy not only Yamuna but materially harm the entire ecologically  
sensitive area.  The respondents, on the other than, assert that the  
land in question is not riverbed and that in any case, the entire  
construction work has been undertaken after due deliberation and after  
obtaining required clearance from the authorities concerned and that  
all remedial measures have been taken.



Is the construction on the “river bed”? My noble brother has gone at  
great lengths to fathom meaning and import of the term “river bed” and  
after having undertaken that exercise has, in his wisdom left to an  
“Expert Committee” to decide as to whether the site in question is on  
the “river bed” or not.  I will revert to this “expert committee” a  
little later.  Let me first deal with the question as to whether the  
site in question is on the “river bed” or not and if not, to what  
effect.



Let us first have a look at the NEERI Report of 2005.  If we look at  
it carefully we will find that it described the land in question as  
“river bed”.  It says on page 2.8 of the report that “Being centrally  
situated and considering pressures on the land, the land in river bed  
is precious.”  Not only this, my learned brother has also noticed in  
paragraph 65 of his judgement and I quote:



“………..The MoEF has constituted independent Expert Committees called  
the Expert Appraisal Committee………. for seeking approval for the  
construction of the Commonwealth Games Village in the river bed.   
……….The Expert Appraisal Committee applied the precautionary principle  
to emphasise that the proposed work should not be of a permanent  
nature………. and the river bed may be restored to the river.



My brother has also noted in paragraph 66, the Environmental Clearance  
for the project, accorded on 14.12.2006, on the following condition:



“Since the design of the proposed structure is yet to be made, so far  
as possible the work should not be of a permanent nature……… the  
proposals should proceed with the assumption that the river bed may  
have to be restored to the river”.  (emphasis supplied)



I feel, with respect that in view of what has been noticed above, no  
doubt is left that the site in question is on the river bed.  However,  
to my mind, even if it be taken that the site in question is not river  
bed, yet the urbanization of the site and colossal construction, under  
way may yet adversely affect the environment, the river and ecology.   
That it can be so finds support from the following culled out from the  
Master Plan.



“Apart from being the main source of water supply for Delhi, it is one  
of major sources of ground water recharge.  However, over the years,  
rapid urbanization, encroachment on the river banks, over exploitation  
of natural resources/water and serious deficiencies and backlog in  
sanitation and waste waster management services have resulted in the  
dwindling of water flow in the river and extremely high levels of  
pollution in the form of BoD”.



During arguments, the respondents had heavily relied upon on the  
judgement of the Supreme Court in U.P. Employees Federation Case  
relating to construction of Akshardham Temple.  The order passed by  
the Supreme Court would go to show that the larger issue now raised  
before us were apparently not raised or gone into.  In any case, in  
view of the facts and circumstances of the present case and the great  
many disputed issued raised before us, the said judgement, with  
respect, cannot be treated as a binding precedent.



The Reports of the NEERI on which respondents had leaned heavily do  
not paint this body in bright colours.  Rather, they show how it has  
changed colours and has not bothered to contradict itself.  In its  
report of 2005 first it spoke against “heavy capital investment” and  
pleaded for “no large development activities except horticultural  
operations and provisions of green linkages with the adjoining and  
existing built up areas to maintain ecological balance and relief to  
the public”.  It also spoke of “maintenance of existing vegetation”  
and warned against encroachments, building activity and “urban sprawl”  
and in the very next breath it recommended release of vast chunk of  
land “for urban activities”.  Of course, my learned brother has also  
noticed the subsequent report of the NEERI and its affidavit dated  
January 29, 2008 and, with respect, I join him when he says “we are  
constrained to observe that his affidavit is the result of some of the  
loopholes in its earlier reports which were picked up by the  
petitioners and pointed out to the court.  From an institution of this  
repute, it was not expected that report of this kind would be  
submitted.”



It is not only NEERI, it is the Ministry of Environment and Forest  
also which is equally guilty of changing its position.  The proposal  
of DDA (who happens to be respondent No. 5) for seeking approval for  
the construction of the Commonwealth Games on the river bed came up  
for appraisal by the Expert Appraisal Committee constituted by the  
said Ministry.  It is important to note that the Committee visited the  
site and only thereafter, and obviously after due deliberations  
emphasized that the proposed construction should not be of a permanent  
nature and the structures raised should rather be dismantable.   
Adopting those recommendations and agreeing with them, the Ministry  
accorded clearance on 14.12.2006 observing as under:



“Since the design of the proposed structures is yet to be made, so far  
as possible the work should not be of a permanent nature. It should be  
possible to take this point into consideration and adopt dismantable  
structures.  Unless detailed studies lead to the conclusion that the  
proposed structures can be left behind permanently, the proposals  
should proceed with the assumption that the river bed may have to be  
restored to the river.”



And within a span of few days that report was ignored, the condition  
reproduced above was given a go-bye and the Delhi Development  
Authority was signaled to go ahead with the construction works  
“permanent or temporary” subject to certain conditions of little  
significant.  In any case, the DDA had no difficulty in obtaining  
report from CWPRS, Pune which too, on closer scrutiny appears to be  
dubious.



It is a sad story of men in haste fiddling with major issues and  
resultantly playing havoc.



The significance and importance of the Commonwealth Games is not lost  
on any one.  Even the petitioners acknowledged it.  The parties also  
acknowledge the importance of economic development and the concept of  
sustainable development.  Even the ambit and scope of public trust  
doctrine was not under challenge nor doubted and therefore, I need not  
deal with all these aspects.  It may be stated even at the risk of  
repetition that what was disputed was the impact of the building  
activity on the Yamuna, its environment, ecology and the long term  
damage which, it was stated by the petitioners was pregnant with  
disaster.



As would be borne out from the above neither NEERI nor Ministry of  
Environment and Forest nor DDA can be said to have acted fairly and  
objectively.  Their hands appear to be tainted.  The issues involved  
are of great significance and importance and they require  
dispassionate, honest and thorough examination by experts of eminence  
and impeccable integrity.  Since my learned brother also feels the  
same, we stand on the same pedestal.  I do feel that constitution of a  
Committee of Experts would help and with regard to that also I stand  
by the side of my learned brother.  It is a matter of great relief  
that Dr. R.K. Pachauri has agreed to be the Chairman of the said  
Committee.  However, my learned brother is silent about the  
constitution and other salient aspects concerning the Committee which  
need to be spelled out in detail.  Who will appoint the Committee ?   
Who will be its members ?  What exactly would be the scope of enquiry  
by the Committee ?  Can the Committee give interim report ?  And to  
whom ?  Similarly to whom it is to give the final report ?  And to  
what effect ?  These and other issues need to be dealt with.  I  
therefore issue the following directions:



(i)    A Committee of Experts would be constituted by the Court under  
the Chairmanship of Dr. R.K. Pachauri comprising of four members.   
Each party is directed to propose two names for its members within  
three weeks.  Out of the proposed, the court shall appoint members in  
consultation with the Chairman.  The Chairman, may, at his discretion,  
associate any non-members/expert/s.  The Committee shall undertake  
study of the constructions, whether proposed or completed or underway,  
on the land in dispute and report within four months of its  
constitution as to whether they or any of them,  whether in whole or  
in part affect or are likely to affect adversely, in any manner, the  
ecology of Yamuna river bed or the ecology of Yamuna river, its ground  
water recharge ability or violate in any manner, the public trust  
doctrine.  The Committee shall give reasonable opportunity of hearing  
to the parties before formulating its reports.  The parties shall  
extend required assistance to the Committee.

(ii)  On submission of the report, any of the parties may apply to the  
Court for any further direction.  The court may also suo-motu issue  
further direction/s as may be deemed proper after notice to the  
parties.  All constructions whether complete or incomplete or proposed  
to be constructed shall be subject to such directions as may be made  
by the court on the receipt of the report / interim report of the  
Committee of Experts.

(iii) If during the aforementioned study of the Committee of Experts,  
the Committee finds that any construction, complete or incomplete or  
proposed to be constructed adversely affects or is likely to affect  
adversely the ecology of the river or its flood plain or is not in  
accordance with the development plans as proposed and sanctioned  
keeping in view the conditions on which environmental clearances had  
been obtained and immediate remedial action is required, it may make  
an interim report to the court.  On receipt of such report, the Court  
may suo-motu or on an application by any of the parties, pass such  
order/direction/s as it may deem appropriate.

(iv) All third party interests created or proposed to be created on  
the land in dispute or in the constructions made or proposed to be  
made shall be subject to the directions as may be made by the court on  
the submission of reports of the Committee of Experts. It may be  
noticed here that we were told during the hearing that construction at  
a massive scale was being carried out.  We had made amply clear that  
if despite the pendency of the writ-petitions the respondents or any  
other person were raising constructions or were creating third party  
interests they were doing so at their own peril. I reiterate that.

(v)  The Central Government shall forthwith and not later than three  
weeks provide all working facilities including adequate office space  
and required staff to the Committee of Experts.

(vi) The directions with regard to the honorarium to the Chairman and  
the Members of the Committee of Experts and the expenses shall be  
issued later in consultation with the Chairman of the Committee of  
Experts.