Supreme Court of India
D.D.A.versusRAJENDRA SINGH & ORS.
- Citation
- 2009 INSC 973
- Decided
- 30 July 2009
- Disposal
- Disposed off
- Bench
- K G BALAKRISHNAN
Holding
The CGV site is not a riverbed or floodplain, the writ petitions filed after inordinate delay are liable to be dismissed, and the High Court’s direction to set up a fresh monitoring committee is set aside.
Summary
The Delhi High Court entertained two public‑interest writ petitions filed in 2007 that challenged the construction of the Commonwealth Games Village (CGV) on the basis that it would damage the Yamuna riverbed and floodplain. The petitioners sought a stay of construction and the formation of a monitoring committee, while the government appealed the High Court's directions. The Supreme Court held that the petitions were filed after an inordinate delay and after the project had been approved, making them liable to dismissal. It found, based on the 1999 land‑use notification, NEERI reports of 1999, 2005 and 2008, and the environmental clearance, that the CGV site is neither a riverbed nor a floodplain. The Court also ruled that the earlier Supreme Court decision on the adjacent Akshardham Temple is a binding precedent and that the existing high‑powered committee, chaired by the Lt. Governor and assisted by Dr. R.K. Pachauri, suffices for monitoring. Consequently, the High Court’s order directing a fresh committee was set aside and the government’s appeals were allowed.
Issues considered
- The propriety of entertaining a public‑interest writ filed after the commencement of the project and after a long delay.
- Whether the CGV site falls within the definition of the Yamuna riverbed or floodplain.
- Whether the High Court could validly direct the constitution of a new monitoring committee despite an existing high‑powered committee.
- The binding effect of the Supreme Court's earlier decision on the Akshardham Temple site on the present dispute.
- The validity of the land‑use change notification and environmental clearances obtained for the CGV.
Legislation cited
- Delhi Development Act, 1957s. 11A, s. 12, s. 44
Subjects
public interest litigationenvironmental lawriverbedfloodplaindelaylachesland use changeCommonwealth Games VillageNEERIAkshardham TempleDelhi Development Actenvironmental clearance
Judgment
[2009] 12 S.C.R. 163
D.D.A. A
...
i v.
RAJENDRA SINGH & ORS.
(Civil Appeal Nos.4866-4867 of 2009)
JULY 30, 2009
8
[K.G. BALAKRISHNAN, CJI., P. SATHASIVAM AND DR.
B.S. CHAUHAN, JJ.]
+- Constitution of India, 1950:
c
Articles 32 and 226 - Writ petitions filed before High
Court under public interest litigation - Ongoing constructions
at the site of Commonwealth Games Village questioned on
the ground that the same would adversely affect ecological
integrity of the 'riverbed' and cause irreversible damage to D
"floodplain" of river Yamuna - Direction by High Court to set
.>
µp a Committee to monitor the constructions carried out by
I- DMRC - HELD: A P/L filed under Article 32 or 226 after
inordinate delay and without reasonable explanation therefor
is liable to be summarily dismissed - In the instant case, E
Notification for change of land use was published in 1999 and
proposal for the site for CGV was published in 2003 -
Considering the reports of NEER/ and CWPRS that the site
~ in question did not fall within 'riverbed' or 'floodplain' the same
was chosen for CGV - Besides, when a High Powered F
Committee in association with a renowned environmentalist
was monitoring the entire work, High Court was not justified
in entertaining the writ petitions and issuing the direction -
Judgment of High Court set aside - Environmental Law -
Public Interest Litigation - Delhi Development Act, 1957. G
.. Article .141 - Law declared by Supreme Court to be
binding on all courts - Decision of Supreme Court in relation
to Akshardham Temple held by High Court as not binding!
163 H
164 SUPREME COURT REPORTS [2009] 12 S.C.R.
A applicable in considering CGV site - HELD: CGV site being
adjacent to Akshardham Temple, the decision of Supreme
Court in the said case has bearing on the issue and is a
binding precedent for all purposes - Precedent.
B Words and Phrases:
Expressions 'floodplain' and 'riverbed' - Connotation of
Pursuant to the decision taken by Commonwealth
Games Federation on 13th September, 2003 to hold XIX
C Commonwealth Games-2010 in Delhi, Commonwealth
Games Village site was proposed to be located adjacent
to Akshardham Temple in Delhi. Two writ petitions were
filed under Article 226 of the Constitution of India, as
publi~ interest litigation, before the High Court in the year
D 2007 challenging the steps taken by the governmental
agencies on the ground that the ongoing constructions
on the site would affect the ecological integrity of the
..
"riverbed" besides causing irreversible damage to the
"floodplain". The High Court castigating the
E Governmental agencies, directed that the committee
under the Chairmanship of Dr. R.K. Pachauri, to be
constituted by the Government to examine and monitor
the construction carried out by DMRC. The governmental
agencies filed appeals challenging the directions issued
F by the High Court whereas the two writ petitioners filed
appeals as the High Court declined to stay the ongoing
constructions.
Allowing the appeals of the governmental agencies
G and dismissing those of the two writ petitioners, the
Court:
HELD: 1.1. A PIL filed under Article 32 or Article 226
or of the Constitution of India after inordinate delay and
without reasonable explanation, challenging a project
H
D.D.A. v. RAJENDRA SINGH & ORS. 165
after commencement of its execution, is liable to be A
... summarily dismissed. In the case on hand, it is not in
- .l
dispute that both the petitioners approached the High
Court only in the middle of 2007. Therefore, on the
- ground of delay and laches, the writ petitions were liable
to be dismissed. Though an objection was raised by all
the official respondents before the High Court about the
B
inordinate delay in filing of the writ petitions, the said
aspect was not either adverted to or considered by it.
[Para 26 and 28] (198-G-H]
;-
c
Narmada Bachao Ando/an vs. Union of India (2000) 10
sec 664, relied on.
1.2. The Notification dated 21.09.1999 for change of
land use was published iri the Gazette of the Government
of India. The site in question for the construction of D
_j
Commonwealth Games Village had been chosen and
widely published way back in the year 2003 itself. The
t-
Department also issued a Global Tender process for
Public Private Partnership participation in the residential
portion of the Commonwealth Games project which was E
floated in December 2006 and was completed in June
2007. Apart from these materials, it was also highlighted
before the High Court as well as before this Court that
J._
Environmental Clearance was granted on 14.12.2006
permitting permanent structures on the site. It was F
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.
The High Court has lost sight with regard to these material G
aspects. The High Court, therefore, in the absence of
proper explanation, ought not to have probed the matter
at this juncture. [Para 26 and 28) (199-8-F; 201-A-B]
2.1. After due deliberations by the ODA with other H
166 SUPREME COURT REPORTS (2009] 12 S.C.R.
A departments including the Yamuna Committee and
pursuant to the elaborate discussion on 10.11.1997 itself,
35 hectares of land were recommended for change of
land use and the same was approved (Pocket-Ill) on
21.09.1999 for "public and semi-public purpose". [Para
B 28] [201-D-F] -
2.2. 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 "'
c
proposal and permitted the ODA to use the area covered
under Pocket- Ill for "public and semi-public purpose".
[Para 28] [201-F-G]
2.3. The materials on record clearly show that, at
D every stage, ecological integrity of the river, the concept
of "riverbed", "floodplain" and "river zone" were duly i
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 Ill alone was
E reclassified and Master Plan Delhi 2001 was also suitably
amended. [Para 18] [187-F-H]
2.4. In view of the literal meaning and in the light of
-4
the clarification by NEERI in their affidavit dated
F 29.01.2008, the site in question is neither a "floodplain"
nor a "riverbed". [Para 24) [197-D]
2.5. A conjoint reading of NEERI reports 1999, 2005
and January, 2008 coupled with affidavit dated 29.01.2008 .~
G clearly shows that the CGV site is not either on a
"riverbed" or on the "floodplain" of the Yamuna river. It
is brought to the notice of the Court that during the '
course of hearing NEERI filed before the High Court an
affidavit dated 29.01.2008 wherein it clarified the entire
aspects and asserted that the site in question is not even
H
D.D.A. v. RAJENDRA SINGH & ORS. 167
"floodplain" much less a "riverbed". It is also pointed out A
in its report that 85% of the land at the site in question is
()eing used for recreational purposes and 15% for
development purposes (including residential and
commercial). The High Court, therefore, is not justified.in
making comments on the NEERI Report presented in B
January 2008. [Para 22-23 and 28] (196-A-C; 201-8-C]
Thames Conservators Case [1897] 2 QB 335, referred
to.
The Black's Law Dictionary, 6th Edition Pg 154; C
Advanced Law Lexicon by P. Ramanatha Aiyer's , Volume
4, 2005 Edition Pg. 4157; and Fredd Michaels, 'Dictionary
of Environment Studies'- referred to.
2.~. Th~ 9~§ervation ~md ~gnclusion of the High D
j
CPYrt that tJi~ §jJ~ in ques~jgn is cm a "riverbed!! cannot
b!il !5Y§t~inei:f, Th~ High Court disregarded and ignored
material $Cientifi~ lit@rnt1.1rn ~n~ the ~minion of experts and
scientific; be>diei;; whi~I'! h<lV@ i::~teQ9riscilly h~ld that the
CGV site is neither h>c<lt!il~ ,:m ~ "river!>~cl'' nor on the E
"floodplain". Further, in view of the change of the land
use which wa!i approved way back in 1997 by the
Yamuna Committee and by NEERI permitting the DOA to
use Pocket-Ill for ''public and semi-public purpose", the
contrary conclusion arrived at by the High Court is liable F
to be set aside. [Para 28) [201-H; 202-A-C]
2.7. The decision of expert and autonomous body,
... namely, NEERI, supported by materials placed by other
bodies such as CWPRS and MoEF, cannot be lightly G
interfered with by the Court without adequate contra
materials. [Para 28] (201-C-D]
3.1. It is not in dispute that the CGV site is situated
adjoining to Akshardham Temple. When land was allotted
H
168 SUPREME COURT REPORTS [2009] 12 S.C.R.
A for construction of Akshardham Temple, a writ petition
was filed before this Court under Article 32 of the
Constitution of India, challenging allotment of the said
land to Akshardham on the ground that the same would
adversely affect recharging of underground water and
I,
-
B that the allotment was contrary to the land user as
declared in the development plan. On behalf of the ODA,
it was stated that the proposed construction being nearly
1700 metres away from the Yamuna River bank was
permitted after obtaining the opinion of the Central Water
c Commission and NEERI and was in accordance with the
sanctioned plan. This Court dismissed the writ petition.
The CGV site in question and the site allotted for
Akshardham Temple form part of the same area and both
are adjacent to each other. In the light of the reasoned
0 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. The
said observation of the High Court cannot be sustained.
Inasmuch as the Akshardham Temple site is adjacent to
E CGV site, the decision of this Court in regard to
Akshardham Temple has bearing on the issue and is a
binding precedent for all purposes. [Para 25, 27 and 28)
[197-F-G; 200-C-E; 202-C]
3.2. A High-Powered Committee for Yamuna River
F Development Authority was constituted by the Prime
Minister of India consisting of the Lt. Governor,
Government of NCT as Chairperson, with Chief Minister
of Delhi as Vice-chairperson and other Members
representing various departments, to go into the aspects
G of development of the river, ecology, environmental
pollution, sustainable use of river front and quality of
water in the Yamuna river. Since the said Committee in
association with Dr.R.K. Pachauri is monitoring the
ongoing construction of CGV, the direction of the High
H Court for appointment of a fresh Committee to examine
D.D.A. v. RAJENDRA SINGH & ORS. 169
f. and monitor the construction carried out by DMRC is set A
~
/
.\ aside. [Para 22] [195-D-H]
., /
4. The judgment of the High Court is set aside. The
DOA and other authorities are free to proceed with the
work at CGV site. [Para 28] [202-F-G] B
Case Law Reference:
[1897] 2 QB 335 referred to para 24
t-
(2000) 10 sec 664 relied on para 26 c
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
4866-67 of 2009.
From the Judgment & Order dated 3.11.2008 of the High
Court of Delhi at New Delhi in Writ Petition (Civil) No. 7506 of D
. .i 2007 and Writ Petition (Civil) No. 6729 of 2007.
,.
WITH
C.A. No. 4868, 4'369, 4870-71, 4872-73, 4874, 4875-4876 of E
2009.
G.E. Vahanvati, Attorney Genl. for India, Gopal
J-.. Subramanium, Sol. Genl. of India, Parag P. Tripathi, ASG, T.
· Andhyarujina, Sameer Parekh, Devdutt Kamat, Arjun Garg,
' Yashodara Anant, Smita Bhargava, (for M/s. Parekh & Co.), F
Aman Ahluwalia, Binu Tamta, Sushma Suri, Sanjay Sharawat,
Abhishek Tewari, S.N. Terdal, Neeraj S.harma, Roopali Singh,
Archana Lakhatia (for Mis. Dua Associates), Kunal Bahri,
Sanjay Parikh, Jitin Sahni, Ritwick Dutta, A.N. Singh, Mamta
Saxena, Anitha Shenoy, Tarun Johri, N. Waziri, Rajiv Nanda, G
... .M.L. Lahoty, Sanjay Sharawat, Vishnu B. Saharya, Viresh B.
Saharya (for Mis. Saharya & Co.), Arijit Prasad, D.S. Mahra
for the appearing parties.
The Judgment of the Court was delivered by H
170 SUPREME COURT REPORTS (2009] 12 S.C.R.
A P. SATHASIVAM, J. 1. 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 a Committee to enquire as to whether the
B 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. Aggrieved by
the said judgment, Delhi Development Authority (in short "ODA")
c has filed S.L.P.(C) Nos. 29055-29056 of 200;: 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,
D Commonwealth Games has filed S.L.P .(C) Nos. 31123-31124
of 2008. Vined 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 arid Rajendra Singh & Ors petitioners in W.P.(C)
No. 7506 of 2007 before the High Court have filed S.L.P.(C)
E No. 6256 of 2009 praying for stopping all 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.
F
2. Leave granted in all the special leave petitions.
3. Brief Facts:
Vined Kumar Jain and Rajendra Singh and Others claiming as
G environmentalists approached the High Court of Delhi by filing
W.P.(C) Nos. 6729 and 7506 of 2007 for the following reliefs:
"(a) Directing the respondents to remove any
construction, fill up, digging etc. made so far and
H
D.D.A. v. RAJENDRA SINGH & ORS. 171
[P. SATHASIVAM, J.]
restore the ecology of Yamuna river bed. A
""\
(b) Declaring the Yamuna riverbed in Delhi as an
ecologically sensitive area and hence to be
protected and preserved.
B
(c) Directing that any construction in the Yamuna river
bed will permanently destroy the ecology of river
Yamuna; its ground water recharge ability and will
be violative of public trust doctrine, precautionary
l- principle which are part of Article 21 of the
Constitution.
c
(d) Directing that the respondents should locate an
alternative site for the project(s) as pointed out in
the EAC recommendations dated 03.11.2006.
D
(e) Setting aside of EC dated 14.12.2006 as being
violative of Article 21 of the Constitution.
"-
(f) Setting aside of EC dated 22.01.07; 29.03.07; and
02.04.07 as being arbitrary, whimsical, mala fide
E
and violative of Articles 14 and 21 of the
i Constitution.
'
..... (g) Directing the respondents to restore the ecology of
river Yamuna in accordance with the "Polluters pay
Principle". F
(h) Pass any such other order as this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case.
G
4. 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 . H
172 SUPREME COURT REPORTS [2009] 12 S.C.R.
A Olympic Association in the form of an agreement in which it ,.,
I
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 DOA are
effecting various steps including massive construction on the
B 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
c was to the effect that the ongoing construction would affect the
ecological integrity of the "riverbed" besides causing
irreversible damage to the "floodplain".
5. Refuting the apprehensions and the allegations of the
public interest litigants, the Respondents therein i.e. the Central
0
Government authorities - Ministry of Environment & Forests,
Ministry of Youth Affairs and Sports, Ministry of Urban
Development and Poverty Alleviation, Government of Delhi and
DOA filed separate counter affidavits extensively dealing with
E 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 from specialized
agencies like Ministry of Environment & Forests (MoEF), Delhi
Metro Rail Corporation (DMRC), National Environmental
F Engineering Research Institute (NEERI) and Central Water
Power Research Station (CWPRS).
6. The Government Departments in addition to clearing the
apprehension about damage to Yamuna 'riverbed' and
G '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
H petitioners about the Yamuna riverbed or floodplain. With
D.D.A. v. RAJENDRA SINGH & ORS. 173
[P. SATHASIVAM, J.]
handful of materials, both the writ petitioners and the official A
'\" 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 8
Government, is to examine and monitor the construction 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
i--- with the judgment prepared by A.K. Sikri, J. issued further
directions castigating the Government and made serious C
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 "pbst script" and held that the directions
issued by Rekha Sharma, J. would be deemed as directions o
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 E
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 F
by way of special leave petitions.
7. 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 G
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.
H
174 SUPREME COURT REPORTS (2009] 12 S.C.R.
A CONTENTIONS BY BOTH SIDES:
I '
8. 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:-
8
(i) Commonwealth Games Village (CGV) site was not
situated either on a "riverbed" or on the "floodplain"
of the Yamuna River.
(ii) Before proceeding with the formation of
c Commonwealth Games Village, NEERI reports of
1999 and 2005 were 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".
D
(iii) Remedial measures suggested by Central Water
Power Research Station (CWPRS) had been ,
accepted by the Government and being carried out.
(iv) Commonwealth Games Village is located in
E
Pocket Ill 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 Ill area which is abutting
the present site of construction.
F
(v) Based on the report of NEERI, change of land
measuring 42.5 hectares in Pocket Ill was notified
on 21.09.1999 and the petitioners have filed the
Writ Petitions only in 2007. Hence, the same are
G liable to be dismissed on the ground of delay/
!aches.
9. In addition to the above submissions, Mr. Parag P.
Tripathi, learned Additional Solicitor General of India and Mr.
H T. Andhyarujina, learned senior counsel for the Sports Authority
D.D.A. v. RAJENDRA SINGH & ORS. 175
[P. SATHASIVAM, J.]
highlighted that at each level Ministry of Environment and Forest A
-\. 71 (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.
B
10. M/s. Sanjay Parikh and M.L. Lahoty, learned counsel
appearing for the contesting respondents herein/petitioners
before the High Court submitted that NEER! reports in 1999
and 2005 does not permit the Government to proceed with any
~
construction in the Commonwealth Games Village site and the c
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
D
the river zone wherein the construction activities cannot be
J carried out without looking into the matter and evaluation by
I,
experts like Dr. R.K. Pachauri, as directed by the High Court.
They finally submitted that though they are not opposing the
Commonwealth Games, they are more concerned about the
E
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.
F
11. 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.
G
12. Development Plan in Yamuna River Stretch:
A
(a) From the materials placed by various specialized
bodies we gather that the river Yamuna is an
important natural feature of NCT, Delhi and a source H
176 SUPREME COURT REPORTS [2009] 12 S.C.R.
A 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
B 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 ....
c discharges from 18 major storm water drains and
growing encroachments in the river bed area. Also,
the ecosystems supporting migratory avifauna and
ground water recharge are being continuously
degraded and require immediate attention for
D conservation. Further, the aesthetic, recreational,
and navigational potential of the river has not been
~
harnessed in planning for development during the
last three decades.
(b) A number of development and other government
E
agencies have proposed plans for integration of
river Yamuna in the planning for development in
!'JCT-Delhi.
...\
(c) Although these urban planning proposals have
F 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
G emphasized in any of the development proposal.
,.
(d) River channelization, as proposed through various
plans for the purposes of flood control, drainage
improvement, maintenance of navigation, reduction
H of bank erosion etc. involve direct modification of
D.D.A. v. RAJENDRA SINGH & ORS. 177
[P. SATHASIVAM, J.]
the river channel. Conventional methods for A
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 B
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 C
sedimentation. It is therefore necessary that the
landscapes are comprehensively surveyed before
planning for restoration/ renaturalization/
channelization of the river Yamuna.
D
(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 E
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
F
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 DOA plan is
examined for its conformance with the development G
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.
H
178 SUPREME COURT REPORTS [2009] 12 S.C.R.
A (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
B north upto proposed ILFS-NOIDA Link Bridge in the
south is almost channelized and confined to a width
of 550m.
(g) The total flood plain area in this stretch between left
c 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.
D (h) The ambient air quality in the contiguous areas of
river stretch is characterized by the concentrations ~
of primary gaseous pollutants in the range:
Suspended Particulate matter (SPM) 189-722 (Mg/
m3), Sulphur dioxide (S02) 9.2-271 (Mg/m3) and
E Nitrogen Oxides (NOx) 18-34 (Mg/m3) exceeding
the CPCB standards for residential areas.
(i) The existing water quality in this stretch of the river
has very high values of BOD (19 mg/I) and COD
F (135 mg/I). The 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,
G 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
H Zooplankton only. The fish fauna in the river,
D.D.A. v. RAJENDRA SINGH & ORS. 179
[P. SATHASIVAM, J.]
available in monsoon and non monsoon seasons A
'I is the result of migrated fingerlings from the
upstream, feeding on decayed vegetation from
swampy areas on the bank.
0) Flood discharges and.. levels at different gauging B
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.
~
13. Delhi Administration even as early as on 29.03.1989,
c
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 River D
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 E
consideration by CWPRS, Pune. Three Pockets which were
identified are as under:
_,._ Pocket-1
F
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 spill over of parking required for Pragati
Maidan during the peak days, mainly for heavy vehicles.
G
,:.. Pocket-2
It is proposed to be used for recreational and public &
semi-public district (convention centre) and office complex
(GNTCD Offices), and race course etc. H
180 SUPREME COURT REPORTS [2009] 12 S.C.R.
A Pocket-3
It is proposed to be used for recreational and public and
i'
semi public uses.
This subject was considered in the Technical Committee
B
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
c 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 y'
D 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." "
E Ultimately, 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
F
Action Plan, specially with reference to the river
bund and boulevard.
(ii) Planning activity for spiritual park, hotels &
Convention Centre be immediately taken up after
G consultation with the Ministry along with action in
parallel for completion of procedural formalities
....
relating to change in land-use etc.
(iii) International competition be invited after receipt of
H necessary clearances from the Ministry.
D.D.A. v. RAJENDRA SINGH & ORS. 181
[P. SATHASIVAM, J.]
14. As a fotlow-up action with regard to land use change A
"'\ for Pocket 111, Phase I, Government of India, Ministry of Urban
Affairs & Employment, DepartmenLof 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 8
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 Ill, Phase
I. Pursuant to the same, Delhi Development Authority on
-!-
23.06.1997 issued public notic~. It is relevant to mention the c
contents of the said notice:-
"DELHI DEVELOPMENT AUTHORITY
No.F.20(11 )94-MP Dated 23.06.1997
D
~-
PUBLIC NOTICE .
.I.
;'
The following modifications which the Central
Government proposes to make in the Master Plan/Zonal E
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-Seqetary, Delhi
... Development Authority, Vikas Sadan, ·~· Block, INA, New
Delhi with a period of 30 days from- the date of issue of F
this notice. The person making the objections/suggestions
should also give his name and address.
MODIFICATIONS
....,._
"The land Lise of an area, measuring about io hec. G
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 arid
Semi Public facilities'. H
182 SUPREME COURT REPORTS [2009] 12 S.C.R.
A 'The 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, Naida
Link Marginal Sund Road and proposed 'Recreational'
B (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'.
The plans indicating the proposed modification will
c be available for inspection at the office of the Joint
Director, Master Plan Section, 6th Floor, Vikas Minar, l.P.
Estate, New Delhi on all working days within the period
referred above.
(V.M. BANSAL)
COMMISSIONER-CUM-SECRETARY
DELHI DEVELOPMENT AUTHORITY"
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 Ill out of Pockets I, II and Ill which were submitted by the
Delhi Development Authority for consideration.
15. 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
D.D.A. v. RAJENDRA SINGH & ORS. 183
[P. SATHASIVAM, J.]
Government proposes to make in the master plan for Delhi A
...
I 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 B
of the said Act, within thirty days from the date of the said
notice.
2. WHEREAS· 3 objections/suggestions were
received with regard to the said modification. c
3. AND WHEREAS the Initial Environmental
Examination Study (Phase-I) Report has been
submitted by National Environmental Engineering .
Research Institute (NEERI), Nagpur and based on
which the Central government have decided to D
~
modify the Master Plan.
_>.
4. NOW, THEREFORE, in exercise of the powers
conferred by sub- section (2) of Section 11A of the
said Act, the Central Government hereby makes the E
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 th,e Gazette of India;
F
MODIFICATION
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 G
·" falling in Zone 'O' (River yamuna) Phase I, Pocket Ill is
changed from 'agricultural and water body' (A-4) to public
and semi public facilities.
H
184 SUPREME COURT REPORTS (2009] 12 S.C.R.
A (R.S. GUSAIN) ..
I
Under Secretary to the Government of India"
Pursuant to the same, Master Plan for Delhi 2001 was also
modified and the following Notification was issued:-
B
"THE GAZETIE OF INDIA: EXTRAORDINARY
[Part II-Sec 3(ii)]
MINISTRY OF URBAN DEVELOPMENT
(DELHI DIVISION)
c
NOTIFICATION
NEW DELHI, THE 18TH AUGUST, 2006
S.O. 1321 (E). -Whereas certain modifications which the
D
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
E
with the provisions of Section 44 of the Delhi Development
Act, 1956 (61 of 1957) inviting objections/suggestions as
required by sub-section (3) of Section 11-A of the said Act,
within thirty days from the date of the said notice.
F 2. Whereas a number of objections/suggestions were
received in response to the above stated public notice
dated 2nd March, 2006 with regard to the proposed
modifications and whereas the Central Government have,
after carefully considering all aspects of the matter,
G decided to modify the Master Plan-2001.
3. Now, therefore, in exercise of the powers conferred by
Sub-section (2) of Section 11-A of the said Act, the Central
Government hereby makes the following modifications in
H
D.D.A. v. RAJENDRA SINGH & ORS. 185
[P. SATHASIVAM, J.]
the said Master Plan for Delhi-2001 with effect from the A
.J( date of Publication cif this Notification in the Gazette of
India.
Modification:
B
(i) The land use of an area of 16.5 hec in Pocket-Ill, Phase-
1in Zone 'O' is changed as per following description:-
Location Area in Land Use Land Use Boundaries
hec. Changed c
(MPD-
2001)
Pocket-Ill (i) 11.0 Agricultural Residential . East-
hec. and Water Parking/
Body Dham D
Temple
Phase-1 (ii) 5.5 Agricultural Commercial/ West-45m
South - hec. and Water Hotel wide
Green/ Body embankment
National road. E
Highway North-
241n proposed
Zone-'O' 30m road.
[No. K-13011 /25/2005-001 BJ F
S. MUKHERJEE, Under Secy"
16. 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 G
Office Memorandum reads as unqer:-
"No. 731/2/1/207-Cab-lll
Government of India
Cabinet Secretariat
H
186 SUPREME COURT REPORTS [2009] 12 S.C.R.
A Rashtrapati Bhawan
,C.,
I
New Delhi dated the 24th August, 2007
OFFICE MEMORANDUM
..
B 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-
c
Chair. The composition of the High Powered Committee
would be as follows:-
(1) Lt. Governor, Delhi Chairperson
D (2) Chief Minister, Delhi Vice Chairperson
(3) Secretary, M/o Urban Development Member \
(4) Secretary, Mio Environment & Forests Member ,
(5) Secretary, Ministry of Water Resources
Member
E
(6) Chief Secretary, GNCT of Delhi Member
(7) Pr. Secy, Urban Development, GNCT of Delhi Member
(8) CEO, Delhi Jal Board Member
-I
(9) Vice Chairman, DOA Member
F
2. The terms of reference of the High Powered Committee
shall be as follows:
(a) Commission studies on different aspects of the
development of the river, viz., hydrology, ecology,
G
environmental pollution, sustainable use of the river front,
...
etc., to feed into the policy frame work.
(b) Develop a policy framework and prepare an integrated
plan addressing issues of both quantity in terms of river
H flow and quality in the Yamuna River.
D.D.A. v. RAJENDRA SINGH & ORS. 187
[P. SATHASIVAM, J.]
A
~ (c) Develop an operational plan for implementation of the
river action Programme.
(d) Effect intersectoral coordination for planning and
implementation until such time a statutory arrangement is
..... B
' in place.
(e) Suggest the design for statutory framework.
.,._ 3. The committee would be free to co~opt expert members
as felt by the Committee. c
4. The committee would submit a three monthly report on
action to the Prime Minister's Office though the Cabinet
Secretary.
D
(Rajive Kumar)
J
-' Joint Secretary to the Government of India"
17. It is also brought to our notice that at the request of
the Chief Engineer (SEZ), Delhi Development Authority, New E
Delhi, regarding environmental issues of Commonwealth
Games Village, Dr. R. K. Pachauri has consented to head the
panel to monitor the on-going construction at Commonwealth
\-
Games Village site. The acceptance letter finds place at Page
-t 264, Volume-II of the paperbook. F
18. 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.
G
It also reveals that the expert bodies like NEER! and CWPRS
~"' were duly consulted and based on their expert opinion the land
under Pocket Ill alone was reclassified and Master Plan Delhi
2001 was also suitably amended.
H
188 SUPREME COURT REPORTS . [2009) 12 S.C.R.
A 19. 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 Ill and
modification in Master Plan Delhi 2001. It is his grievance that
though in the reports submitted in 1999 and 2005, NEERI has
B not specifically permitted the Government or the DOA to use #'"""
the land in question for any other activities, but in January, 2008
it has changed its view in order to suit the 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 A
c 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-Ill and 1.2 kms away from
D 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
E 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.
..
F 20. Learned Solicitor General of India has clarified that ,
NEERI report of 1999 as well as 2005 are silent about'
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
G
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
~
H '
r'""
D.D.A. v. RAJENDRA SINGH & ORS. 189
[P. SATHASIVAM, J.]
Solicitor General of India pointed out that the NEERI report of A
,..
\
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 B
embankment, it clearly observed that the area does not form
part of the "floodplain". The same reads as under:
_,._ "Given the definition of the project area, as considered by
MoEF in its clearance letter dated 29th March, 2007, the c
boundaries of Yamuna River, which were considered in the
earlier NEERI report, were demarcated by East and west
bank bunds, whereas now the river, post 2002, has new
boundaries in the project region, i.e. 45 m wide and about
1 Km long (Stretching between New Railway Bridge and D
Nizamuddin road bridge) newly constructed bund in East
J
and original bund in West. The reclaimed area, Pocket
.~
Ill is deemed to be no more a part of the flood plain zone
by the Akshardham bund and MoEF has in principle
approved the bund." E
(Emphasis supplied)
21. In January, 2008,° NEERI submitted a report after
considering the earlier reports and various relevant materials
su.pplied by MoEF and analyzing Environmental Impact F
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 G
..,.. of the r~port .
"Commonwealth Games Village Complex by Delhi
Development Authority in Pocket Ill of Sub-Zone 6 of
Yamuna River H
190 SUPREME COURT REPORTS [2009] 12 S.C.R.
A 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,
B ODA has proposed to create a Commonwealth Games
Village (CGV) complex in Pocket Ill of Sub Zone 6 of
Yamuna River. The village complex is designed to provide
accommodation for a maximum 10,000 persons (during
and post commonwealth games 2010). It will also provide
c other 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 Ill, against any flood of the highest
magnitude, DOA has constructed an embankment having
top width of 20m and a bottom width of 45m connecting
D
the new railway bridge and NH-24 Bridge.
Problem Statement
DOA requested NEERl's opinion through letter no.
E 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
F of the Yamuna Flood Plain, more so after the
construction of embankment (Akshardham Bund).
b. Whether after compliance of the conditions
imposed by the MoEF, while according
environmental clearance of the Commonwealth
G
Games Village, is there any threat of environmental
degradation/loss of ground water recharge.
c. Whether any further additional abatement/mitigation
measures are required to be taken.
H
D.D.A. v. RAJENDRA SINGH & ORS. 191
[P. SATHASIVAM, J.]
Background A
t\
NEER! submitted a repent titled "Initial Environmental
Examination of Development Plan IN Yamuna River Stretch
between Railway Bridge and Proposed ILf=S Bridge"
t during January 1999. Figure 1 prese11_ts the proposed B
landuse for riverbed development in Pocket Ill 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
c
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 recommended
- as wooden community to enhance terrestrial biodiversity.
NEER! further submitted a complete rejuvenation plan for
River Yamuna in NCT in April 2000. Various central and
D
j
state government ministries and departments reviewed
this report. Based on the comments and observations
NEER! submitted the final report in October, 2005 .
. However, NEERI report did not assess any embankment
E
(Akshardham bund), which came into existence by that
time, as it was not part of the original study.
NEERl's Assessment
·~·
DOA has proposed the development of CGV in Pocket Ill F
Block of Subzone 6 of the Yamuna River. From the
historical development of Pocket 111, we have the following
details:
1. The Ministry of Water Resources, which is the G
supreme authority for giving permission to any
-~.
activity in India pertaining to water bodies, etc., has
given clearance for reclamation of Pocket Ill for the
development (vide Noting No 16/1/YC/97/EM-1/
376-88, dated 28th May, 1997, Item 56.2.1 of Flood
H
192 SUPREME COURT REPORTS [2009] 12 S.C.R.
A Management-I Dte, Central Water Commission,
Government of India).
2. The Gazette Notification dated August 18, 2006 by
Government of India, Ministry of Urban
B Development, has notified the modified Master
Plan for Delhi indicating landuse for 16.5 ha in
Pocket Ill, Phase I in Zone "O" as follows.
* Pocket Ill (area 11 ha) changed landuse-
Residential
c
* Phase I in Zone "O" (area 5.5 ha), changed
land use-Commercial/hotel.
D
In this 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 rn road in North.
3. For the proposed CGV in this pocket, environmental
clearance has been obtained by DOA from MoEF by
E
submitting necessary documents. The documents included
a report titled "Environmental Impact Assessment study of
Commonwealth Games Village" prepared by Mis. EQMS
India Pvt. Ltd. Delhi on behalf of DOA. MoEF granted
environmental clearance to the project vide its letter dated
F
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 DOA to conduct
a study (vide its letter dated Jan 22, 2007). DOA engaged
G 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
H
D.D.A. v. RAJENDRA SINGH & ORS. 193
[P. SATHASIVAM, J.]
indicated that the bund would cause insignificant flood A
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 B
estimated as 206.1 m above MSL. These ensure the
complete safety of Pocket Ill against any flood. On
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 C
the total project domain and directed DOA to undertake
mitigation/abatement measures, as identified by CWPRS.
MoEF further directed DOA to comply with the following
conditions.
D
* To 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.
E
* 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.
F
* In order to protect the Akshardham Sund, 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 G
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.
H
194 SUPREME COURT REPORTS [2009] 12 S.C.R.
A NEER! reviewed the above-mentioned reports and
necessary documents supplied by ODA. NEER! did not do
any further study. NEER! has the following observations:
a. Given the definition of the project area, as
B considered by MoEF in its clearance letter dt 29
March, 2007, the boundaries of Yamuna River,
which were considered in the earlier NEER! report,
were demarcated by East and West bank bunds,
whereas now the river, post 2002, has new
c 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 111, is deemed to be no
more a part of the flood plain zone by the
D
Akshardham Bund and MoEF has in principle
approved the bund.
b. The mitigation measures prescribed by MoEF in its
clearance letter dated 14 December, 2006, if
E 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. Therefore, a detailed action plan
F including artificial recharge for the same should be
formulated to avoid any depletion in the groundwater
level.
c. A monitoring committee should be constituted to
G review periodically the post project environmental
quality. The committee should guide ODA on
mitigation measures."
22. We have already referred to the notification of the Delhi
H Administration dated 29.03.1989 declaring Yamuna River Front
0.0.A. v. RAJENDRA SINGH & ORS. 195
[P. SATHASIVAM, J.)
as "Development Area" for the purpose of Delhi Development A
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 NEER! and
finally the DOA after hearing public objections/suggestions in
respect of change of land use of Pocket-Ill Phase-I issued a f::l
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 c
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 D
;
facilities". Based on the above materials, a High-Powered
Committee for Yamuna River Development Authority was
' constituted with the c:ipproval of the Prime Minister by the
Cabinet Secretariat on 24.08.2007 consisting of the Lt.
Governor, Government of NCT as Chairperson, Chief Minister, E
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
-6:._ Executive Officer, Delhi Jal Board, Vice Chairman, DOA as
F
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
G
circumstances, we are unable to accept the contention of Mr.
Sanjay Parikh. We are equally of the view that the High Court
is not justified in making comments on the NEER! report
presented in January, 2008.
H
196 SUPREME COURT REPORTS [2009] 12 S.C.R.
A 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
B "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 site
falls wit~in Pocket-Ill, the NEERI and Yamuna Standing >
c Committee gave clearance only for development of Pocket-Ill.
24. Though there is no statutory definition for "riverbed" and
"floodplain" from the statute, the dictionary meaning of the same
is as under: ,
D "Riverbed" has been defined as the area over which the
river flows. In the Thames Conservators Case [1897] 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.
E
The "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.
F J-
The 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
G
opposing banks measured from the foot of the bank from
the top of the water at its ordinary stage.
P. Ramanatha Aiyer's Advanced Law Lexicon, Volume 4,
2005 Edition (Pg. 4157-4158) has described the bed of
H
198 SUPREME COURT REPORTS (2009] 12 S.C.R.
A there shall be no. construction in the land in question and the
first respondent (UP Government) has not put up any 1 ..
construction but is developing the same as a green belt and
there is no violation of the terms of allotment. On behalf of the
DOA, it was stated that the construction that was being put up
B 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 NEER! which is >
c an autonomous body. Accepting the above statements,
supported by the report of NEER! and in terms of sanctioned
plan approved by the DOA, 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
D 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 DOA and
•
opinion of the Central Water Commission as well as NEER!,
E 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. •
F
26. Delay/Laches:
Now, let 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
G was raised by all the official respondents before the High Court
--
about the inordinate delay in filing the writ 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
H semi-public" way back on 21.9.1999. Before re-classifying the
O.D.A. v. R.A.JENORA SINGH & ORS. 199
[P. SATHASIVAM, J.]
site, the ODA and the concerned authorities issued public A
\ 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
"1
falling in zone 'O' was changed on 21.9.1999 from "agricultural
-.. and water body" to "public and semi-public" purpose. Apart from B
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 c
in December 2006 and was completed in June 2007. Apart
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 permitting permanent
structures on the site after taking into consideration that the 0
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 (DOA).
that an extension of similar development in the area between
Yamuna and its flood protection bunds must not be propo_sed E
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
1 out and after completion of such studies permanent structures
were permitted to be constructed on the site in April 2007.
F
Unfortunately, the High Court has lost sight with regard to these
material aspects. In Narmada Bachao Ando/an 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
G
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 apply
to Pl Ls also and if there is no proper explanation for the delay,
Plls are liable to be summarily dismissed on account of delay.
H
200 SUPREME COURT REPORTS (2009] 12 S.C.R.
A 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 !aches,
the writ petitions were liable to be dismissed.
B
27. In view of our discussion, the conclusion of the High
Court that whether present construction is on the "riverbed" or
"floodplain" requires further consideration of an Expert
Committee cannot be sustained. In view of the abundant
C 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.
Pachauri 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
0
is not a binding precedent is also not acceptable. We have
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
E 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
aut0nomous body, dismissed the said writ petition. Inasmuch
as the present CGV site is adjacent to Akshardham Temple,
F 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.
28. In the light of the above discussion, the following
G conclusions would emerge:
(a) In 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
H question for the construction of CGV had been
D.D.A. v. RAJENDRA SINGH & ORS. 201
[P. SATHASIVAM, J.]
chosen and widely published way back in the year A
\ 2003 itself, the writ 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
(b) On a conjoint reading of NEER! 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. c
(c) The decision of expert and autonomous body -
NEER! 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. D
>
(d) After 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 E
change of land use and the same was approved
(Pocket-Ill) on 21.09.1999 for "public and semi-
public purpose".
(e) Before change of the I.and use, the authority F
concerned issued public notice, heard objections/
suggestions and in consultation with expert bodies
such as NEER!, CWPRS and MoEF, approved the
said proposal and permitted the DOA to use the
area covered under Pocket-Ill for "public and semi- G
public purpose".
~
(f) The observation and conclusion of the High Court
that the site in question is on a "riverbed" cannot
be sustained. The High Court disregarded and
H
202 SUPREME COURT REPORTS [2009] 12 S.C.R.
A ignored material scientific literature and the opinion
1-
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
8 was approved way back in 1997 by the Yamuna
Committee and by NEER! permitting the ODA to
use Pocket-Ill for "public and semi-public purpose",
the contrary conclusion arrived at by the High Court
is liable to be set aside. >
c
(g) 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.
D
(h) The 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
E 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 "
F departments should monitor the entire activities in
association with Dr. R.K. Pachauri.
(i) In view of our conclusion, the DOA and other
authorities are free to proceed with the work at CGV
G site.
,.
29. 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.
Consequently, Civil Appeal Nos. 4866-4867. 4868, 4872-4873,
H
D.D.A. v. RAJENDRA SINGH & ORS. 203
[P. SATHASIVAM, J.]
4875-4876 & 4876 & 4870-4871 of 2009 Arising out of S.L.P. A
t. (C) Nos. 29055-29056 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. B
R.P. Appeals disposed of.
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