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2009 Supreme(All) 2410
[2009(5) ADJ 337 (DB)]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND ARUN TANDON, JJ.
GANGA MAHASABHA AND ANOTHER .....Petitioners
Versus
UNION OF INDIA AND OTHERS .....Respondents
(Civil Misc. Writ Petition (P.I.L.) Nos. 15125 and 21754 of 2008,
decided on 29th May, 2009)
Counsel :
Arun Kumar Gupta, Puneet Kumar Upadhya and Rahul Mishra for the Petitioners; Zafar Naiyer, Addl. Advocate General, Rajesh Misra, Chief Standing Counsel, Shashi Nandan, Suresh Singh, R.N. Trivedi, Dr. H.N. Tripathi Yashwant Verma, Ajay Bhanot and Shashi Shekhar Tiwari for the Respondents.
Headnote:(A) Public Interest Litigation—Ganga Express Highway (8-Lane Express Highway)—Proposed construction policy of—P.I.L. challenging such policy on ground that by such construction would cause adverse impacts on Holy river Ganga and increase pollution—It was also pleaded that its construction is neither in public interest nor necessary environmental clearance has been obtained, as required by law—High Court after examining various aspects of environmental law, elaborating several other relevant feature and considering requirements of law—Found that undue haste and hurry has been taken at every step and by violating statutory requirements, non-consideration of relevant environmental issues, environmental clearance has been obtained—Entire process adopted by Government reveals that authorities concerned were predetermined to grant clearance without following statutory process—In view of these legal lapses, High Court quashed environment clearance and directed Government not to proceed with construction of proposed Ganga Express Highway ‘8’ way project—Entire law on pollution, obtaining of clearance certificate and other relevant and constitutional aspects—Projected in detail. [Environmental (Protection) Act, 1986—Sections 2(a), 3(1), 3(2) and 3(3)—Environmental (Protection) Rules, 1986—Rule 5—Environmental Clearance Regulations, 2006—Regulations 7, 6, 5, 4, 3 and 2 and Appendix IV and V—Constitution of India—Articles 48-A and 51-A (as inserted by Constitution (Forty Second Amendment) Act, 1976) and Article 21].
[Paras 88 to 90, 102 to 104, 107 and 108]
(B) Judicial review—Scope of—Ganga Express Highway (8 Lane Express Highway)—Public Interest Litigation writ petition—High Court although has limited jurisdiction in policy matters of Government—But it cannot shirk from its responsibility from examining whether such project violates constitutional or statutory law and whether it strictly complied with relevant law—In the instant case, project of Ganga Express Highway was challenged on environmental and constitutional as well as statutory laws—As such, High Court cannot refuse to exercise its powers of judicial review. [Constitution of India—Articles 48-A and 51-A (as inserted by Constitution (Forty Second Amendment) Act, 1976 and Article 21—Environmental (Protection) Rules, 1986—Sections 2 and 3—Environmental (Protection) Rules, 1986—Rule 5—Environmental Clearance Regulations, 2006—Regulations 7, 6, 5, 4, 3 and 2 and Appendix IV and V]. [Paras 31 to 33, 39, 48, 58 and 100]
Hon’ble Ashok Bhushan, J.—There is no river in the world which has influenced humanity or contributed to the growth of material civilization, or of special ethics to such an extent as the holy river Ganga. The mighty river which has silently worked through ages in an unceasing process of regeneration of soil, spreading life and sustenance to vast humanity, is today, struggling to survive from uncontrolled and unabated pollution of its water caused by sewage discharge from towns, cities including discharge of effluents from industries, tanneries and mills situate on its banks. In these two writ petitions, which have been entertained as public interest litigation, the petitioners have come up to challenge the project and grant of environmental clearance dated 23.8.2007 for construction of 8-Lane Express Highway (Ganga Express Highway) proposed to be constructed on the left bank of river Ganga from Noida to Ballia (1047 Km) along with which there shall also be commercial, industrial, institutional and residential development spread over an area of more than 12,000 hectare.
2. The petitioners plead that on the right bank of river Ganga there being already dense urbanisation, construction of 8-Lane express way on its left bank along with development of new townships, industries and colonies at selected places coupled with the adverse impacts of vehicular emission on the river water shall increase pollution level of rever to such an extent that river Ganga shall turn into a big Nala. The 8-Lane express highway project is a mega project having estimated cost of twenty-six thousand crores.
3. The issues raised in these two writ petitions require serious consideration specially in view of the fact that even more than two decades ago the Apex Court in a public interest litigation pertaining to pollution in river Ganga had sounded note of concern regarding uncontrolled pollution of river water by effluents discharges from industries. The Apex Court said that stage has reached that any further pollution of river water is likely to lead to a catastrophe. Following are the observations made by the Apex Court in public interest litigation title: M.C. Mehta v. Union of India, (1987)4 SCC 463 :
“Water is the most important of the elements of nature. River valleys have been the cradles of civilization from the beginning of the world. Aryan civilization grew around the town and villages on the banks of the river Ganga. Varanasi which is one of the cities on the banks of the river Ganga is considered to be one of the oldest human settlements in the world. It is the popular belief that the river Ganga is the purifier of all but we are now led to the situation that action has to be taken to prevent the pollution of the water of the river Ganga since we have reached a stage that any further pollution of the river water is likely to lead to a catastrophe. There are today large towns inhabited by millions of people on the banks of the river Ganga. There are also large industries on its banks. Sewage of the towns and cities on the banks of the river and the trade effluents of the factories and other industries are continuously being discharged into the river. It is the complaint of the petitioner that neither the government nor the people are giving adequate attention to stop the pollution of the river Ganga. Steps have, therefore, to be taken for the purpose of protecting the cleanliness of the stream in the river Ganga, which is in fact the life sustainer of a large part of the northern India.”
4. During course of hearing the Central Government vide a notification issued in exercise of powers conferred by sub-sections (1) and (3) of Section 3 of the Environment (Protection) Act, 1986 has constituted an Authority namely “National Ganga Basin River Authority” for taking measures for effective abatement of pollution and conservation of the river Ganga. It is useful to quote the notification including clauses 1, 2, 3, 4 and 10 of the notification
