GANGA MAHASABHA Vs. UNION OF INDIA

JUDGEMENT

(1.) 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. 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 revier 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. 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 vs. Union of India reported in (1987)4 S.C.C. 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." 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:- "S.O.521(E).- Whereas the river Ganga is of unique importance ascribed to reasons that are geographical, historical, socio-cultural and economic giving it the status of a national river: And whereas the river Ganga has been facing serious threat due to discharge of increasing quantities of sewage effluents, trade effluents and other pollutants on account of rapid urbanisation and industrialisation; And whereas the demand for river water is growing for irrigation, drinking purposes, industrial use and power due to increase in population,urbanisation, industrialisation and growth in infrastructure, and taking into account the need to meet competing demands; And whereas there is urgent need,- (a) to ensure effective abatement of pollution and conservation of the river Ganga by adopting a river basin approach to promote inter-sectoral co-ordination for comprehensive planning and management; and (b) to maintain minimum ecological flows in the river Ganga with the aim of ensuring water quality and environmentally sustainable development; And whereas it is required to have a planning, financing, monitering and coordinating authority for strengthening the collective efforts of the Central and the State Governments for effective abatement of pollution and conservation of he river Ganga; Now, therefore, in exercise of the powers conferred by sub-sections (1) and (3) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986) (hereinafter referred to as the said Act), the Central Government hereby constitutes the Authority mentioned below for taking measures for effective abatement of pollution and conservation of the river Ganga. 1. Name of the Authority.- The Authority so constituted by the Central Government shall be known as the 'National Ganga River Basin Authority' (hereinafter referred to as the Authority).

(2.) HEADQUARTERS of the Authority.- The headquarters of the Authority shall consist of the following members, namely:- (a) Prime Minister - ex officio Chairperson (b) Union Minister, Environment and Forests - ex officio Member (c) Union Minister, Finance - ex officio Member (d) Union Minister, Urban Development - ex officio Member (e) Union Minister, Water Resources - ex officio Member (f) Union Minister, Power - ex officio Member (g) Union Minister, Science and Technology - ex officio Member (h) Deputy Chairman, Planning Commission - ex officio Member (i) Chief Minister, Uttrakhand - ex officio Member (j) Chief Minister, Uttar Pradesh - ex officio Member (k) Chief Minister, Bihar - ex officio Member (l) Chief Minister, Jharkhand - ex officio Member (m) Chief Minister, West Bengal - ex officio Member (n) Minister of State, Environment and Forests - ex officio Member (o) Secretary, Union Ministry of - ex officio Member Environment and Forests Provided that the Authority may co-opt one or more Chief Ministers from any of the States having major tributaries of the river Ganga, which are likely to affect the water quality in the river Ganga, as ex officio Member; Provided further that the Authority may also co-opt one or more Union Ministers as may be required, as ex officio Member; Provided also that the Authority may also co-opt up to five members who are experts in the fields of river conservation, hydrology, environment engineering, social mobilization and such other fields. 4. Powers and Functions of the Authority.- (1) Subject to the provisions of the said Act, the Authority shall have the power to take all such measures and discharge functions as it deems necessary or expedient for effective abatement of pollution and conservation of the river Ganga in keeping with sustainable development needs. (2) In particular, and without prejudice to the generality of the provisions of sub-paragraph (1), such measures may include measures with respect to all or any of the following maters, namely:- (a) development of river basin management plan and regulation of activities aimed at the prevention, control and abatement of pollution in the river Ganga to maintain its water quality, and to take such other measures relevant to river ecology and management in the Ganga Basin States; (b) maintenance of minimum ecological flows in the river Ganga with the aim of ensuring water qualify and environmentally sustainable development; (c) measures necessary for planning, financing and execution of programmes for abatement of pollution in the river Ganga including augmentation of sewerage infrastructure, catchment area treatement, protection of flood plains, creating public awareness and such other measures for promoting environmentally sustainable river conservation; (d) collection, analysis and dissemination of information relating to environmental pollution in the river Ganga; (e) investigations and research regarding problems of environmental pollution and conservation of the river Ganga; (f) creation of special purpose vehicles, as appropriate, for implementation of works vested with the Authority; (g) promotion of water conservation practices including recycling and reuse, rain water harvesting, and decentralised sewage treatment systems; (h) monitoring and review of the implementation of various programmes or activities taken up for prevention, control and abatement of pollution in the river Ganga; and (i) issuance of directions under section 5 of the said Act for the purpose of exercising and performing all or any of the above functions and to take such other measures as the Authority deems necessary or expedient for achievement of its objectives. (3) The powers and functions of the Authority shall be without prejudice to any of the powers conferred upon the States under any Central or State Act, being not inconsistent with the provisions of the Environment (Protection) Act, 1986 (29 of 1986). (4) The Authority shall combine regulatory and developmental functions as stated in sub-paragraphs (1) and (2), keeping in view the powers vested with the State Government and their institutions. 5. Meeting of the Authority.- .................... .................... 6. Jurisdiction of the Authority.- ................... ................... 7. Monitoring of effective abatement of pollution and conservation of the river Ganga.- ................... ................... 8. Corpus of the Authority.- ................... ................... 9. Administrative and technical support to the Authority.- ................... ................... 10. Constitution of State River Conservation Authorities.- The State Governments concerned may constitute a State Ganga River Conservation Authority under the chairmanship of the Chief Minister with such composition and such powers as deemed fit for coordinating and implementing the river conservation activities at the State level. 11. Comprehensive management in the State.- ................... ..................." Writ Petition No. 15125 of 2008; (Ganga Mahasabha and another vs. Union of India and others) (hereinafter referred to as the first writ petition) has been filed by a society registered under the Society Registration Act, 1860, namely, "Ganga Mahasabha". The society passed a resolution to challenge the construction of Ganga express way, which according to the society would completely diminish the river Ganga. The petitioners plead that society is in existence since 1905 and has been engaged in the work of cleaning the river Ganga and educating the Indian masses for keeping the river clean. It is further pleaded that petitioner No.1 has been engaged in repairing work of Ganga Ghats and has been rendering voluntary service for keeping the Ghats clean from Haridwar to Varanasi. The bye-laws of the society specifically mention its objects including conservation of nature and culture of river, running public awareness programme of making the Ganga pollution free. Petitioner No.2 claims to be Mahant of one ancient ''Math' known as Baghambari Gaddi. He claims to be managing Bade Hanuman Ji Temple at Bandh, Sangam, Allahabad. It is claimed that ''Math' is also engaged in voluntary service of creating and awaking the Indian masses for protection of river Ganga. The petitioners claim that they are not opposed to infrastructure development of the State but they submit that infrastructure development should not be made at the cost of spoiling and damaging river Ganga. The petitioners state that Ganga express way is neither in the public interest nor is scientifically and ecologically a feasible and viable project. The petitioners in support of the first writ petition pleads following reasons:- (a) The environmental side affect has been pleaded as main reason for opposing the construction of the Ganga express way. The petitioners state that construction of the Ganga express way shall cause disturbance in the environment as well as Ganga eco system. The urbanisation is already existing at one side of the river, permitting urbanisation on another side of the river will convert it into a dirty Nala. The example of river Yamuna at Delhi and Gomti at Lucknow has been cited stating that there being urbanisation in both sides of the said rivers, the aforesaid rivers have converted into big Nalas. It is further stated that ground water capillaries also be get chocked, which shall affect the ground water level. Referring to the advertisement made by the State Government dated 15th January, 2008, it is stated that as per the advertisement, the State Government shall be developing industries in the area of 10,000 acres. Along with the express way thousands of big and small scale industries shall be established along with the side of river Ganga and the Mall, Houses and urbanisation will generate dirty effluents and sewage, which will go into river Ganga. The express way being constructed at the height of more than 7-8 metre, during rains there shall be back flow in the sewer as well as in the Nalas and tributaries that will result in flood engulfing most of the areas of the cities and chocking the sewer lines. That will also cause siltering of sand due to increase in the sedimentation and soil erosion. The increase of sub soil rising will further cause environmental imbalance and shall decrease flow of water resulting loss of kinetic and potential energy of the river and the dissolved oxygen (D.O.) and the Bio-oxygen Demand (BOD) shall be affected. The express way shall lead to increase in temperature causing evaporation of the moisture disturbing entire aquatic life and will result into increase in pollution. Due to vibration caused by moving heavy vehicles continuously the natural capillaries of the ground water throughout Ganga express way shall be disturbed and shall hamper the ground water level also as the ground water shall not be charged and shall be lowered down. The continuous running of thousands of heavy vehicles will cause emission of carbon monoxide and carbon dioxide, which will settle on the basin of river bed causing pollution and affecting BOD and DO. (b) The petitioners claim that more than 64,000/- hectares of most fertile land in various districts shall be acquired on which land farmers are growing good crop along the side of river Ganga even without any irrigation. By acquisition of such huge most fertile land farmers shall loose their livelihood and the yield of crop shall also decrease. (c) The river Ganga is regarded as Mother Ganga and is treated as divine river and a very large population uses the water of river as drinking water and people with great faith and belief take dip in the river, by further increase in pollution level the water can neither be used as potable water nor fit for bathing, which shall shatter the faith and belief of entire population. The petitioners in the writ petition have referred to and relied on a letter dated 22nd January, 2008 of Professor U.K. Chaudhary of Civil Engineering Department, Institute of Technology, Banaras Hindu University, Varanasi written to the Chief Minister of the State giving scientific reasons for opposing Ganga express way. A twelve point sheet was attached with the letter giving his reasons for the view, the copy of letter and the twelve points forwarded have been annexed as Annexure-9 to the writ petition. The following are the twelve points, which have been mentioned by Professor Chaudhary, who is said to be an expert in river science:- "(1) The closeness of road with the river indicates larger height of it. The instability of road is proportionality intensified and hence its maintenance cost is increased. (2) Surface and ground water moves with higher velocity as it approaches river and its intensity increases as the river advances in the down stream. Therefore, the number of bridges and their length will be more. (3) The express way will cover concave and convex banks. Different tributaries and drains will meet the river through concave bank. The city is also situated on this bank. Therefore, the Express-way can not control the flood water from entering into the city (for e.g., In spite of high level of expressway, the flood water will rush in the city of Varanasi through Assi drain, Varuna river etc.) This proves the Express Way will not be a solution of flood. (4) The height of Express-Way (7-8m) and its distance (1-1.5 Km.) indicate that there will be around thirty concave banks and thirty convex banks along with the Express Way. The stable convex bank will intensify the sedimentation. Hence, the flood problem will be more acute. (5) Due to presence of Ganga Express Way the intensification of the sedimentation on convex side will cause the erosion of land on concave side. (6) The Ganga Express Way will cut the water shed which will cause the drainage path to deflect. This will intensify the erosion of the top layer soil of the basin. (7) The effect of cutting of water shed on one side will cause increase in pressure (depth of water) and the other side will enhance the seepage rate. Due to this reason the erosion of concave bank intensify. The lateral shifting of erosion (meandering) may affect the Express Way. (8) The express way will check the lateral expansion of flood path reducing the velocity of flow therefore, flood water entering through small river and drains will be larger in height and this will remain for longer period. (9) The Ganga express way will cut various micro water shed in the more than 1000 Km. Therefore, in one side of Express Way the most fertile land will be subjected to water logging. (10) Thousands of running vehicle will release huge quantum of harmful gases such as CO2, carbon monoxide etc. These gases will cause the increase in temperature. The rate of evaporation will increase and quantity of flow of water will decrease. This will further cause the depletion in DO content and increase in BOD. (11) After the construction of Express Way, the population of the area will increase, many industries will be set up, different institution will come into existence. These activities will cause higher utilization of water and hence the reduction in flow of river. In other way the quantum of pollutant load will increase there by the ratio between the river water and pollutant (dilution factor) will reduce. This will further cause the reduction in DO and increase in BOD. (12) The fertile land area between the Ganga express way and the river Ganga will be constantly subjected to sedimentation and erosion and will finally turn into flood plain. Thus, a large area of the fertile basin will be lost. On the aforesaid pleadings, following reliefs have been claimed by the petitioners in the first writ petition:- (i) issue a writ, order or direction in the nature of MANDAMUS restraining the respondents to construct Ganga Express Way along with bank of river Ganga from Noida, District Gautam Budh Nagar to District Ballia. (ii) issue a writ, order or direction in the nature of MANDAMUS commanding the respondents first to obtain expert and scientific opinion regarding feasibility of construction of Ganga Express Way in the public interest. (iii) issue a writ, order or direction in the nature of MANDAMUS commanding the respondents not to initiate any action for construction of Ganga Express Way at the bank of Ganga and keep the Ganga banks in its original state (and its convexity and concavity be maintained). (iv) issue a writ, order or direction in the nature of MANDAMUS commanding the respondents to construct Ganga Express Way on some other route not along with banks of river Ganga." Counter affidavits have been filed by the State of U.P., Union of India, U.P. Pollution Control Board, Jaypee Ganga Infrastructure Corporation Limited, which has been awarded contract for carrying out the project and the Uttar Pradesh Express Way Industrial Development Authority. The stand taken by the State of U.P. in the counter affidavit is that the Irrigation Department of the State has submitted a preliminary project report in June, 2007 for construction of marginal embankment from Narora, District Budaun to District Varanasi and it was proposed to keep top width of the embankment as 40 metre to accommodate 6-Lane express way. The preliminary project was submitted to the U.P. Pollution Control Board by letter dated 22nd June, 2007 for prior environmental clearance. The U.P. Pollution Control Board on 26th June, 2007 wrote that marginal embankment was not covered in the schedule of projects requiring prior environmental clearance. It was, however, suggested that in the event 6-Lane highway is constructed in future, the application be submitted to the concerned authority in accordance with the notification dated 14th September, 2006 of the Government of India. On 4th July, 2007 an application was submitted by the Engineer-in-Chief, P.W.D., U.P. to the Member Secretary, U.P. Pollution Control Board enclosing concept report, an application in Form-1 and proposed terms of reference for obtaining prior environmental clearance. Vide notification dated 12th July, 2007 the State Environment Impact Assessment Authority as well as the State Level Expert Appraisal Committee was constituted. On 18th July, 2007 the Public Works Department through its consultant M/s Engineering and Technology Services made presentation of the project before the State Level Expert Appraisal Committee. The State Level Expert Appraisal Committee vide its letter dated 18th July, 2007 considered the application and the terms of reference and added certain additional studies to be carried out. On 18th July, 2007 the Engineer-in-Chief, Public Works Department wrote to the U.P. Pollution Control Board that presentation has been made before the State Level Expert Appraisal Committee on 18th July, 2007 and the action be taken for public hearing in various districts. The U.P. Pollution Control Board published a notice in newspapers on 19/20th July, 2007 notifying public hearing on 20th August, 2007 in eleven districts. For four districts, i.e., Ghazipur, Chandauli, Allahabad and Gautam Budh Nagar notice was published on 27th July, 2007 fixing 27th August, 2007 for public hearing. On 23rd July, 2007 in a meeting of Cabinet Secretary it was decided to construct a 8-Lane express way in place of 6-Lane express way and further to extend it up to Narainpur, Ghazipur. The Chief Engineer (World Bank) on 24.7.2007 submitted to Secretary, State Level Expert Appraisal Committee a revised Form-1 for 8-Lane express way and it was further stated that Rapid Environment Impact Assessment report is under preparation. On 20th August, 2007 public hearing was conducted by the U.P. Pollution Control Board at eleven districts and the report was submitted by the U.P. Pollution Control Board to the State Environment Impact Assessment Authority on 21st August, 2007. On 22nd August, 2007 the presentation was made by the U.P. Public Works Department before the State Level Expert Appraisal Committee and on the same date the State Level Expert Appraisal Committee made a recommendation to the State Environment Impact Assessment Authority for granting environmental clearance. On 23rd August, 2007 the State Environment Impact Assessment Authority granted environmental clearance with regard to eleven districts whose public hearing was held on 20th August, 2007 and with regard to five districts whose hearing took place on 27th August, 2007 environmental clearance was granted on 30th August, 2007. After obtaining the prior environmental clearances, the State Government issued global invitation on 1st November, 2007 for request for qualification for development of access controlled 8-Lane express way from Greater Noida to Ballia on public private partnership. On 27th December, 2007 by a notification issued under the provisions of U.P. Industrial Area Development Act, 1976 an authority was constituted, namely, U.P. Expressway Industrial Development Authority. After evaluating the bids of the bidders who were qualified for request for proposal, an award was made in favour of successful bidder M/s Jai Prakash Associates Limited vide letter dated 24th January, 2008. A concession agreement was also executed subsequently between Jaypee Ganga Infrastructure Corporation Limited and U.P. Expressway Industrial Development Authority on 23rd March, 2008. The allegations made in the writ petition regarding environmental adverse affect has been denied and it is submitted that express way shall neither affect environment nor there shall be any increase in pollution in river Ganga. The other allegations in the writ petition were also denied. It was contended that environmental clearance order dated 23rd August, 2008 itself contemplates obtaining of necessary environmental clearances from all concerned authorities, hence there shall be no difficulty in execution of the express way project. A detail counter affidavit has also been filed by the Jaypee Ganga Infrastructure Corporation Limited supporting the stand taken by the State referring to various different clauses of the concession agreement. It has been stated that answering respondent has to procure all applicable permits, no objection certificate and clearance from competent authority before commencement of construction work. It is submitted that project in question will save land from flooding, utilising the top for construction of express way. It has been stated that State Environment Impact Assessment Authority has examined the matter and granted environmental clearance on 23rd August, 2008. It is further stated that only 27,000 hectares of land would be required to be acquired. Learned counsel appearing for Jaypee Ganga Infrastructure has filed copies of concession agreement (technical and non technical schedules) referred as Volume A, B and C during hearing. The U.P. Pollution Control Board stated that State Highway project falls under Category-B of the schedule given in the notification dated 14th September, 2006 and the environmental clearance has been given by the State Environment Impact Assessment Authority after taking into consideration public consultation process. Learned Additional Advocate General on behalf of the State has also submitted flow chart of events pertaining to Ganga Express Way containing different correspondences referred therein. Learned Chief Standing Counsel has also placed before us the original letters pertaining to correspondence by the Irrigation Department of the State, Public Works Department of the State and letters and proceedings of the State Level Expert Appraisal Committee and State Environment Impact Assessment Authority. The records pertaining to public hearing conducted on 20th August, 2007 and 27th August, 2007 by the U.P. Pollution Control Board has also been submitted by the learned counsel for U.P. Pollution Control Board. The Union of India, Ministry of Environment has also filed a counter affidavit and additional affidavit annexing the notification dated 14th September, 2006 issued in exercise of power under sub-section (1) and clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986. The copy of the reports of State Level Expert Appraisal Committee dated 18th July, 2007 as well as 31st July, 2007 and the recommendation of the State Level Expert Appraisal Committee dated 22nd August, 2007 have been brought on the record. In the counter affidavit filed on behalf of Ministry of Shipping letter dated 29th August, 2007 written by the Chief Engineer, Public Works Department to the Ministry and proceedings of the meeting of the Planning Commission dated 25th January, 2008 have also been brought on the record. In the supplementary counter affidavit filed on behalf of respondent No.4 (Ministry of Environment and Forests, Government of India), it has been stated that that the project proponent has indicated the project as State Highway, hence they have approached the State Level Expert Appraisal Committee for environmental clearance. In a supplementary counter affidavit sworn by Dr. Ramjee Srivastava, on behalf of Government of India Ministry of Environment and Forest dated 30.1.2009 it has been stated that vide letter dated 21.1.2009 information from Director, Directorate of Environment/Member Secretary State Level Environment Impact Assessment Authority has been asked for regarding 1. Discrepancy in Categorisation of the Project as 'B' under 7 (f) 2. Details of the activities as mentioned under 9.1 of Form-I Referring to aforesaid affidavit Sri Ajay Bhanot, learned Counsel for Union of India stated that complete information of the Ganga Expressway Package, which include (a) embankment at the side of river Ganges (b) construction of the express highway on the top of the embankment, (c) development of the land parcels allotted for the purpose of construction of industries, schools, hospitals etc. was never forwarded in the prescribed proforma, as required under the notification dated 14th November, 2006 to the Ministry of Environment. In absence of complete package having been forwarded, as aforesaid, there was no occasion for the Ministry to examine the environmental impact of such a huge project in light of the provisions of the Notification dated 14th September, 2006. He reiterated that the proponent was under legal obligation to prepare and submit the complete project (as has been offered under the contract to the respondent private company) for environmental clearance under the Environment Act, 2006 read with Notification dated 14th September, 2006 to the Regulatory Authority referred to under Clause 2 of the Notification. He clarifies that in absence of complete package having been forwarded, the Ministry could not examine the environmental impact of the Ganga Expressway Package as a whole, it is only when the complete package is forwarded to the concerned Ministry that it could examined as to under which category the project would fall and therefore needs clearance of which authority under the Environment Impact Assessment Act, 2006 read with Notification. Writ Petition No.21754 of 2008; (Vindhya Environmental Society and another vs. Union of India and others) (hereinafter referred to as the second writ petition) has been filed by Vindhya Environmental Society, which is a registered society under the Societies Registration Act, 1860. The petitioners' case is that the society was formed with primary object of preserving the natural environment and educate the masses and make the general public aware of the importance of environment through seminars, meeting, rallies and conferences. The society claim to be committed to make every endeavour to make the earth pollution free by exhibitions, publication in newspapers and magazines. Petitioner No.2 is the Secretary of the Society. Petitioners' case in the writ petition is that State Government is going to construct the 8-Lane express way without obtaining prior objection from the public and has shown utter disregard to the important aspect of keeping the environment free from pollution. The petitioners claim to have filed the writ petition on behalf of the general public. Petitioners stated that they believe in development of infrastructure of the State but oppose the efforts of making express way without following the pollution control norms, not taking into account the guidelines given by the Apex Court for preservation of the ecological balance and environment and without any scientific research. Petitioners' case is that notice was published in the ''Dainik Jagaran' on 19th/20th July, 2007 for public hearing in accordance with the notification dated 14th September, 2006. On 27th July, 2007 the petitioner submitted an application before respondent No.3 for making available the proposed project plan for information/inspection of the public. The letter dated 27th July, 2007 stated that relevant materials regarding project is not available even after expiry of one week of the publication of notice. The petitioners claim to have submitted detail application on 20th August, 2007 before the panel conducting public hearing reiterating their request, which was already made on 27th July, 2007 to provide relevant papers pertaining to project. It was stated in the representation that without relevant materials, objection or views are not possible to be given. It was prayed that appropriate action be taken so that general public may get an opportunity to participate in the public hearing. On 20th August, 2007 the petitioner No.2 was present in the public hearing at district Mirzapur and he alongwith other persons present informed the hearing panel that materials details and reports of the project has not been provided to anyone and relevant materials be provided and a week's time be given to give their views. The hearing panel allowed one week time to the persons present to give their views which was recorded in the proceedings also. The hearing panel however went on to conduct meeting although the project records and other papers were not made available, the hearing panel recommended for the issue of ''no objection certificate'. The petitioners after coming to know about the recommendation of panel submitted an application on 25th August, 2007 praying that hearing held on 20.8.2007 be cancelled and fresh hearing be held. The petitioners further claim to have sent an application under Right to Information Act, 2005 praying for certain information. The petitioners have placed reliance on an expert opinion of Dr. U.K. Chaudhary, Professor in the Department of Civil Engineering, Banaras Hindu University (Expert of River Science and Engineering). The letter of the Professor (Dr.) U.K. Chaudhary dated 22nd January, 2008 addressed to the Hon'ble Chief Minister highlighting twelve points (as quoted above) in support of his opinion that construction of Ganga express way is not environmentally feasible has also been brought on the record. The petitioners were permitted to amend the writ petition by adding paragraphs (32 to 45), grounds (xiv to xviii) and relief (i, j and k). The petitioners in amended pleadings have challenged the environmental clearance dated 23rd August, 2007 granted by State Environment Impact Assessment Authority taking the ground that the entire procedure adopted for environmental clearance resulting in the order dated 23rd August, 2007 was conducted in breach of the statutory regulations dated 14th September, 2006. Specific allegations and pleadings in this regard shall be shortly noticed hereinafter while considering the submissions in detail. Counter affidavits have been filed in the second writ petition by the State of U.P., State Level Expert Appraisal Committee, State Environment Impact Assessment Authority, Jaypee Ganga Infrastructure Corporation Limited, U.P. Pollution Control Board as well as Uttar Pradesh Express Way Industrial Development Authority. A detail counter affidavit has been filed by respondent 10 (Uttar Pradesh Express Way Industrial Development Authority) in which it has been stated that a preliminary project report has been submitted by the Irrigation Department in June, 2007 for construction of marginal embankment from Narora to Varanasi on top of which express way was to be accommodated. Letter dated 22nd June, 2007 of the Engineer-in-Chief, Irrigation Department and the reply dated 26th June, 2007 of U.P. Pollution Control Board as have been referred above, have been relied. The letter sent to Ganga Flood Control Commission, Patna on 19th August, 2007 seeking clearance for flood control scheme has been referred to and filed. Reply of the Ganga Flood Control Commission dated 23rd August, 2007 has also been brought on the record wherein Ganga Flood Control Commission has stated that since the express way is to be constructed on embankment, the applicant should approach the Surface Transport Ministry, Government of India for further action. Certain preliminary comments were also made on the project by the Ganga Flood Control Commission. The counter affidavit filed by respondent No.10 almost takes the same stand, which has been taken in the counter affidavit filed on behalf of the State of U.P. in the first writ petition as noticed above, hence for the sake of brevity the same is not repeated. The allegations made in the writ petition that environmental clearance was granted in breach of statutory provisions has been refuted. It is submitted that relevant records were made available during public hearing and it is even admitted that on the date of public hearing the records were available. It is submitted that embankment is being constructed in accordance with the guidelines issued by the Ganga Flood Control Commission, Government of India. It has further been stated that State Environment Impact Assessment Authority vide letter dated 15th April, 2008 has directed that a detail study of the ground water hydrology should be undertaken pursuant to which letter has been issued to the National Institute of Hydrology, Roorki for conducting the study and the report of the National Institute of Hydrology is still awaited. It is stated that public hearing has been done in accordance with the 2006 Regulations and both State Level Expert Appraisal Committee State Environment Impact Assessment Authority have applied their mind while granting environmental clearance. The State has chosen to file a short counter affidavit repeating the same allegations, which have been noticed while referring to the counter affidavit of the State in first writ petition. The State Level Expert Appraisal Committee has filed a short counter affidavit, in paragraph 4 of which, while replying paragraphs 1 to 45 of the writ petition, it has been stated that since no specific allegation has been made against respondent No.11, hence no detail reply is required on behalf of respondent No.11. It is, however, stated that after perusing the materials submitted by U.P. Pollution Control Board, the State Level Expert Appraisal Committee recommended the proposal. The State Environment Impact Assessment Authority has also filed a counter affidavit reiterating that environmental clearance has been granted on the recommendation of the State Level Expert Appraisal Committee in accordance with the notification dated 14th September, 2006. A counter affidavit has also been filed by the Jaypee Ganga Infrastructure Corporation Limited containing similar pleadings, which have been made in the counter affidavit filed in the first writ petition. It has, however, been stated that land required shall be about 27,000 hectares and the project will be step towards flood control. It is stated that express way will be providing a fast and safe connectivity resulting in savings in fuel, travel time and total transportation cost, reduction in pollution and accidents and employment opportunity to the people. The marginal embankment from Narora to Ghazipur will be of 779 kilometre. It has been stated that matter has been referred to I.I.T., Roorki for studying the impact of construction of expressway embankment on the morphology and hydrology of river Ganga, which report is still awaited. It is contended that according to the conditions contained in environmental clearances dated 23rd August, 2007 as well as the conditions contained in concession agreement, the project would have no adverse affect on the river or the environment as alleged by the petitioners. The rehabilitation and resettlement policy of the Government of U.P. have been enclosed along with the counter affidavit. Learned counsel appearing for both the parties have referred to and relied on various decisions of the Apex Court, which shall be referred to while considering their respective submissions. Sri Arun Kumar Gupta, Advocate assisted by Sri Puneet Kumar Upadhaya has been heard for the petitioners in the first writ petition. Sri Ajay Bhanot, Advocate has been heard for respondents No.1 to 4. The State-respondents were represented by learned Additional Advocate General and learned Chief Standing Counsel. Sri Zafar Naiyer, Additional Advocate General assisted by Sri Rajesh Misra has been heard for respondent No.7. Sri Shashi Nandan, Senior Advocate assisted by Sri Suresh Singh has appeared for respondent No.9. Sri R.N. Trivedi, Senior Advocate assisted by Sri Yashwant Verma has been heard for respondent No.10. Sri Rahul Mishra, learned counsel has been heard for the petitioners in second writ petition. Sri Shashi Shekhar Tiwari has appeared on behalf of respondents No.1, 2, 4 and 5. Sri Zafar Naiyer, Additional Advocate General assisted by Sri Rajesh Mishra has appeared for respondent No.3. Learned Additional Advocate General and learned Chief Standing Counsel has appeared for the State-respondents. Dr. H.N. Tripathi has put in appearance on behalf of respondents No.9 and 11. Sri Suresh Singh has appeared on behalf of respondent No.10. Sri R.N. Trivedi, Senior Advocate, assisted by Sri Yashwant Verma has appeared for respondent No.8. Sri Arun Kumar Gupta learned counsel for the petitioners in support of the first writ petition has referred to and relied on various pleadings of the writ petition as referred to above. He relying on the averments made in first writ petition contends that due to sociological reasons, ground of faith and side affect on environment as explained in the writ petition, the Ganga express way project should not be permitted to be constructed on the left bank of river. It is further contended that State Government without undertaking any scientific study or obtaining report from any research institution or University has hurriedly proceeded to obtain environmental clearance. Sri Rahul Mishra, learned counsel appearing for the petitioners in second writ petition contends that in obtaining environmental clearance the statutory provisions, namely, 2006 Regulations have been breached. The statutory provisions having been violated the entire process and procedure is vitiated. Learned Additional Advocate General and Chief Standing Counsel, refuting the submissions of counsel for the petitioners, contend that 8-Lane Ganga express way is being constructed on marginal embankment from Narora to Ghazipur to serve dual purpose. The marginal embankment shall protect large area of fertile land from flood due to which more agricultural land shall be protected and yield better crops. It is contended that the preliminary concept report of the Irrigation Department was considered and letter was also written to the Ganga Flood Control Commission, Patna on 19th August, 2007 for obtaining clearance for marginal embankment who vide its letter dated 23rd August, 2007 has approved the embankment project and directed for obtaining clearance from Ministry of Surface and Transport of 8-Lane express way. It is submitted that U.P. Pollution Control Board conducted hearing in accordance with the 2006 Regulations and both the State Level Expert Appraisal Committee and State Environment Impact Assessment Authority have considered the report and proceedings of the public hearing and granted environmental clearance. Sri Zafar Naiyer, Additional Advocate General submitted that public hearing was conducted in two phases, for eleven districts notice was published on 19/20th July, 2007 fixing 20th August, 2007 on which date hearing was completed and with regard to four districts a notice was issued on 27th July, 2007 fixing 27th August, 2007 on which date hearing was conducted. He submits that fresh notice became necessary since on 23rd July, 2007 it was decided to convert the 6-Lane express way into 8-Lane express way affecting four more districts. Sri Shashi Nandan, learned Senior Advocate, has submitted that U.P. Express Way Industrial Development Authority was constituted on 27th December, 2007 and thereafter took all necessary steps for selection of a contractor for carrying out the project. The concession agreements contains all necessary safeguards pertaining to environment and river pollution. Sri R.N. Trivedi, learned Senior Advocate, assisted by Sri Yashwant Varma, appearing for the Jaypee Ganga Infrastructure Corporation Limited has supported the steps taken by the State in obtaining environmental clearance. He submits that 8-Lane express way project falls in Category 7(f) of 2006 Regulations and is a Category-B project, hence environmental clearance has been granted by State Environment Impact Assessment Authority. He submits that environmental clearance dated 23rd August, 2007 lays down several conditions, which take care of all environmental hazards and pollution. He further submits that J.P. Ganga Infrastructure Corporation Limited was selected by adopting a fair procedure and no bidder has made any complaint with regard to any part or procedure of bid. He submits that concession agreement has been entered, which itself provides for several conditions protecting all applicable laws and applicable permits including renewal as required in the performance of bids application under this agreement. He further refers to Clauses 5.4.1, 5.4.2 and 5.5.2 of the concession agreement, which provide as follows:- "5.4.1 The Concessionaire shall obtain all required statutory and other approvals/no- objections/sanctions including environmental clearances from Competent Authority before starting Construction Work on Expressway and land parcels. 5.4.2 The Concessionaire shall maintain zero net drawal from ground water. 5.5.2 The Concessionaire shall ensure that any sewage, treated or untreated, shall be disposed off in accordance with the provisions of Applicable Law." Sri Trivedi submits that necessary permission/approval with regard to various aspects of environment pollution shall be obtained by Concessionaire as per conditions of environmental clearance and as per condition of the concession agreement. It is premature stage to enter into adjudication of the issues raised by the petitioners in these writ petitions. It is further submitted by Sri Trivedi that it is in the domain of the State Government to take a policy decision regarding embankment and express way project and the Court may not enter into issues of desirability or feasibility of the project. He submits that Court at the instance of the petitioners cannot enter into the issue as to whether embankment will be beneficial for control of flood or embankment will not be able to control the flood. Sri Trivedi further submits that under the concession agreement the answering respondent has to be allotted land parcels for development as provided in paragraph 3.8 of the concession agreement, which shall be in addition to the land required for construction of express way. He submits that answering respondent has not yet been allocated the land parcels, hence while obtaining environmental clearance mention of land parcels were not rightly made by the State Government. He submits that at the time of development of land parcels all necessary clearances and no objections are to be obtained by the concessionaire. Replying to the submission that statutory procedures under 2006 Regulations have not been followed in obtaining environmental clearance, Sri Trivedi relies and refer to the counter affidavit filed by the State. It is contended that even if the summary EIA report was not made available during entire period, it is not denied that the same was available on 20th August, 2007. He further contends that petitioners (Vindhya Environmental Society) have failed to prove any prejudice by non supply of EIA report and the summary EIA report and at best the petitioners can contend violation of principles of natural justice and this Court on the above ground need not interfere since the petitioners have failed to prove any prejudice. He contends that it is well settled that an action taken in violation of principles of natural justice is not interfered with unless a prejudice is proved by person complaining violation of principles of nature justice. Before we proceed to consider the respective submissions raised by learned counsel for the parties, it is relevant to note the relevant constitutional and statutory provisions governing the environmental law. The environmental concern has been shown throughout the world and environmental issues have been raised in international conferences, various international debates were held and the research papers were published from international and national research organisations working in the field of environment. It is useful to refer to proclamation adopted by the United Nation Conference on the Human Environment, which took place at Stockholm in June, 1972 in which India was a participant through the Prime Minister of the country. Following proclamation was adopted:- "1. Man is both creature and moulder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man's environment, the natural and the manmade, are essential to his well being and to the enjoyment of basic human rights - even the right to life itself. 2. The protection and improvement of the human environment is a major issue which affects the well being of peoples and economic development throughout the world : it is the urgent desire of the peoples of the whole world and the duty of all governments.

(3.) SCREENING, Scoping and Appraisal Committees.-The same Expert Appraisal Committees (EACs) at the Central Government and SEACs (hereinafter referred to as the (EAC) and (SEAC) at the State or the Union territory level shall screen, scope and appraise projects or activities in Category ''A' and Category ''B' respectively. EAC and SEAC's shall meet at least once every month. (a) The composition of the EAC shall be as given in Appendix VI. The SEAC at the State or the Union territory level shall be constituted by the Central Government in consultation with the concerned State Government or the Union Territory Administration with identical composition; (b) The Central Government may, with the prior concurrence of the concerned State Governments or the Union Territory Administrations, constitutes one SEAC for more than one State or Union territory for reasons of administrative convenience and cost; (c) The EAC and SEAC shall be reconstituted after every three years; (d) The authorised members of the EAC and SEAC, concerned, may inspect any site(s) connected with the project or activity in respect of which the prior environmental clearance is sought, for the purposes of screening or scoping or appraisal, with prior notice of at least seven days to the applicant, who shall provide necessary facilities for the inspection; (e) The EAC and SEACs shall function on the principle of collective responsibility. The Chairperson shall endeavour to reach a consensus in each case, and if consensus cannot be reached, the view of the majority shall prevail.