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2003 DIGILAW 556 (SC)

National River Conservation v. State of Uttar Pradesh

2003-04-10

B.N.SRIKRISHNA, RUMA PAL

body2003
ORDER : Ruma Pal, J. Leave granted. 2. This appeal has been preferred from two orders of the High Court of Allahabad dated 16-9-1998 and 17-9-1998 in respect of the Ganga Action Plan II (GAP II). Both the orders were passed in a public interest litigation which had been initiated by one Rakesh Jaiswal. By the first impugned order, the High Court after noting that the establishment of River Police had been approved, had directed that the State Government should create a fresh cadre of River Police which would be comprised only of the rank of constables/Sub-Inspectors and who shall be otherwise under the control of the District Superintendent of Police. 3. The High Court directed that: "The State Government shall initially work out immediately a plan to assess as to monitor a stretch of river up to five km how many River Police Constables and Sub-Inspectors would be necessary and accordingly draw up a scheme in respect of other townships or cities along the banks of Rivers Yamuna and Ganga so that the required number of posts of Police Constables and Sub-Inspectors can be straightaway created and posted in those as has been already reported to the Court. The State Government has sanctioned the amount of Rs. 344 lakhs for this purpose. This amount apparently includes the equipments which may be required for the River Police in every district. However, if the River Police is assigned the task of monitoring the river in an efficient manner the amount indicated may fall too short, hence NRCD which is only made responsible to conserve the rivers may be asked to fund this project in Uttar Pradesh. The Regional Director of NRCD shall report this fact to the Central Government and let this Court know by the 1st week of October, 1998 the decision which should be taken in this regard forthwith as also the time which the State Government and NRCD will take to implement this Scheme." 4. The second order was passed on the applications of Respondents 6 and 7 before us who are Councillors of Varanasi Nagar Nigam. On the basis of the material produced with the applications the Court held that by reason of the improper planning and the failure of some of the schemes, the improper implementation of the Ganga Action Plan I, pollution in the Ganges had increased. On the basis of the material produced with the applications the Court held that by reason of the improper planning and the failure of some of the schemes, the improper implementation of the Ganga Action Plan I, pollution in the Ganges had increased. According to the Court this was due to the fact that the work which was undertaken had been started without getting the project report prepared in consultation with a Committee comprising of technical experts who should have examined various aspects to ensure that the money spent on the Ganga Action Plan was well utilised. 5. The Court, therefore, held that it has become necessary to stop all the work which is being undertaken till the entire project is carefully examined and scrutinised by a group of environmental scientists, technologists and experts working in this area for which NGOs working in the field concerned may also be consulted while finalising the project. 6. A Technical Committee comprising of various members nominated by the Court was directed to be constituted by the Ministry of Environment with complete paraphernalia including the Secretary with staff, working place and infrastructure. It was directed: (1) That the Committee would consider the applications of Respondents 6 and 7 and examine the projects in that background. (2) Only after the Committee cleared the projects one after the other the projects would be implemented. (3) In the meanwhile GAP II shall not be cleared till the same was examined and approved by the Committee. (4) GAP II should be implemented by involving the bodies who should be authorised to construct, maintain and operate the treatment plants and undertake the river conservation work at their own level with the help of the Government; they are just and with the guidance of the local NGOs and professional experts. 7. Further directions were given to the U.P. Pollution Control Board and VNN for testing and displaying everyday the pollution levels of Ganga at the bathing ghats to alert the public. 8. It appears that "the projects" referred to by the High Court were two ? one prepared by the Sankat Mochan Foundation and the other by U.P. Jal Nigam, a statutory body set up under the U.P. Water Supply and Sewerage Act, 1975. 8. It appears that "the projects" referred to by the High Court were two ? one prepared by the Sankat Mochan Foundation and the other by U.P. Jal Nigam, a statutory body set up under the U.P. Water Supply and Sewerage Act, 1975. The Court directed that the Committee would examine the projects in the light of the documents produced and only after the Committee had cleared the projects that the working would be undertaken. 9. The appellant before us in both appeals is the National River Conservation Directorate, a wing of the Ministry of Environment and Forests. 10. Initially by an order dated 29-10-1998, this Court stayed the operation of the two impugned orders. After this, according to the appellant, Varanasi Nagar Nigam had by resolution dated 23-9-2000 resolved that the project of the Sankat Mochan Foundation and U.P. Jal Nigam would be sent to the Central Government and the State Government for technical evaluation and the technical decision would be taken by the Government. The resolution further stated that the Municipality itself was not technically able. 11. According to the appellant, on 13-7-2001, as recorded in the minutes of 3-8-2001, the project report as prepared by U.P. Jal Nigam, had been approved by the appellant after consultation with several experts and other persons including members of Varanasi Nagar Nigam. 12. On an application being filed by Respondents 6 and 7 before this Court praying that the Sankat Mochan Foundation Project should be approved, an order was passed on 7-9-2001 which reads as follows: "We are not inclined to interfere with the order of stay that has been passed by this Court. However, we further direct that the Jal Nigam will not carry out any of its plans in respect of Ganga Action Plan, without leave of this Court." 13. An application was thereafter filed by the appellant for modification of the order dated 7-9-2001 and on 22-4-2002 an order was passed on this application which reads as under: "... When the Union Government on its own has come forward with a scheme which has been duly approved by the appropriate competent body, we see no justification for the Court not to permit the National River Conservation Directorate as well as the State of U.P. to carry out the project which, in our opinion, would greatly assist in purifying the Ganga at Varanasi. We, therefore, permit the applicant ? We, therefore, permit the applicant ? National River Conservation Directorate and the State of U.P. to go ahead with its proposal at Varanasi, which has been approved by a competent expert body. A similar application filed by U.P. Jal Nigam has been registered as IA No. 6 of 2001. The order dated 7-9-2001 is modified to the extent indicated above. These applications stand disposed of accordingly." 14. An application was again filed by Respondents 6 and 7 on which an order was passed by this Court on 23-9-2002 in which the Court recorded that when the order dated 22-4-2002 had been passed, the Court's attention had not been drawn to its earlier order dated 7-9-2001 and in the circumstances U.P. Jal Nigam was injuncted from going ahead with its Ganga Action Plan Project. 15. When the matter was taken up today for hearing, it was submitted on behalf of the appellant as well as U.P. Jal Nigam that the order of this Court had created an impasse as far as GAP II was concerned. According to them Respondents 6 and 7 had no right to question the competence of the Central Government to take a decision on this project, particularly in view of the resolution dated 23-9-2000 of Varanasi Nagar Nigam. It is submitted that the U.P. Jal Nigam GAP II Project had been passed upon notice to and after consulting with Varanasi Nagar Nigam and that, therefore, the application of Respondents 6 and 7 for the acceptance of the Sankat Mochan Foundation Project instead was misconceived. It is submitted that this Court's attention had in fact been drawn to the order dated 7-9-2001 when on the application moved for modification of order dated 7-9-2001 the order dated 22-4-2002 was passed. It is also submitted that this Court cannot use the power of judicial review to evaluate the technical aspects relating to different projects which were sought to be propounded by the appellant on the one hand and Respondents 6 and 7 on the other. According to the appellant the High Court also could not have directed the creation of a new cadre or new posts etc. nor directed the appellant to bear the expenditure in connection therewith. It is submitted that in any event the orders of the High Court superseding the powers of the Jal Nigam could not have been passed on the material placed before it. 16. nor directed the appellant to bear the expenditure in connection therewith. It is submitted that in any event the orders of the High Court superseding the powers of the Jal Nigam could not have been passed on the material placed before it. 16. Respondents 6 and 7 have submitted that the resolution dated 23-9-2000 did not, in fact, authorise the appellant or the Jal Nigam to either approve or implement any project in respect of the sewage and water supply in Varanasi. It is contended that the power to take any action in this regard was squarely with Varanasi Nagar Nigam and neither the State Government nor the Jal Nigam was competent to exercise this power. According to Respondents 6 and 7, the Jal Nigam was constitutionally incompetent to deal with the matter particularly by virtue of the seventy-fourth Amendment of the Constitution which came into force w.e.f. 1-6-1993. It is submitted that Articles 243-W and 243-ZF of the Constitution read with Item 6 of the Twelfth Schedule clearly show that Varanasi Nagar Nigam alone could work to implement GAP II. It is further stated that GAP II could be implemented only in consultation with Varanasi Nagar Nigam. It was further contended that GAP II has been a total failure; and that there was sufficient material to hold that U.P. Jal Nigam was incompetent to implement any project relating to Varanasi under GAP II. 17. As far as the first impugned order is concerned, we have found no material, either factual or legal to support the same. We record that Respondents 6 and 7 do not seek to support the order dated 16-9-1998. The first impugned order is, therefore, set aside. 18. As far as the second impugned order is concerned, it appears that none of the issues have been raised or at least dealt with by the High Court in the impugned orders. Apart from that, several other events have taken place subsequent to the order of the High Court. The High Court also did not address itself as to the propriety of issuing such an order under Article 226. We express no opinion on the merits of the matter and set aside the impugned order solely on the ground that the High Court has not dealt with the issues which have been raised before us. 19. We, accordingly, set aside the second impugned order. We express no opinion on the merits of the matter and set aside the impugned order solely on the ground that the High Court has not dealt with the issues which have been raised before us. 19. We, accordingly, set aside the second impugned order. The High Court will dispose of the matter after hearing all the parties, considering the material on record and after arriving at a finding on each of the issues raised. 20. All interim orders passed by this Court are vacated. 21. The civil appeal is disposed of accordingly. 22. It is requested that the High Court may dispose of the matter as expeditiously as possible. 23. In view of this order, IA No. 11 for impleadment does not survive.