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BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
..............
APPLICATION NO. 02 of 2013 In the matter of :
1. Sarang Yadwadkar, A-90, Pradnyangad Apartments, S.No.119/3, Behind Navashya Maruti, Sinhagad Road, Pune-411030
2. Vivek Velankar, President, Sajag Nagrik Manch, 1200, Sadashiv Peth, Limaye Wadi, Pune-411030
3. Parineeta Dandekar, A-2/402, Kanchanban Apartments, Shivtirth Nagar, Kothrud, Pune-411038
4. Dilip Jaywantrao Mohite, B-28, Pradnyangad Apartments, S.No. 119/3, Behind Navashya Maruti, Sinhagad Road, Pune-411030
5. Sanjay Babanrao Bhosale, 244, Bhawani Peth, Mahatma Phule Marg, Pune-411042
6. Narendra Sunderlal Chugh, 15/3, PWD Quarters, Pimpri Colony, Pune-411017.
.....Applicants Versus
1. The Commissioner, Pune Municipal Corporation, Shivajinagar, Pune-411004
2. JNNURM Office, Nirman Bhawan, Maulana Azad Road, New Delhi 1
3. The Chief Engineer, Khadakwasla Irrigation Division, Irrigation Department, Govt. of Maharashtra, Sinchan Bhavan, Barne Road, Mangalwar Peth, Pune-411011
4. Maharashtra Pollution Control Board, Through the Regional Officer, Pune, Jog Centre, 3rd Floor, Mumbai-Pune Road, Wakadewadi, Pune-411003.
.......Respondents Counsel for Appellants :
Mr. Asim Sarode, Advocate for Applicant Counsel for Respondents :
Mr. Arvind S. Avhad & Mr. A.K. Srivastava, Advocates for Respondent No.1.
Mr. Kailash Pandey, Mr. Ranjeet Singh, and Mr. Pravesh Thakur, Advocates for Respondent No.3 Mr. Mukesh Verma & Mr. Ashi Chauhan, Advocates for Respondent No.4 ORDER/JUDGMENT PRESENT :
Hon'ble Mr. Justice Swatanter Kumar (Chairperson) Hon'ble Mr. Justice U.D. Salvi (Judicial Member) Hon'ble Dr. D.K. Agrawal (Expert Member) Hon'ble Prof. A.R. Yousuf (Expert Member) Hon'ble Dr. R.C.Trivedi (Expert Member) Dated : July 11, 2013 JUSTICE SWATANTER KUMAR, (CHAIRPERSON)
1. The applicant and others, social activists, challenge the construction of the road from Vitthalwadi to National Highway-4 2 bypass, which is being constructed under the Draft Development Plan on the ground that the Draft Development Plan has not been approved by the State Government, no permission from Irrigation Department has been taken and the road touches the Vitthalwadi Temple and its surrounding areas which are Grade I Heritage Buildings and even permission from Archaeological Department has not been taken. This construction, according to the applicants, is bound to cause massive environmental, ecological and social damage. The construction of the road is being carried out in the river bed i.e. within the "blue line". Thus, the applicants pray that the on-going construction work should be stopped immediately and the respondents; any other person or agencies should be restrained from dumping any debris or construction material; the entire debris and soil dumping should be directed to be removed and finally the boundaries of the river should be expressly defined and marked by the local government in conjunction with Irrigation Department and the Archaeological Department.
2. We may now notice the facts in brief that give rise to the institution of this application. As already stated, the applicants claim to be socially motivated persons who have studied the project of construction of the road from Vitthalwadi to National Highway-4 bypass. As a result of this study, according to the applicants, the Pune Municipal Corporation (for short 'Corporation') extended its boundary in the year 1997. In this process, for expansion, 23 villages were included in the new limits of the said Corporation. Vitthalwadi is one of such villages. The Development Plan of Pune 3 city was finalised and approved by the State Government in the year 1987, but these 23 villages were not part of the approved Development Plan. A fresh draft plan was prepared for the said 23 villages. The draft development plan was published under Section 28(4) of the Maharashtra Regional and Town Planning Act (for short 'MRTP Act') and was submitted to the State Government in terms of Section 30 of the MRTP Act. The location where the road is being constructed comes under the draft Development Plan. The proposed construction is that of 30 metre wide road connecting Vitthalwadi to National Highway-4 bypass exactly in Mutha river bed. At a distance of 7 km from the construction site is a dam upstream. No sanction of the Government, more particularly of Irrigation Department, had been obtained prior to starting of the construction of the said road. The construction is not even in accordance with the Draft Development Plan. In modification No.4.06 of the Draft Development Plan, it is clearly stated that "10 m. green belt and 30 m. road have been deleted and only 24 m. wide road is proposed with 36 m. river protection belt" (for short 'RPB'). It is the allegation of the applicants that in the Draft Development Plan, the width is shown as 24 m. whereas the actual width of the road being constructed is 30 m. showing clearly that the road is being constructed with 6 m. more width which is in violation of the Draft Development Plan. There is a reservation of 36 m. wide RPB between the proposed road and the perennial flow of the river. This has been shown in green colour in the Draft Development Plan but in actual situation at the site, the respondents have shifted the road to 4 the RPB while it was expected to be constructed beyond the RPB. Another specific averment has been made by the applicants that on both sides of the river, there is a low lying part of the basin shaped river bed on both sides which is actually a submersible land that submerges when discharge is released from Khadakwasla Dam, which is a dam that provides water to the entire city of Pune. The very purpose of RPB reservation is to accommodate the discharge from the dam and to protect the city from floods. This purpose gets completely defeated by dumping debris on the low lying portion of the river bed to elevate the level of the road. The respondents, according to the applicants, are constructing the road within the Mutha river bed itself and have elevated the level of the road by 20 ft. to 30 ft. by way of illegal dumping rubble and earth and tens of thousands of truckloads of debris and soil are dumped right in the river bed for elevating the road. As a result, there has been reduction of the width of the river Mutha by about 55% and it is bound to result in increased floods in the surrounding densely populated residential areas during rainy season. The proposed road shown in Exh.B.20, is stated to be touching Vitthalwadi Temple and the surrounding structures are a few hundred years old ancient structures built during Peshwa era and have been classified as Grade I Heritage Buildings. It was imperative for the respondents to obtain clearance from the Archaeological Department before commencing the construction but no such permission/approval was sought. Irrigation Department of the State of Maharashtra have also not granted any permission to the respondents to construct the 5 said road. In fact, the applicant No.1 had made an application on 20th March, 2012 under the provisions of the RTI Act and collected information from the Dy. Superintending Engineer, Pune Irrigation Circle, who informed that construction of the road along Mutha river from Vitthalwadi to National Highway No.4 was under progress and that Irrigation Department had not given any approval. This shows clear violation of law. According to the applicants, the cross sectional drawing of Mutha river bed, prepared by the Corporation, Respondent No.1, itself shows the possible damage to the river flow. According to the analysis of the cross section of Mutha river bed, there is a reduction in the width of the river from 291 m. to 131 m. i.e. by 55%, which certainly reduces the water carrying capacity of the river drastically and ultimately raises flood levels very steeply during discharge from Khadakwasla dam in rainy season. Further, it is the case of the applicants that during the rainy season in 2011, the flood water also flowed beyond the road under construction and this clearly shows that the road is not beyond the river bed but is well within the river bed i.e. on submersible land strangulating Mutha river. The applicants claim to be citizens not opposed to development of Pune city, suggested that it would have been much wiser and prudent on the part of the respondent if it had planned the road elevated on RCC pillars instead of constructing it by earth filling. This would have certainly minimised the damage that has already occurred to the river cross section, water carrying capacity of the river and riparian zone but still would have facilitated the traffic. Thus there would be the least risk of flooding 6 the residential area on either side of the river. The storm water that flows to Mutha river from hilly area would have flown to the river with minimal obstruction thereby reducing the risk of flooding the residential localities. It is noticed that the entire storm water from the hills, parallel to the river, flows to Mutha river from the right side through the densely populated residential areas. Thus, the construction of the road is bound to form a continuous obstruction/barrier to the natural flow of the river, thereby increasing storm water stagnation in the thickly populated residential areas. The applicants, with some emphasis, have raised two specific grounds - one that the road is being constructed by the respondents into the river bed (i.e. blue line) and secondly huge dumping of debris have caused destruction of the riparian zone along the Mutha river. Both these cause environmental, ecological and social damages, and therefore, the applicants claimed the prayed reliefs.
3. We have now to examine the response of various respondents in the pleaded case of the applicant. Respondent No. 4 the Maharashtra Pollution Control Board (for short 'MPCB'), has filed a very short reply primarily stating that most of the pleaded facts and grounds are required to be answered by other respondents and particularly by Respondent No. 1 and Respondent No. 3. However, it is stated that the board is granting consent to establish and consent to operate the project which are engaged in industrial operation, processing or establishment which are likely to discharge sewage of affluent and establish and operate an 7 industrial plant as defined under the provisions of Air (Prevention and Control of Pollution) Act, 1981.
4. This project of constructing a road connecting Vitthalwadi and NH-4 bypass is an activity for which consent is needed. Respondent No. 1 has not applied for grant of such a consent. The probable reason stated is non-generation of domestic and industrial effluents, emission of air pollutants from the Industrial plant and non-requirement of Environmental Clearance (for short 'EC'). It is averred that the EIA Notification, 2006 (for short 'the notification') the construction of highway including construction of National Highway and expansion of National Highway greater than 30 km with additional right of width within 20 m involving land acquisition and passing more than one State requires EC from the MoEF. Thus, such State highway construction and expansion require EC from the SEIAA. The project is not covered under the River Valley Project. The Board in any case is not an appropriate/expert body to carry out such assessment and grant such clearance.
5. It is the case of Respondent No.4 that with an intention to know the exact situation at the site, the field officer of Respondent No.4 visited the site in question on 27th January, 2013. During the visit, it was observed by him that the construction of the road was in progress and nearly 40% of the work had been completed. However, in view of the orders of the Tribunal and the fact that permission of Irrigation Department had not been obtained, the construction work of the road had been stopped. The field officer also noticed that the construction of the road was being carried out 8 by elevating the level by way of dumping rubble and earth. However, an attempt was made to clarify at a subsequent stage that no rubble, earth or any other polluting matter was being dumped at the river bed. Keeping in view this situation, Respondent No.4 had called for information and details of construction plan from Respondent No.1. It may also be noticed here that the Board had carried out ambient air quality monitoring tests at the spots decided by the Board for the project in question. The results of such analysis are at Annexure D to the reply filed by the Board. From these results, it appears that the ambient air quality was in excess of specified parameters.
6. While averring that the project may not require EC, it is stated that, it is for the MoEF, Government of India, to take final decision in that regard. The stand of Respondent No. 3, the Irrigation Department, Government of Maharashtra, according to its reply, is that they have not given any permission for construction of the road in Mutha River bed connecting Vitthalwadi and NH-4 bypass. It is averred that 24 m wide road has been constructed in private land but not in river bed. The proposed connecting road is constructed on the right side of the river in the low lying area. The ground level on the right side of the river is low as compared to the left of the river and flood water spreads primarily on the right side of the river. The flood discharge of Khadakwala Dam is 97980 cusecs and considering free catchment area on downstream of Khadakwala Dam, the estimated flood would be 1 lakh cusecs. As per cross section of river side provided by Pune Municipal 9 Corporation, the estimated peak flood will pass with high flood level of 554.90m to 554.70m. The cross section area of the river would be reduced by the said construction as there would be dumping of debris and earth.
7. The Additional City Engineer had applied for the issue of NOC regarding construction of road vide letter dated 23th September, 2010, and after getting information for these proposals, the Divisional office had recommended to the Superintendent Engineer, Pune Irrigation Department, vide letter dated 22th March, 2011 for getting the permission. But according to this affidavit dated 4th March, 2013, neither permission had been granted nor any NOC issued by Respondent No. 3 in favour of Respondent No.1 for carrying out the project.
8. Respondent No. 1 stated that permission was likely to be granted and in fact it was in the process of being granted for construction of the road by Respondent No. 3. Finally, the Chief Engineer filed an additional affidavit on 23rd April, 2013, specifically averring that both the certificates, NOC for construction of the flood protecting bund and road from Vitthalwadi to NH-4 bypass were issued in favour of Municipal Corporation, Pune, after approval from the Chief Engineer. One of the controversies raised was that a Government circular dated 2nd September, 1989, was issued by the Deputy Secretary, Government of Maharashtra, that in such matter NOC cannot be issued for construction on the blue line/river bed. Certain clarification with regard to this circular was put forward. On 15th April, 2013, Respondent No. 3 had issued NOC for the 10 project in favour of Respondent No. 1 which is annexed as R-1 in the affidavit dated 23rd April, 2013. This was a conditional NOC dated 15th April, 2013 issued by the Executive Engineer, Khadakwasla Irrigation Division, Pune, to the Additional City Engineer (Road), Pune Municipal Corporation, Pune, which can be reproduced at this stage.
"Your office has requested to issue "No Objection Certificate" from the Irrigation Department, for proposed road along the river Mutha from Vittalwadi to Pune-Mumbai Bypass (NH 4). This office has asked for relevant information regarding details of construction of road, formation level of road in relevance to blue and red line, effect of road on carrying capacity of river and ownership status of land on the alignment of proposed road etc. Final compliance for the above points is submitted by your office vide letter reference No.3 to this office. As per data submitted by your office, this road through private land along the river bank.
Hence "No Objection Certificate" is issued for construction of the road from Vitthalwadi to Pune-Mumbai bypass (NH 4) along the river bank under compliance of following conditions:
1. Pune Municipal Corporation shall ensure that the debris / excavated materials from excavation of retaining wall shall be removed from the river bed and ensure that no further debris on the other bank of river is dumped in future.
2. The reduction in cross sectional area of river for 25 years flood plain zone may be compensated by providing necessary arrangements and hydraulically restored.
3. Pune Municipal Corporation shall protect other bank of the river from erosion during floods by adopting appropriate river protection measures and also provide river training measures to ensure the direction of river course shall not change for which necessary hydraulic study from Central Water & Power Station, Pune shall be done.
4. All the natural nallas and drainages behind road embankment must be properly diverted to river to avoid inundation in adjacent areas.
5. It is seen that the width of river bed and cross section of river is just sufficient to carry the flood discharge hence construction of road length between Ch. 1/1940 to 2/347 should be constructed with road on columns. For this length of road embankment and retaining wall 11 should not be constructed."
9. At this stage, we may also notice that when the matter was being heard on 14th February, 2013, the counsel for the applicant had placed on record a copy of the letter dated 15th May, 2012 issued by Assistant Executive Engineer, Pune Irrigation Circle, Pune, stating that no permission from the Irrigation Department had been obtained. Even, the Chief Engineer of the Respondent No. 3, who was present before the Tribunal on that date of hearing also stated that they have not granted any permission to Respondent No. 1 to construct the road in question. Again vide order dated 9th April, 2013, we had directed the Chief Engineer of Respondent No. 3 to be present in Court to clearly put forward the stand of the Department.
10. Respondent No. 1 has filed an independent reply. It is the case of Respondent No. 1 that in the revised Development Plan for Pune Municipal Corporation, old boundaries had been sanctioned by the Urban Development Department vide letter dated 5th January, 1987. The inclusion of 38 villages has been incorporated in the Pune Municipal Corporation limits by the same department vide their resolution dated 19th September, 1997. However, the State Government of Maharashtra issued another resolution deleting 15 villages in whole and 5 villages in part from Pune Municipal Corporation boundary vide resolution dated 17th November, 2007. According to this respondent, the road from Vitthalwadi to NH-4 bypass is being constructed as per development plan approved by the Government of Maharashtra vide its resolution dated 15th May, 2008. The width of the road is 24 m 12 to 18 m and not 30 m as stated by the applicant. It is claimed that construction of the road had been undertaken only after taking into consideration the river ecosystem by not affecting river bed adversely. The road from Vitthalwadi to NH-4 bypass is being constructed to a width of 24 m and beyond the river protection belt as per sanctioned Development Plan. It is averred that while construction of the road, the Municipal Corporation is also constructing RCC protection wall on both sides of the proposed road to prevent flooding of the low lying area adjacent to the proposed road and there is no permanent dumping of debris in the river belt. The excavated material is proposed to be lifted from the site during the course of construction. As a result of construction of the road, there shall be no reduction in the width of river bed and the averments made by the applicant are therefore stated to be incorrect.
11. The Pune Municipal Corporation obtained NOC from the Archaeological Department vide letter dated 15th April, 2011. In that letter, it was stated that the NOC for construction of the work had been given subject to the condition that PMC would be responsible for safe relocation of the Archaeological remains and adequate care would be taken to ensure that any kind of damage would not be caused to the Vitthal Mandir. PMC also decided to connect the proposed Vitthalwadi to NH 4 to Sinhagad Road at a location before the Vitthalwadi temple complex, as per the sanctioned Development Plan as alternative route to the alignment originally planned from existing bridge to Sinhagad Road. Thus the construction of the road 13 would not have any effect on Vitthalwadi temple complex or area adjacent to the complex.
12. Reference is also made to the letter dated 20th March, 2012 of the Assistant Superintending Engineer, Irrigation Circle, Pune, wherein it has been stated that after study of the cross section of the river, duly prepared by Pune Municipal Corporation (for short 'PMC'), the said cross section would be capable to accommodate the discharge of flood control line. On certain assumptions, the letter also recorded that the road constructed, using the silt from the river bed, passes mostly through the private owner's land. The PMC had submitted the land acquisition proposal of the said land to the office of the Land Acquisition Officer No.1, Pune. Considering the above, it is proved that most of the land area under the said filling was outside the authoritative river bed area. Significantly, it was also noticed in this letter that till date the permission had not been given by Irrigation Department. The work of the said road was still in progress by PMC.
13. It was also averred that the spread of flood water in the low lying area cannot be termed as river bed or width of the river itself. During the rainy season, the storm water discharged from various natural streams cannot find its way to the river when the river is flowing in high discharge level, which is normally observed at several locations at the junction of two or more rivers, particularly during monsoons. It is the case of Respondent No.1 with some emphasis that construction of an elevated road on pillars and beyond the river bed would involve unnecessary and extraordinary 14 high expenditure to Respondent No.1, which would ultimately be a liability on public exchequer. Construction of the road would help in overcoming problem of the suburban area beyond the proposed road. Construction of the road does not give rise to the issues raised by the applicant, like environmental, ecological and that of social damage. According to Respondent No.1, the road would also significantly help in reducing traffic load on Sinhagad Road and would save time and fuel of the population located between the river and Sinhagad Road. It is expected that BRT Bridge, once implemented on Sinhagad Road shall raise public transport commuting from 8-9% to 32-35% bringing change in life style and commuting pattern of the citizens.
14. This Respondent thus has prayed that the project may be continued as delay in completion of the project will have serious financial repercussions.
15. The applicant during the course of the hearing had filed a rejoinder to the reply filed by different respondents, more particularly Respondent No. 1. In this rejoinder, it was averred that there was complete prohibition on carrying out any activity in the flood line area as it is a prohibited zone. It was also averred that by the proposed cross section of the river, the elevated road during flood is likely to cause serious damage to the interest of the people and is also likely to reduce the width of the river. The width of the river would likely be reduced at some sections by 55%. It was reiterated that the Irrigation Department did not grant permission to Respondent No. 1. In its letter dated 20th March, 2012, it has 15 specifically stated that work of the road from Vitthalwadi to NH-4 along the Mutha Road was being done by PMC and much of the portion of the said road covers the privately owned land and did not come inside the river bed. The said road had not been approved by Irrigation Department. To this rejoinder, the Respondent No. 1 was directed to file additional reply vide our order dated 21st March, 2013. This additional reply was filed by Respondent No. 1 on 3rd April, 2013.
16. Besides reiterating the facts already stated in its pleadings, Respondent No.1, in its reply/affidavit to the rejoinder, has emphasised that the road is being constructed on a private land and not on the river bed. Further, the low lying area will get submerged in the rainy season or during floods. The area near the river bank gets submerged due to rains in the catchment area as well as due to natural stream on the Sinhagad Road side that joins the river through the bridge already constructed on the proposed road. The cross section area of the river after construction of the proposed road on river bank is adequate to accommodate the flood discharge of 100000 cusecs (red line). According to the respondent, Irrigation Department has clearly supported this fact that the maximum flood discharge at red line can be accommodated in the cross section of the river. The drainage system is ready for flow of storm water due to removal of silt and there is increase in the depth of the river bed by 1.5 to 2.0 metres along with width relatively. Hence the river flow capacity has been increased and the averment made to the contrary by the applicant is incorrect. The respondents 16 also claim that they have increased the cross sectional area as well as water carrying capacity of the river. The modified cross section of the river can accommodate the water during the floods. Besides all this, the road is stated to be constructed in the larger public interest and for public convenience at a low cost. The grievance of the applicant is that Respondent No.1 has started construction of the 30-metre wide and 2.35 km. long road in the river bed connecting Vitthalwadi to NH-4 bypass and has resultantly raised the following apprehensions to the environment and ecology of the area in question: Shifting of pollution from city to river; Massive dumping of construction material will cause hindrance in flow of the river leading to deterioration of environment, loss of property and human life; Violation of development Plan; Obstruction in natural storm water flow leading to flash floods; Environment and ecological damages; and Destruction of Grade-I Heritage. Besides above, the applicant also raised the grievance that No Objection Certificate (for short the 'NOC') from Irrigation Department as well as the Archaeological Survey of India had not been taken and the project was being carried out with ulterior motive and particularly with the intention to hurt the environment under the garb of public interest. We have already noticed that these apprehensions are being refuted by the respondent who claimed that all necessary permissions were received; they were not required to take environmental clearance either from the Ministry of Environment and Forests (for short 'MoEF') or the State Environmental Impact Assessment Authority (for short 'SEIAA') of Maharashtra. The 17 project is intended to (i) serve a public purpose of reducing traffic congestion on Sinhagad Road, (ii) save the Dam, (iii) reduce fuel consumption, and (iv) consequently reduce vehicular pollution. In nutshell, it is going to serve a public purpose. By providing an alternative road, the traffic on the existing road shall be reduced significantly. Speed, a primary element in traffic engineering, has a wide range of environmental, economic and safety consequences. Improved safety, fuel consumption, pollution emission and associated vehicular related cost component would be major considerations for environmental and economic considerations of the road projects. The environment and ecology at large shall be benefited by construction of this road due to reduced pollution level in the city of Pune. The deficiencies, discrepancies and disadvantages of this road project have been highlighted by the applicant, while on the other its economic and environmental advantages and the continuation of the project in accordance with law is emphasised by the respondent. But even then, the expected economic and environmental benefits need to be considered against the expected environmental damage apprehended by the applicant and that is where the need for deriving a balance arises. The Tribunal is, therefore, expected to consider whether it is possible to derive a balance between the apprehended environmental and ecological damage on the one hand and the need for construction of the road with its economic advantages on the other. Answer to this question would depend on a number of factors which we shall now proceed to discuss. First and the foremost, we have to examine 18 whether Respondent No.1 was required to take environmental clearance from the Central Government (MoEF) or the State Government (SEIAA). It cannot be disputed if the Respondent was required to take environmental clearance from any of these authorities, then the project could not commence without grant of such clearances. Another undisputed fact is that in the present case, admittedly Respondent No.1 has not taken clearance from any of the referred authorities. Thus, if this question is answered in the affirmative, then the application of the applicant must succeed. If it is answered in the negative, then we must proceed to examine other aspects of this case. Regulation 2 of EIA Notification of 2006 makes it obligatory upon the respondent to seek environmental clearance from either the Central Government (MoEF) if the project falls under category 'A' and from the SEIAA if it falls under category 'B'. The Schedule to the said notification refers to paragraphs 2 and 7 of the notification for enlisting the projects or activities requiring prior environmental clearance. The entry 7(f) deals with the projects relating to highways. The other entry reads as under:
Project or Category with threshold limit Conditions
Activity if any
A B
Mining, extraction of natural resources and power generation (for a specified production capacity (1) (2) (3) (4) (5) 7(f) Highways i) New National i) New State General High High ways; Condition 19 ways; and and shall
ii) Expansion of ii)Expansion apply National High ways of National/ greater than 30 State KM, Highways involving additional greater right of way greater than 30 km than 20m involving involving land acquisition additional and right of way passing through greater than more 20m than one State. involving land acquisition.
17. It is obvious that the project, being in a State, would fall under category 'B' if it relates to a State Highway. It is not averred by the applicant that the construction of this road is a part of the State Highway. It is clear from the record that the project in question relates to 2.3 km long of 24 m. wide road from Vitthalwadi to NH-4 bypass. In other words, it is just a local road connecting two points while the one end meets the bypass of the State Highway. 'Highway' under the Control of National Highways (Land and Traffic) Act, 2002 means a National Highway declared as such under Section 2 of the National Highways Act, 1956 and includes any Expressway or Express Highway vested in the Central 20 Government, whether surfaced or unsurfaced, and also includes (i) all lands appurtenant to the Highway, whether demarcated or not, acquired for the purpose of the Highway or transferred for such purpose by the State Government to the Central Government; (ii) all bridges, culverts, tunnels, causeways, carriageways, etc. as stated in that definition. The State Highways on that analogy would mean all the State Highways which are so declared in accordance with law. No records have been placed before us to show that this road has been declared as a State Highway in terms of any law in force. 'Road' simpliciter would mean a way or a passage.
18. From the records before the Tribunal, it is clear that the road project is not a State Highway in fact and in law. As already noticed, it is not even the case of the applicant that it is a State Highway. This being the undisputed position, the question of seeking environmental clearance from SEIAA in terms of Regulation 2 read with Entry 7(f) of the Schedule to Notification of 2006 would not arise.
19. The other objection raised by the applicant is with regard to non-grant of NOC for construction of the proposed road by the Archaeology and Museum Directorate of Maharashtra Government. According to the applicant, this permission is essential for the reason that Vitthalwadi temple and its surrounding structures are ancient and protected monuments and the grant of permission is a sine qua non for commencement of the project work. It is undisputed that Vitthalwadi temple was constructed during Peshwa era and is a protected monument. Further, it is not disputed that 21 the project in question is in a very close vicinity to this monument, and therefore, it requires clearance of the Archaeology Department. On 6th December, 2010, Respondent No.1 approached the Archaeology Department for grant of an NOC. After raising certain queries, finally, vide their letter dated 15th April, 2011, the Directorate of Archaeology and Museums, Maharashtra Government, granted conditional permission for taking up construction of the road as per the project. The condition imposed was that it should protect the old remains and care to be taken not to damage Vitthalwadi temple while widening the road, which shall be the responsibility of Respondent No.1. In the present application, there is no challenge before us to the grant of such NOC. Once there is no challenge to the permission dated 15th April, 2011, there is no need for us to go behind such grant of permission but certainly the Tribunal will have to ensure that Respondent No.1 strictly adheres to the conditions imposed by the said Department in its letter dated 15th April, 2011. Except to this extent, we need not deliberate on this issue any further. In the facts of the case, the contention raised by the applicant is without merits.
20. Now we shall deal with the next contention raised on behalf of the applicant that Irrigation Department has not granted any permission to Respondent No.1 to carry out the road project at all and in any case on the river bed or the blue line area. Further, the contention is that even if such permission has been granted at any subsequent stage to the filing of the present application, even then it has not been granted by the competent authority, as in 22 terms of the circular dated 21st September, 1989, issued by the State of Maharashtra, the construction below red line in the river bed is prohibited.
21. This contention of the applicant can safely be dissected into two parts. First relates to the factum of granting or otherwise of the permission by Irrigation Department of the State of Maharashtra, while the other relates to competence and correctness of such permission, if issued. As far as the first part-point of fact is concerned, there is no dispute that at the time of institution of the present application, no permission whatsoever had been granted by the Department of Irrigation to Respondent No.1. There also cannot be any dispute to the fact that the work of the project had been commenced by Respondent No.1 without having been granted any such permission. It is only when the counsel appearing before the Tribunal had stated that no such permission had been granted. However, during the pendency and hearing of the application, it was stated by the counsel appearing for Irrigation Department that the authorities concerned were considering the application of Respondent No.1 for grant of permission. We may notice that it was vide letter dated 23rd September, 2010 that an application had been moved for seeking permission of the Department. Vide letter dated 20th March, 2012, Irrigation Department had noticed that no permission had been given by them for the road project from Vitthalwadi to NH-4 bypass, which was in progress. Even thereafter, no permission had been granted and again vide letter dated 15 th March, 2013, Respondent No.1 had persisted with its request for 23 grant of permission for the project. Finally, permission was granted by the Executive Engineer, Khadakwasla Irrigation Division, Pune, to Respondent No.1. The NOC was conditional and we have already reproduced the same above. As the matter stood at the time of final arguments, the NOC for construction of the project was issued only on 15th April, 2013. It is not understandable as to how Respondent No.1 started the work of the project without seeking such permission when admittedly, it was mandatory for Respondent No.1 to do so.
22. Be that as it may, the fact of the matter is that as of now, Irrigation Department has granted NOC to Respondent No.1. Thus the matter has to proceed further from that stage. The latter part of the submission of the counsel for the applicant relates to non- construction in the prohibited zone and who was competent to vary the said restriction and if so, to what extent? The circular dated 21 st September, 1989 was issued by the Assistant Secretary, Irrigation Department, Government of Maharashtra. This circular related to issuance of necessary instructions in connection with demarcation of flood lines, the guidelines in respect of flood zone and respective flood lines and use of land in the flood zone in Chapter 8 of the Dam Safety Manual, 1984. This circular importantly noticed that the flood lines are of two types - blue line which prohibits the construction in an area due to probability of flood during any year; and red line shows water level upto which flood can occur during any year depending upon rainfall, but generally 1 in 100 years. The contour line deciding the boundary of prohibitive zone on both 24 banks of the river is called blue line, while the contour line deciding the boundary of restricted zone on both banks of the river is called red line. Construction of controlled nature could be done below the red line but excluding the prohibitive zone considering the flood situation in the area. The relevant part of the said circular can be referred to as follows:
"Mainly flood lines are of two types.
1) Prohibitive Flood Line: This prohibits the area from any construction due to possibility of floods any time.
2) Restrictive Flood Line: This shows the level of floods possibly once in 100 Yrs. Construction in this area should be restricted (excluding prohibited zone) considering possibilities of flood.
A) Prohibited Zone:
Main riverbed and the area on both banks required to carry the controlled discharge from dam and the flow from free catchment area below the dam should be called as "Prohibitive Zone". While deciding this, maximum flood discharge in average 25 years or one and half times the discharge of the established riverbed carrying capacity, whichever is more should be considered while finalising the riverbed and the area on its both banks as Prohibitive Zone. This zone should be left open and can be used for gardens, play grounds or light crops (only where the easement right to take such crops is established). B) Prohibitive Flood Line (Blue Line):
The level of water on banks during such floods shall be considered as Prohibitive Flood Line deciding the "Prohibitive Zone".
23. According to the applicants, on the co-joint reading of the provisions of the Manual and the circular issued by the Government, the Chief Engineer and any other officer of Irrigation Department is not vested with the powers to vary the terms of the said circular. To counter this, Respondent No.1 and the State have relied upon Appendix 42 of Maharashtra Public Works Manual, showing administrative and financial powers in terms of which the Chief Engineer possesses full powers in regard to technical sanction 25 of original works classified under all major heads. The Safety Manual, according to the respondent, is prepared for Irrigation Department for preparedness for dealing with emergency situations of the Dams and as per the circular dated 8th October, 2007 issued by Irrigation Department, Government of Maharashtra, regarding issuance of NOC for establishment of townships, it is the requirement to assess the hazardous potentiality of floods to nearby habitations in the vicinity of the river and the Chief Engineer is competent to issue NOC, who is also the Canal Officer under the Maharashtra Irrigation Act, 1976.
24. From the bare reading of the above circular dated 21st September, 1989, it is clear that the main river bed and the area on both the banks of the river required to carry the controlled discharge from the Dam and the catchment area below the Dam, which is the prohibited zone. The line deciding the boundary of this prohibited zone on both banks of the river is called the blue line. The prohibited zone requires that no construction can be raised in that area. The blue line thus is the end of that river bed upon which no construction can be permitted. This circular had been issued by the competent authority in the State Government and it admits of no delegation. Two aspects are very clear - one that the circular has been issued by the Assistant Secretary concerned on behalf of the Government without any power of delegation and secondly, the circular does not admit of any exceptions. In these circumstances, the only way to get over the restriction of the circular is that the competent authority in the Government had to withdraw or modify 26 the circular. The Chief Engineer of Irrigation Department admits the above position. However, he claims to have the authority to issue the NOC for construction of the road including the blue line on the strength of the Maharashtra Public Works Manual (Appendix 42). Vesting of financial and administrative powers for the works stated under the Maharashtra Public Works Manual is one thing and cannot be stretched to the extent of empowering the said Chief Engineer to overrule or render ineffective a circular issued by the competent authority in the State in exercise of his executive powers. The Chief Engineer is not vested with the power to vary the terms of the circular, and that too to the extent of violation. The powers stated to be vested in the Chief Engineer relate to the execution of the works that are awarded by the Department. These administrative and financial powers are, therefore, primarily intended to regulate the affairs of Irrigation Department including execution of the works awarded. We are unable to contribute to the views advanced on behalf of Irrigation Department that it had the power to render the circular dated 21st September, 1989 otiose.
25. Another facet of this aspect is that the circular had been issued by way of guidelines in respect of flood zone, respective flood line and use of land in the flood zone. It was read in conjunction with the Dam Safety Manual. It was issued with the intention to prevent heavy damage that may occur along the river due to heavy rain and flood water during monsoon. It was also to prevent undue interference with the flow of the river and the ecology of the area in question. The floods result from heavy rains or from release of water 27 from the Dam; it is stated to be so close to the site where the road was being constructed. It is to prevent damage to persons and property on the one hand and protect environment on the other. Both these purposes are being interfered with by issuance of NOC by the Chief Engineer, which apparently was not within his competence. In our considered view, it would have been appropriate for the Chief Engineer to refer the case to the Secretary concerned including the Secretary (Environment) before making his recommendations and requesting them to modify the circular accordingly. Thus, it should have been left in the wisdom and to the decision of the authorities concerned and there was no justification for the Chief Engineer to exceed his power, particularly in the manner in which it had been done in the facts of the present case. This aspect has to be examined in the light of the fact that Respondent No.1 had applied for obtaining the NOC from Irrigation Department on 23rd September, 2010. This permission was not granted until 15th April, 2013. For all this long period, Irrigation Department had taken a stand that they would not grant permission for the project in question. In fact, vide their letter dated 20th March, 2012, they had even written that no NOC had been issued by Irrigation Department and the work of the project was in progress, which obviously meant that the construction of the project was being carried out in an unauthorised and illegal manner. It is not clear why this sudden change of mind took place when the matter was pending before the Tribunal and was being vehemently argued by the parties by raising their respective 28 contentions. The cumulative effect of the above circular and the correspondence referred to above is that until 15th April, 2013, no permission had been granted by the authorities of Irrigation Department for commencement of the work of the project and the construction work being carried out by Respondent No.1 of the project in question was not in accordance with law. Ecology and Sustainable Development with reference to the facts and circumstances of the present case:
26. Despite the fact that the Chief Engineer of the Irrigation Department was not competent to negate the circular dated 21st September, 1989 issued by the State Government of Maharashtra, and had any competence to issue NOC permitting construction even on the blue line and also keeping in mind that more than 40% of the work of the project had been completed without even any permission from the Department of Irrigation and other competent authorities, still we have to examine as to whether this development (i.e. the completion of the project) should be permitted in the larger interest of development or not. If the answer to the above be in affirmative, then subject to what conditions further work of the project should be permitted. From the above facts and the records before us, it is clear that Respondent No.1 had not obtained either the SEIAA clearance or clearance from Archaeological Department. It had also not obtained NOC from Irrigation Department before it commenced the work of the project. Clearance by Archaeological Department was granted on 15th April, 2011 and NOC by Irrigation Department was given on 15th April, 2013. It is not in dispute before 29 us that more than 40% work of the project has been completed on which large public funds have been spent. The Tribunal has either to direct demolition of the road already constructed with a further direction that the project be abandoned and no further construction be carried out or to permit completion of the project subject to certain specific conditions while protecting the environmental interest to the extent possible with reference to the facts and circumstance of the present case. This is where the judicial discretion of the Tribunal is to be exercised while striking a balance between development on the one hand and environmental protection on the other. Developmental and environmental needs have to be seen in complement to each other and not in antagonistic terms. We must keep in mind that development can take place only when there is earth left for the purpose. Inclusive development would not be possible without emphasis on environmental protection. The Tribunal cannot overlook the fact that the world is facing the harmful consequences of global warming and depletion of resources. Environmental conservation has become a topic of global significance. Such matters are of paramount relevance in a developing economy like ours as environmental degradation drastically offsets improvements achieved for economic prosperity, apart from having serious implications of distributive justice. One school of thought states that it is not about environment versus economy, not a trade-off between unemployment and pollution and certainly not about picking up one over the other. We need both the environment and 30 the economy and such conditions must be created that development takes place without affecting and causing irretrievable damage to the environment. Both must thrive.
27. In Susetha v. State of Tamil Nadu AIR 2006 SC 2893, the Supreme Court observed that the doctrine of sustainable development is not an empty slogan. It is required to be implemented taking the pragmatic view and not on ipse dixit of the Court. Following the same principle, it cannot more so be applied on an administrative authority or a Corporation vested with the statutory obligation of providing environmental protection to the residents under its jurisdiction. Sustainable development means that the richness of the earth's bio-diversity would be conserved for future generations by greatly slowing or if possible halting extinctions, habitat and ecosystem destruction, and also by not risking significant alterations of the global environment that might - by an increase in sea level or changing rainfall and vegetation patterns or increasing ultraviolet radiation - alter the opportunities available for future generations. Sustainable development has been defined in many ways but the most frequently quoted definition is from the Brundtland Report which states as follows:
"Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:
The concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and The idea of limitations imposed by the state of technology and social organisation on the environment's ability to meet present and future needs."31
28. The concept of sustainable development is rooted in this sort of systematic thinking. It helps us to understand ourselves and our world. The problems we face are complex and serious - and we can't address them in the same way we created them.
29. While applying the concept of sustainable development, one has to keep in mind the "principle of proportionality based on the concept of balance. It is an exercise in which courts or tribunals have to balance the priorities of development on the one hand and environmental protection on the other. So sustainable development should also mean the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable person's test. (Refer Research Foundation for Science and Technology and Natural Resource Policy v. Union of India (2007) 9 SCR 906; Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664; Chairman Barton: The Status of the Precautionary Principle in Australia (Vol.22) (1998) (Harv. Envtt. Law Review, p. 509 at p.549- A) as in A.P. Pollution Control Board v. Prof. M.V. Nayuder (1999) 2 SCC 718; and M.C. Mehta v. Union of India, AIR 2004 SC 4016. At this stage, we may usefully refer to a very recent judgment of the Supreme Court in the case of G. Sundarrjan v. Union of India & Ors. Civil Appeal No. 4440 of 2013 (Arising out of S.L.P. (C) No. 27335 of 2012), Civil Appeal No. 4441 of 2013 (Arising out of S.L.P. (C) No. 27813 of 2012), Civil Appeal No. 4442 of 2013 (Arising out of S.L.P. 32 (C) No. 29121 of 2012) and Civil Appeal No. 4443 of 2003 (Arising out of S.L.P. (C) No. 32013 of 2012) decided on 6th May, 2013 The Court, while referring to the principles of balance inbuilt in the concept of sustainable development, elaborated the principles as follows:
"228. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasized on striking a balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society. But, a pregnant one, the present case really does not fall within the four corners of that principle. It is not a case of the land oustees. It is not a case of "some inconvenience". It is not comparable to the loss caused to property. I have already emphasized upon the concept of living with the borrowed time of the future generation which essentially means not to ignore the inter-generational interests. Needless to emphasize, the dire need of the present society has to be treated with urgency, but, the said urgency cannot be conferred with absolute supremacy over life. Ouster from land or deprivation of some benefit of different nature relatively would come within the compartment of smaller public interest or certain inconveniences. But when it touches the very atom of life, which is the dearest and noblest possession of every person, it becomes the obligation of the constitutional courts to see how the delicate balance has been struck and can remain in a continuum in a sustained position. To elaborate, unless adequate care, caution and monitoring at every stage is done and there is constant vigil, life of "some" can be in danger. That will be totally shattering of the constitutional guarantee enshrined under Article 21 of the Constitution."
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30. The above stated principles illustratively demonstrate that judicial balance of both these concepts would not permit undue significance being attached to either of them at the cost of the other. The concept of sustainable development in essence admits to balance the scale between the quantity of development and the quality of environment. The earlier school of thought was that development and ecology are opposed to each other but with the passage of time and development of law, this concept has undergone a tremendous change and is no longer acceptable and now prevails the doctrine of 'sustainable development'. The principle of sustainable development takes within its ambit the application of the 'principle of proportionality' and the 'precautionary principle'. In other words, one must, while permitting development, not only ensure that no substantial damage is caused to the environment but also take such preventive measures which would ensure no irretrievable damage to the environment even in future on the premise on intergenerational equity. All these principles have to be examined and applied on the touch stone of "reasonable person's test''. As already indicated, we are a developing country, and therefore, have to take somewhat liberal approach towards development but certainly not by compromising the environmental interest. The precautionary principle can be explained to say that it contemplates that an activity which poses danger and threat to environment is to be prevented. Prevention is better than cure. It means that the State Governments and the local authorities are supposed to anticipate 34 and then prevent the causes of environmental degradation. The likelihood of danger to the environment has to be based upon scientific information, data available and analysis of risks. Ecological impact should be given paramount consideration and it is more so when resources are non-renewable or where the end result would be irreversible. The principle of precaution involves anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. Again it is based on scientific uncertainty.
31. The Supreme Court had the occasion to explain the principle of precaution and the burden of proof in environmental cases. In some elaboration, in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718, after discussing various judgments, the Supreme Court concluded that:
"35. We shall next elaborate the new concept of burden of proof referred to in the Vellore case AIR 1996 SC 2715. In that case, Kuldip Singh, J. stated as follows: The 'onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.
36. It is to be noticed that while the inadequacies of science have led to the 'precautionary principle', the said 'precautionary principle' in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, is placed on those who want to change the status quo (Wynne, Uncertainty and Environmental Learning, 2 Global Envtl. Change 111 (1992) at p. 123). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the changes would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less-polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. (See James M. Olson, Shifting the Burden 35 of Proof, 20 Envtl. Law p.891 at 898 (1990). (Quoted in Vol. 22 (1998) Harv. Env. Law Review p. 509 at 519, 550).
37. The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr. Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3.4,1998, para 61).
38. It is also explained that if the environmental risks being run by regulatory inaction are in some way "ascertain but non-negligible", then regulatory action is justified.. This will lead to the question as to what is the non-negligible risk'. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a 'reasonable ecological or medical concern. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environmental protection. Such a presumption has been applied in Ashburton Acclimatisation Society v. Federated Fanners of New Zealand [1988] 1 NZLR 78. The required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable persons' test. (See Precautionary Principle in Australia by Charmian Barton) (Vol. 22) (1988) Harv. Env. L. Rev. 509 at 549).
Brief Survey of Judicial and technical inputs in environmental appellate authorities/tribunals:
39. We propose to briefly examine the deficiencies in the Judicial and technical inputs in the appellate system under some of our existing environmental laws."
32. There can be scientific inadequacies in determining with exactitude the consequences of the environmental damage. In some cases, it may also be applicable to anticipate damage to environment while taking the aid of precautionary or preventive principles. Environmental protection and right to clean environment has found due recognition in terms of Article 51A and Article 21 of the Constitution of India. This places greater 36 obligation upon the Tribunal to examine the sustainable and planned development with a greater caution and with special protection to the environment. A Bench of this Tribunal, in case of Suresh Bhai Keshav Bhai Wagankar v. State of Gujarat, in application No.65 of 2012 decided on 9th May, 2013, while referring to the principles stated by the Supreme Court in the case of Research Foundation for Science and Technology and Natural Resource Policy v. Union of India & Anr. (2005) 10 SCC 510, explained the precautionary principle in the context of different facts and circumstances and held that the precautionary principle of sustainable development provides for taking protection against specific environmental hazards by avoiding or reducing environmental risks before specific harms are experienced.
33. Another doctrine that needs to be noticed at this stage is the doctrine of public trust. This doctrine is more an affirmation of State power to creation of public property for public purpose. 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.
34. Now let us revert to the facts of the present case. 2.35 km long road is sought to be constructed with the width of 24 metres, connecting Vitthalwadi to NH-4 bypass. This road is being constructed certainly at some portion in the river bed i.e. the 37 prohibited zone (blue line). So far as the construction of the bridge touching or beyond the red line is concerned, there cannot be any serious objection to its construction. However, when it touches the blue line or falls in the prohibitory zone i.e. the river bed, even inside the blue line, serious objections have been raised by the applicant in this regard. Annexure 2/1 filed by Respondent No.3 is the corrected map placed on record. It shows the flow of the river, river bed, blue line and the red line. Between the blue line and the red line, there are structures in existence like Atharva Terace Apartments, River View Residency Apartments on the one hand while Puja Park, Nimraj Nagar, Gayatri, Radhakrishna, Kudale Patil, Anand Park, Jal Tarang, Shrm Saffale, Jal Vihar, Jal Pugan, Sham Sundar Apartments on the other, which are structures on or even inside the blue line. Major part of the high rise road is being constructed inside the blue line and to a large extent in the river bed. During the course of hearing, we were informed that the Sham Sundar Apartments/structure has been issued notice by Respondent No.1 for demolition on certain grounds.
35. The red line, as reflected in this Annexure is the highest flood level 1 in 25 years. Between the red and the blue lines, various structures belonging to different societies have been raised. Alignment of the high rise road apparently appears to be in violation of the circular and is an apparent infringement of environment and ecology. Construction of the high rise road without elevated pillars in the river bed is bound to cause drastic degradation of the environment as well as obstruct the natural 38 flow of the river, particularly during monsoons. The alignment of the existing road has been shown in yellow colour which ends at Slab Drain on the one side and near the boundary wall at point 0+400. The high rise road from 0+450 point to 1+750 point is totally aligned in the river bed and much inside the blue line. Of course, the width of the road is 25 metres, as reflected in Annexure 2/1, filed by Respondent No.3. If the high rise road on the river bed is constructed entirely or even on a major part thereof by concrete and not on elevated pillars, it is bound to result in serious environmental disadvantages like :
(a) Narrow river passage/flood plain which would obviously result in adversely affecting the civilisation during floods in the river.
(b) Obstruction in flow of storm water/rainy water from drains/nullahs and the flow shall enter the other side of the proposed elevated road, thereby cause flooding in the area.
(c) Insufficiency of cross drainage at appropriate locations.
(d) Dredging of even two km. in the river will not protect floods and damage to the ecology as it would become a pool of water unless or until a proper gradient in downstream is provided.
36. Besides this, it is very important to avoid environmental damage and in the interest of ecology, flood plains are maintained properly. As the flood plains provide important ecological services like ensuring flow in streams for most of the year through modulation of the river-discharge by conserving huge flow of water 39 derived from peak flow and storm run off during the rainy season and releasing it gradually; recharge the ground water and improve its quality, besides flood plain produce resources like fodder, fuel and timber. Also these provide breeding and feeding ground for fish, reptiles, amphibians, birds and other living creatures in addition to improving water quality through retention and transformation of nutrients and other chemicals. These services or benefits would be adversely affected by any encroachment of the flood plains. In the present case, the total flood plain proposed to be encroached is 2.35 km.
37. These, amongst others, are a few disadvantages of the project in question besides there being logistic deficiencies like lack of permission or grant of improper permission. The need for the project is sought to be justified on the ground of larger public interest i.e. providing an alternative route to the commuters as well as to reduce vehicular pollution. It is expected to solve public transportation problem of about 5 lakh citizens who rely on the Sinhagad Road, as their main connectivity by the arterial road to the city. It is likely to reduce travel time as well as pollution level. On the contrary, the applicant's main contention is that besides causing degradation of the environment, the intention of Respondent No.1 is to help the property grabbers unauthorisedly by reclaiming the land, falling even within the red/blue line and to give them undue advantage. In fact, the real intention of the respondent is to construct the road by compacting and earth filling and to facilitate selected private land owners to reclaim the 40 river bed up to the road by converting no development zone inside the flood plain into residential zone. Of course, this allegation has been refuted by Respondent No.1. It is also argued on behalf of Respondent No.1 that raising construction on elevated pillars would prove much more expensive than its construction by compacting and earth filling. This argument does not impress us. If the Corporation-authorities have taken a decision to take up the project in public interest, then it must also bear its cost and higher cost, if necessary and also unavoidable in the larger environmental interest. The authorities cannot be permitted to cause irreversible damage to the environment and ecology of the area and even expose the inhabitants of the vicinity to undue flood risks on the ground that the project is being taken up in public interest merely for providing an alternative road and for reducing the vehicular pollution. Firstly, Respondent No.1 has not placed any scientific data or analysis on record before us in support of its contention, even for the sake of arguments, that there would be reduction in environmental pollution and great convenience will accrue to the public by reduction in the travel time. Applying the principle of proportionality, even if an alternative route is provided, still the balance would tilt in favour of environment and we would still require Respondent No.1 to carry out the project subject to such conditions which would strive equitable balance between the development on the one hand and the environment on the other. If Respondent No.1 is of the firm view, and particularly in view of the NOC dated 15th April, 2013 having been issued by 41 Irrigation Department, to carry out the project, then it has to be subject to such stringent conditions as would protect the environment and ecology as well as greater public interest by preventing floods etc. Keeping in view the above rival contentions and the facts of the present case, normally, we would have accepted the petition and prohibited carrying out the project any further with the specific demolition of the part of the road. The road can be raised by elevated pillars in the area that will fall within the blue line or inside the blue line. The construction of elevated pillars at that stage would neither obstruct the flow of the river nor narrow the flood plain. Furthermore, it will also help the storm or drain water to freely join the river during larger part of the area.
38. However, keeping in mind the public interest, that by imposition of certain conditions, environmental and ecological interests can be safeguarded, we would permit Respondent No.1 to complete the project. Accordingly, we impose the following conditions subject to which the project could continue:
(a) The interim order dated 4th January, 2013 and subsequent interim orders shall stand vacated and Respondent No.1 would be permitted to carry out and complete the project of building only 24 metre wide road from Vitthalwadi to NH-4 bypass as shown in Annexure R-2/1 strictly and subject to the conditions stated hereinafter.
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(b) Respondent No.1 shall make every effort to realign the road to bring it as far as possible closer to and beyond the blue line, right from chainage of 0+400 to 1+750 of Exh. Annexure 2/1. It shall ensure to extend the least part of the project in the river bed/blue line.
(c) The road/project shall be constructed on elevated pillars alone in the area that falls within the blue line.
(d) We direct Respondent No.1 to remove the debris dumped at the present site and shift the same to the red line by following 1 in 25 years rule.
(e) A massive plantation should be undertaken on both sides of the river, also in the no-development zone by Respondent No.1 as well as the State Government of Maharashtra. Adequate protective measures should be undertaken to prevent flooding and submerging of the residential area along the proposed road.
(f) The conditions imposed by the Chief Engineer, Irrigation Department, vide his NOC dated 15th April, 2013 shall mutatis mutandis be part of the present directions. The same shall be read in aid and not in derogation to the conditions stated in this order.
(g) As already noticed and highlighted during the course of the hearing, a large number of structures have come up at and even inside the blue line of the river Mutha. Respondent No.1 itself has issued notice to some of such structures for demolition. Thus, in the peculiar facts and circumstances of 43 the case, we further direct that Respondents No.1, 3 and 4 shall take appropriate steps against unauthorised constructions, if any, raised on and inside the blue line and pass order of demolition or such other order as is permissible in accordance with law. We also direct the said authorities to ensure that no encroachment is permitted and no construction in future is permitted on and inside the blue line of the river Mutha.
39. The imposition of the above conditions is necessary in the interest of environment and ecology. It is better to take precautions at this stage, even at the cost of additional expenses rather than to face floods, disaster, loss of person and property and irreversible damages to ecology and environment. The precautionary principle, which is a part of the law of the land now and is a Constitutional mandate in terms of Articles 21, 48A and 51A(g) of the Constitution of India, that require the State to safeguard and protect the environment and wild life of the country. It is expected of Respondents No.1 and 3 to anticipate and then prevent the causes of environmental degradation. Furthermore, no public interest would suffer by imposition of the above conditions. If the conditions imposed under this order are found to be onerous by the State, particularly Respondent No.1, then they can even give up the project on river Mutha as an alternative road on the other side of the river has already been constructed to provide the connectivity. In the event the Department decides to give up the road project, it shall be 44 incumbent on it to remove all debris from within the blueline that has been used to create the high rise road segment. It is stated to be a 100 ft. wide road on the left bank of the river Mutha giving connectivity with the same bypass. Thus, in the present case, Respondent No.1 has options and alternatives available to it while ensuring that both the public interest and the environment do not suffer.
40. The application is partly allowed to the above extent and with the directions aforestated while leaving the parties to bear their own costs.
Justice Swatanter Kumar Chairperson Justice U. D. Salvi Judicial Member Dr. D.K. Agrawal Expert Member Dr. R.C. Trivedi Expert Member Prof. A.R. Yousuf Expert Member New Delhi July 11, 2013 45