S.B. Sinha, C.J.
1. A question as to whether inter alia any constructions should be allowed to be raised in and around Hussain Sagar is involved in this application.
The lake in question is one of the oldest fresh water lakes situated within the twin cities of Hyderabad and Secunderabad, built sometime in 1562. It was fed by Bulkapur canal which was a tributary of Musi river which is about 32 miles away from Hyderabad. It is not in dispute that supply of potable water to the people living in the residential area now called Secunderabad was the prime purpose for which it was originally built. Two rest houses built on the banks of Hussain Sagar were converted into Hyderabad and Secunderabad Sailing Club. The water of the lake was not only being used for maintenance of public gardens, Sanjeevayya Gardens, but also for Railways and industry. Industrial pollution found its way in the lake in 1964. Although the lake is now said to be free from industrial pollution, it still suffers from bacterial pollution due to increasing quantity of human and animal waste. Studies were made by several authorities as regards the nature and extent of the pollution of the lake affecting environment and echo system some of which are:
1. The fish from the fish kills may be collected and sold to the unsuspecting public. The consumption of fish would lead to problems like skin cancer, gastro-enteritis, fluorosis, and serious effects on the central nervous system of children in particular.
2. The emission of poisonous gases such as chlorine, hydrogen sulphide, iodine, etc., from the waters of the lake may be inhaled by the early morning exercisers on the tank bund, leading to respiratory problems.
3. The percolation of the Hussainsagar water into the ground water is quite extensive and the water in the borewells in Somajiguda, Domalguda, Ashoknagar, Himayatnagar, etc., is already polluted.
4. The buffaloes bathing in the lake consume the polluted water and the pollutants end up in the milk of these cattle.
5. Any person in contact with the waters of the lake for a period of time stands the risk of skin cancer and other skin related problems.
6. The lake is likely to become a eutrophic one, essentially meaning that the growth of algae and other aquatic plants may become so great that: (a) swimming, boating and sport fishing will not be possible; and (b) this condition may support the breeding of insects and parasites that may carry infectious diseases.
2. Researches conducted in the year 1973 found silt in the lake as also the water being highly polluted. The sediment in the silt contains toxic heavy metals and one of the researches found the following: __________________________________________________________________
Parameter Quantity (mg/kg)
3. Ganesh immersion, use of water by washer men and cleaning of buffaloes by the milk men add to the pollution problem. Water spread area of Hussain Sagar was said to be 1205 acres. But in the counter affidavit filed by the State it is stated that the said area at present is 1066 acres. It is, therefore, evident that within a short span of time more than 140 acres have been encroached. HUDA, on or about 11-8-1981, purported to be in exercise of their power under subsection (1) of Section 59 of the A.P. Urban Areas (Development) Act, 1975 made Zoning Regulations of Bhagyanagar Development Area, 1981. Land use zones and uses permitted are sub-divided into residential, commercial, industrial, recreational, agricultural and special reservations. Playgrounds, parks, exhibitions and fair grounds, picnic spots, zoological and botanical gardens, museums, aquarium, water fronts and areas of scenic interest and national parks were included in the recreational use zone. It identified 169 water bodies by a notification dated 4-5-2000 including Hussain Sagar.
4. Details of Hussain Sagar lake may be noted hereunder;
1. Catchment area 26 sq miles = 16,447 acres
2. Intercepted Catchment area 67 sq miles = 42,382 acres
3. Total length of weir 376 FT
4. FTL (crest of weir) 1684 ft
5. MWL 1689 ft
6. Capacity at FTL 1010.5 m cft
7. Capacity at MWL 1362.20 m. cft
8. Water spread area at FTL 2.25 sq miles - 1423.3 acres
9. Water spread area at MWL 2.75 sq miles - 1739.6 acres
10. Tank bund level + 1700.00ft
11. Recorded quantity thr. weir 12810 cusecs
Unfiltered Water from Hussain Sager
1. Fatheh Maidan 50,000 gallons
2. Public Garden 2,50,000 gallons
3. Residency (Women's College) 50,000 gallons
4. Dobhi ghat 1,35,000 gallons
5. Osmania University 5,00,000 gallons
6. Electricity Department 10,000 gallons
7. Narayandguda distillery 55,000 gallons
8. Industrial area and others 3,75,000 gallons
9. Pumping for Railway 6,00,000 gallons
5. The contention of the petitioners is that the HUDA had made amendments to its earlier notification dated 4-5-2000 by converting a portion of the area from open space to recreational zone.
According to the State, steps have been taken to stop industrial pollution. A Committee allegedly was also constituted under the Chairmanship of Mrs. Roda Mistry in the year 1980 pursuant whereto several steps have allegedly been taken by way of Bhudha Pumima Project. The area in terms of the said project is now sought to be gainfully utilised to secure the health and promote recreation to the inhabitants and to check encroachment in and around the lake. Water bodies have been identified and a plea had been taken that several legal battles in this regard are being fought. Having regard to the change in this people's aspiration the State allegedly appointed M/s. Charles Correa and Associates to conduct an in-depth study whereupon a master plan for beautification of Hussain Sager lake has been undertaken. The salient features of the report are:
(i) The lake is located at the confluence of Hyderabad, Secunderabad and Begumpet.
(ii) If we are to develop the lake to be the center of an artistic concept a holistic approach is essential. All its surroundings will have to be developed in an orderly fashion and the available sites developed to their full potential. Along the eastern edge of the lake runs the tank bund road a busy thorough fare connecting Hyderabad and Secunderabad. To its west and north is the sweep of Necklace Road, a new road that has been built by HUDA on the edge of the lake opening up land to the public, which was not previously accessible due to earlier encroachments. This land, between Necklace Road and the lake is zone-1; and could potentially be earmarked for outdoor public facilities as entertainment, food, recreation and culture.
(iii) Since Hyderabad's rapid growth over the last years has not been matched by a corresponding increase in its public spaces, the lake and its environs have the potential and the size to fit the role of a public plaza for the city's people and serve as a symbol for the city.
(iv) The land between Necklace Road and the railway line is zone-2; and should be earmarked for other facilities for the city including a Convention Centre, a Museum, Amusement Park, etc., to serve the educational and recreational needs of the inhabitants of the twin cities and the State.
(v) Accordingly, the Master Plan identified locations and the projects to come up these are shown in annexure-1 hereto. The Master Plan also suggested for an Environmental Impact Study and traffic and parking facilities. I submit that the Centre for Environment, Institute of Post-Graduate Studies and Research, Jawaharlal Nehru Technological University, Hyderabad has been assigned the job of conducting an Environment Impact Study and its final report is received. As per the report, the impact of the proposed activities on the environment is insignificant and the measures suggested by them will maintain the environmental quality. A letter dated 19-1-2001 is annexure-III.
(vi) Similarly Centre for Transporting Engineer, Jawaharlal Nehru Technological University has already done the Traffic and parking study and its report is referred to M/s. Charles Correa and Associates, the architectural consultant for Buddha Poornima Project.
(vi) I further submit that the Hussain Sagar lake and its surrounding areas are shown in the Zonal Development Plan as Water Body and Recreational Area. As part the Zoning Regulations notified by the Hyderabad Urban Development Authority the various uses permitted under recreational uses are:
All public and semi-public, recreational use including playgrounds, parks, exhibition and fair grounds, parking, special recreational areas like picnic spots, botanical gardens, museums, aquarium, water fronts and areas of scenic interest and regional parks. Other uses that are permissible on approval from Urban Development Authority are - Open Air Theatres, Drive-in Cinemas, Restaurants, Hotels, public utilities incidental to main uses, temporary usage for exhibition, circus, fairs, festivals, grave yards, crematorium.
6. The notification dated 4-5-2000, however, according to the State, was not a statutory notification but merely an appeal to the inhabitants of the respective corporations. According to the State, HUDA has also no authority to deal with the lakes simplicitor. According to the respondents, Hussain Sagar and its surrounding area had been earmarked for recreational purposes. The contention of the petitioners is to the effect that in identifying the said area as recreational zone, master plan or zonal development plan had been violated. It is accepted that plans are afoot for construction of Imax theatre, amusement park, office complex, State museum, and international convention center.
7. Mr. Murthy, the learned Counsel appearing on behalf of the petitioners, would submit that the 18 projects which have been undertaken by the State in the name of promotion of tourism would amount to commercial activities within the water body and wet lands adjoining thereto. The learned Counsel would submit that steps taken by the Tourism Department of the State are clearly violative of the master plan as also the Zonal Regulations framed by HUDA under the provisions of the A.P. Urban Areas (Development) Act, 1975. The learned Counsel would contend that the Tourism Department cannot tinker with the urban planning and metropolitan planning activities which would be violative of the 74th Constitution (Amendment) Act whereby and whereunder Articles 243-ZE and 243-ZF as well as items 1 and 2 of the 12th Schedule of the Constitution of India had been inserted. Construction of large structures, according to the learned Counsel, should not be allowed within the water body and the adjoining area. The learned Counsel would contend that the very stand taken in the counter-affidavit to the effect that HUDA had no jurisdiction but issue a guideline would clearly show that its authority had been denied with an ulterior motive inasmuch as the Tourism Department cannot be in-charge of urban development. Our attention has been drawn to the definition of 'development' as contained in Section 2.12 of the Act. Water fronts, as indicated hereinbefore, come within the purview of recreational use zone; no developmental activities can be carried out therein as the same would be violative of development plan. He would submit that the area having been earmarked for park or play ground, cinema theatre, shopping plaza cannot be constructed and must be kept as an open space.
8. Before us a technical report on Rapid Environmental Impact Assessment of Buddha Poornima Project Area (hereinafter referred to as 'Prof Anjamyulu report') has been submitted the relevant portions where of are;
Activity 3 South of Khairtabad Flyover:
A site of 12 acres with a good view of the lake, with access to main roads and in proximity to major hotels. To have a International Convention Centre, representing a towering landmark monument/structure symbolic of modern. Hyderabad (Cyberabad) and the rich cultural heritage of the past. The salient features of the conventional center with hospitality and hotel complexes would also have digital energy applications, landing facilities for Hover crafts, communications tower and revolving restaurants.
Activity 5 Miscellaneous pockets:
Three vacant sites along Necklace road.
Vacant sites along Necklace road could be developed into parking lots, commercial space-shopping, restaurants and/or multiplexes.
Activity 7 Exhibition Grounds:
This site is widest piece of land between the western edge of the lake and the road. It is proposed to develop into people's plazaa perfect architectural backdrop and an impressive cultural setting. It will be a place for public gatherings, cultural events, beauty pageants and music concerts, etc., and an exclusive children's plaza.
9. Our attention has been drawn to a certificate dated 11-7-1995 in Lr.No.5179/ HUDA/1995 issued by the HUDA wherein four hectares of land in TS No.5, Block No.B, Ward No.80 of Khairatabad was stated to be a water body. According to the learned Counsel, in making amendments to the master plan, the requirements of Section 12.2 of the 1975 Act had not been complied with at all. Referring to the report of Charles Correa the learned Counsel would submit that admittedly 18% of the area would be hobbling with commercial activity which cannot be permitted in water body recreation zone. It was pointed out that the impact of the shrinkage of the water body will have serious repercussions. According to Mr. Murthy by the food stalls which are going to be installed, about 50 kgs of garbage would be produced. Our attention has been drawn to clause 2.3 of the Prof Anjaneyulu, report which states:
Changes in land use pattern :--Due to the involvement of considerable area in the study, remote sensing techniques using satellite imagery have been utilised to identify the land use pattern along the Hussain Sagar lake front. Merged data of IRS IC Satellite (LISS III + PAN) was used. The categories of land use patterns include agricultural land, built up areas, waste land, water bodies, rails roads, etc.
10. This had, according to Mr. Murthy, been effected without following the procedure. Such a huge quantity of garbage will have an adverse effect on the water spread area. Together with it, according to Mr. Murthy, the vehicular pollution would still increase the temperature in the heart of the city inasmuch as thousands of vehicles would come to the area in question. Our attention in this connection has been drawn to clauses 4.1. and 4.2 of the Prof. Anjaneyulu report which are in the following terms:
Prediction of environmental impacts:
Buddha Poornima Project Area:
Prediction of environmental impacts during both the construction and the operation phase at the project site, for the proposed activities are discussed below.
Changes in land use pattern:
Land use pattern during constructional phase of the proposed activities:
During construction phase of the proposed activities a trench of about 2 m width will be dug upto a depth 6-10 ft. Reversible back filling will be done to ensure that the soil structure remains unchanged. The top soil will be replaced to form a crown which will take original shape within due course of time. Construction of the proposed activities will therefore not result in any soil erosion or change in soil structure. No impact is expected either during constructional or operational phase on soil structure or quality around Hussain Sager lake environment.
Land use land cover around Hussain Sagar lake environment:
Land use and land cover around Hussain Sagar lake environment were mapped from merged product of LISS III and PAN of IRS ID, and lime of pass was August, 2000.
The proposed tourist activities are mainly located at the vacant spaces available around Hussain Sagar water - land parcel and along the necklace road only. These activities are not directed towards water body of the Hussain Sagar. There will not be any encroachments or permanent constructional activities near the bund or within the lake environment. Watershed area of the Hussain Sagar lake will not be reduced by the proposed tourist activity center.
Changes in land use pattern of Hussain Sagar lake front and Buddha Poornima project area are namely:
Land without scrub.
Land with scrub.
Scrub area in the Sanjeevaiah Park.
The impact of these proposed activities will be negligible on the land use land cover pattern.
Air Quality due to constructional phase of project activities:
The impact of construction of project activities on the ambient air quality is mainly in terms of change in SPM, SOx, NOx, HC, etc. These impacts will be primarily due to a consequence of construction activities (clearing, trenching and back filling) and also due to movement of vehicles at the construction site.
The quantum of dust generated (re-entertainment) during vehicular movement in the constructional phase will depend upon a number of factors such as soil moisture, content, nature and composition of soil, type of vehicles and the nature of surface and vehicular load. Based on the soil composition it is estimated 0.5 -0.9 kg/vehicle - km will be re-entertained due to vehicular movement. Considering the fact that there will be few vehicles deployed at a point at any time during the brief period of construction the impact will be minimal. The other sources of dust emission are due to construction activities. These activities are of short duration. Thus, the impacts of all the above activities are for short duration, reversible and confined to small area under construction around BPP area. The impact though negative will be marginal, of short-term reversible and confined to construction site only.
Impact of Project activities in operational phase on Air Quality:
The impact on air quality during operational phase of the project activity will be mainly due to vehicular emissions SPM, SOx, NOx, HC, etc., and maximum for a period of 6-8 hours per day.
Impact due to proposed food Courts on air quality will be negligible as the food items are not prepared within the project site and foods cooked elsewhere are brought to food center. And other proposed activities like rock garden, water sports, IMAX theatre and conventional center, etc., will not have any significant impact on the air quality.
11. It was, therefore, submitted that the purported developmental activities will have a negative impact on the quality of water.
Our attention has been drawn to Prof. Anjaneyulu report which is in the following terms:
While there will not be any impact on the water quality of the proposed project area during constructional phase, there will be a slight negative impact on the water environment during operational phase. Liquid waste generated due to food courts, from the water sports, and recreational activities, public toilets, etc., are to be disposed off properly. And ground water depletion due to usage of ground water to the proposed water sports activities, parks, food Courts, etc., will have a negative impact.
Additional number of jetties proposed in the Hussain Sagar may have a negative influence on the quality of water. Precautions have to be taken up to control leakages and spillages in food Courts, etc., by regular monitoring and adaptive corrective measures.
The learned Counsel would, therefore, submit that this Court should adopt the precautionary principle keeping in view the fulfilment of the constitutional mandate as contained in Article 51A(g) as also having regard to the doctrine of public trust.
The learned Advocate-General appearing on behalf of the State, on the other hand, would submit that the State is alive to the situation. The learned Advocate-General would urge that encroachments, etc., is a matter of past and inasmuch as the areas are now secure as on eastern side of the lake there is a bund having Bank tank Road, on the western side there is NTR park and the Necklace road on the northern side; the extent of the lake would be secured from three sides. So far as the southern side of the lake is concerned the Secretariat road is nearly 100 yards away from the lake and thus there is no further threat of the area being encroached. The learned Advocate-General would contend that the roads are not part of the water spread area. Our attention has been drawn to the fact that in the NTR park which measures about 55 acres greenery would also be maintained. It was submitted that the HUDA has also issued notification on 3-3-1997 in terms whereof a part of Buddha Poornima Project land is proposed to be used for commercial purpose and the rest for recreational purpose. So far as the recreational parks are concerned, parks, fountains, etc., would be constructed and only a part of the land had been notified for use of the commercial area. According to the learned Counsel improvement of lake itself is a part of the project and the suggestions and recommendations made by the Committees shall be fully implemented. The learned Advocate-General would contend that the Government is conscious of the ecological problems and all decisions as regards development of the area had been taken keeping in view possible adverse impact in the matter. Mr. Murthy in reply has drawn our attention to the letter dated 27-11-2000 written by the petitioner to the HUDA for the purpose of showing that all informations about the change in the user plans by HUDA had been withheld.
12. Water bodies play an important role in the matter of maintenance of ecology. They act as a benefactor to the society. Any encroachment on the water bodies may be found to be detrimental to the society. The considerations for construction being allowed on or near the water bodies would depend upon many factors. Some of the important factors are: (1) the purposes for which such water bodies are used or created; (2) the extent of pollution caused to the water bodies; (3) the extent of ecological imbalance which may be caused if constructions are allowed in and around the water bodies.
For the purpose of the present case we assume that the HUDA had amended the master plan in the year 1997 and the same had been made as a recreational zone.
But we record our dissatisfaction over the way in which it has been done inasmuch as, as noticed hereinbefore, the petitioners had not been supplied with sufficient information with regard thereto.
Any citizen of India and particularly the non-Governmental organisations who intend to fight for upkeep of the ecological balance should have been informed about the development in the matter.
13. Despite such amendment by HUDA the questions posed in this application have to be looked into from a different angle viz., that every person has a fundamental right to have potable water. In terms of the provisions of the Hyderabad Municipal Corporation Act, the Municipal Corporation has a statutory duty not only to supply potable drinking water to the inhabitants of the twin cities but also have a statutory duty to see that the water bodies remain unpolluted.
14. The relevant provisions of the Hyderabad Municipal Corporation Act, 1955 may be noticed:
312. Sewage and rain water drains to be distinct :--Wherever it is provided in this Chapter that steps shall or may be taken for the effectual drainage of any premises, it shall be competent to the Commissioner to require that there shall be one drain or sullage excrementitious matter and polluted water and another and an entirely distinct drain for rain water and unpolluted sub-soil water or for both rain water and unpolluted subsoil water each emptying into Board sewer and municipal drain respectively or other places legally set apart for the discharge of drainage.
316. All drains and cesspools to be properly covered and ventilated :--(1) Every drain and cesspool, whether belonging to the Corporation or to another person shall be provided with proper traps and coverings and with proper means of ventilation.
(2) The Commissioner may, by written notice require the owner of any drain or cesspool not belonging to the Corporation to provide and apply to the said drain or cesspool such trap and covering and such means of ventilation as would be provided and applied if such drain or cesspool belonged to the Corporation.
31-9. Appointment of places for emptying of drains and disposal of sewage :--The Commissioner may cause any municipal drain to empty into a tank or other place whether within or without the city and in any manner, which he shall deem suitable for such purposes:
(b) any power conferred by this section shall be exercised in such manner as to create the least practicable nuisance;
337. Prohibition of acts contravening the provision of this Chapter or done without sanction :--No person shall-
(a) in contravention of any of the provisions of this Chapter or any notice issued for direction given under this Chapter, or without the written permission of the Commissioner, in any way alter the fixing, disposition or position of; or construct, erect, set up, renew, rebuild, remove, obstruct, stop up, destroy or change, any drain, ventilation, shaft or pipe, cesspool, water-closet, privy latrine, urinal or bathing or washing place or any trap, covering or other fitting or appliance connected therewith;
(b) without the written permission of the Commissioner, renew, re-build, or unstop any drain, ventilation-shaft or pipe, cesspool, water-closet, privy, latrine, or urinal or bathing or washing place, or any fitting or appliance, which has been, or has been ordered to be discontinued, demolished or stopped up under any of the provisions of this Chapter;
(c) without the written permission of the Commissioner, make any projection over or encroachment upon or in any way injure or cause or permit to be injured, any drain, cesspool, house-gully, watercloset, privy, latrine or bathing or washing place;
provided that nothing in this clause shall apply to any weather-shade in width not exceeding two feet over any window which does not front a wall or window of any adjoining house;
(d) drop, pass or place, or cause or permit to be dropped, passed or placed, into or any drain, any brick, stone, earth, ashes, or any substance or matter by which or by reason of the amount of which such drain is likely to be obstructed.
(e) pass, or cause or permit to be passed, into any drain provided for a particular purpose, any matter or liquid for the conveyance of which such drain has not been provided;
522. Prohibition of corruption of water by chemicals, etc :--(I) No person engaged in any trade or manufacture specified in Part IV of Schedule P shall-
(a) wilfully cause or suffer to be brought or to flow into any lake reservoir, cistern, well, duct or other place for water belonging to the Corporation or into any drain or pipe communicating therewith, any washing or other substance produced in the course of any such trade or manufacture as aforesaid;
(b) wilfully do any act, connected with any such trade or manufacture as aforesaid, whereby the water in any such lake tank, reservoir, cistern, well duct or other place of water is fouled or corrupted.
(2) The Commissioner may, after giving not less than twenty-four hours previous notice in writing to the owner or to the person who has the management or control of any works, pipes or conduits connected with any such manufacture or trade as aforesaid, lay open and examine the said works, pipes or conduits; and if upon such examination it appears that sub-section (1) has been contravened by reason of anything contained in or proceedings from the said works, pipes or conduits, the expenses of such laying open and examination, and of any measure which the Commissioner shall in his discretion, require to be adopted for the discontinuance of the cause of such contravention, shall be paid by Ihe owner of the said works, pipes or conduits, or by the person who has the management or control thereof, or through whose neglect or fault the said sub-section has been contravened but if it appears that there has been no contravention of the said sub-section, that said expenses, and the compensation for any damage occasioned by the said laying open and examination shall be paid by the Commissioner.
596. Certain offences punishable with fine :--Whoever-
(a) contravenes any provision of any of the sections, sub-sections or clauses mentioned in the first column of the table in the Schedule U, or
(b) fails to comply with any requisition lawfully made upon him under any of the said sections, such-sections or clauses, shall be punished, for each such offence, with fine which may extend to the amount mentioned in that behalf in the third column of the said table.
15. Fresh lakes and other water bodies cannot be allowed to be polluted. Essence of ecology has undergone a sea change., With the population explosion, the carninoma of planless urbanism, the now deposits of sewage and garbage, surely no creature other than man has ever managed to foul its nest in such short order.
16. The Court while issuing necessary directions in a matter of this nature has, by way of necessity, to bear in mind the provisions of Article 48-A which were inserted by Constitution (42nd Amendment) Act in the year 1977 which states: "The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country". Article 51-A(g) occurring in Chapter IV-A of the Constitution provides "It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures". Water (Prevention and Control of Pollution) Act, 1974 has been acclaimed as ushering in a new environment era. The Air (Prevention and Control of Pollution) Act, 1981 has been enacted with a view to give effect to the decisions taken in the United Nation's Conference on Human Environment held in Stockholm in 1972. Right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and clean air for full enjoyment of life. The right of the citizen to health, medical aid, etc., have been the subject-matters of various decisions of the Apex Court. At this juncture we may notice some case laws on the point.
17. In Subhash Kumar v. State of Bihar, , Bandhua Mukti Morcha v. Union of India, , Consumer Education and Research Centre v. Union of India, . Pollution Control Board v. Prof M. V. Nayudu, (, M.C. Mehta v. Union of India, , A.P. Pollution Control Board II v. Prof M. K Nayudu, 2000 (8) Supreme 318. The Apex Court in no uncertain terms had laid emphasis on maintenance of ecology and applicability of 'precautionary principle' as well as 'polluter pays' principle. In A.P. Pollution Control Board II (supra) the Supreme Court directed the State of Andhra Pradesh to identify polluting industries located within a radius of 10 kms of Himayatsagar and Osman Sagar reservoirs and to take action in consultation with the A.P. Pollution Control Board to prevent pollution of drinking water in these two reserviors. It was further directed that the State and the Board shall not permit any polluting industries within the 10 kms radius.
In Public v. State of West Bengal, , which is one of the oldest cases where the Calcutta High Court had entertained a public interest litigation in regard to maintenance of wet lands in the eastern fringe of the city of Calcutta, Banerjee, J., (as his Lordship then was) quoting extensively from the authoritative textbooks on the use of wet lands observed:
Wetland acts as a benefactor to the society and there cannot be any manner of doubt in regard thereto and as such encroachment thereof would be detrimental to the society which the Law Courts cannot permit. This benefit to the society cannot be weighed on mathematical nicety so as to take note of the requirement of the society- what is required today may not be a relevant consideration in the immediate future, therefore, it cannot really be assessed to what amount of nature's bounty is required for the proper maintenance of environmental equilibrium. It cannot be measured in terms of requirement and as such, the Court of Law cannot, in fact, decry the opinion of the environmentalist in that direction. Law Courts exists for the benefit of the society - Law Courts exists for the purpose of giving redress to the society when called for and it must rise above all levels so that justice is meted out and the society thrives thereunder.
However, thereafter the Court on certain occasions granted leave to make constructions in the wet lands.
18. In Dr. Ajay Singh Rawat v. Union of India and others, (commonly known as Nainital Lake case) a member of Nainital Bachao Samithi approached the Supreme Court under Article 32 of the Constitution seeking directions as would prevent further pollution of already suffocating Nainital. It was inter alia contended that Nainital lake is polluted because of both inorganic and organic causes. The nearby minerals viz., manganese, lead, salts, copper, cobalt and zinc made the lake toxic for life forms. The Apex Court directed:
1. Sewage water has to be prevented at any cost from entering the lake.
2. So far as the drains which ultimately fall in the lake are concerned, it has to be seen that building materials are not allowed to be heaped on the drains to prevent siltation of the lake.
3. Care has to be taken to see that horse dung does not reach the lake. If for this purpose the horse-stand has to be shifted somewhere, the same would be done. The authorities would examine whether trotting of horses around the lake is also required to be prevented.
We part with the hope that the butterfly would regain its beauty and would attract tourists not only in praesenti but in future as well, which would happen if the beauty would remain unsoiled. Given the will, it is not a difficult task to be achieved; the way would lay itself out. Let all concerned try and try hard. Today is the time to act; tomorrow may be late.
19. Yet again in M.C. Mehta v. Union of India,
(Badkhal and Surajkund Lakes case) it was held:
The two expert opinions on the record -by the Central Pollution Control Board and by the NEERI- leave no doubt on our mind that the large scale construction activity in the close vicinity of the two lakes is bound to cause adverse impact on the local ecology. NEERI has recommended green belt at one km radius all around the two lakes. Annexures A and B, however, show that the area within the green belt is much lesser than one km radius as suggested by the NEERI.
20. In M.C. Mehta v. Union of India, , it was
The functioning of ecosystems and status of environment cannot be the same in the country. Preventive measures have to be taken keeping in view the carrying capacity of the ecosystems operating in the environmental surroundings under consideration. Badkhal and Surajkund lakes are popular tourist resorts almost next door to the capital city of Delhi. ... The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large scale construction in the vicinity of these tourist resorts may disturb the rain water drains which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed.
21. In M.C. Mehta v. Union of India and others, , the Apex Court overruled the objection raised against the closure of the mines by the State of Haryana without affording any opportunity to the lessees of the mines by granting them an opportunity of being heard in Court and fount it reasonable to direct stoppage of mining activity within 2 kms radius of the tourist resorts of Badkhal and Surajkund and inter alia directing that no constructions of any type shall be permitted within 5 kms radius of the Badkhal lake and Surajkund and further that ail open areas shall be converted into green belts.
22. In Mallikarjuna Sharma and others v. The Govt. of A.P. and others, 1996 (3) An WR 253, Nazir, J., lamented inaction on the part of the A.P. Pollution Control Board, Water Supply and Sewerage Board and Municipal Corporation of Hyderabad in the matter of maintenance of ecology. It was observed:
But we are mainly concerned with the orientation of results. So long as the parameters of pollutants are not brought down to the level of tolerable limits by giving them the necessary treatment before discharging the same from any outlet, all such assurances and undertakings are meaningless. The Pollution Control Board instead of taking pleasure by being a party to the pollution control measures expected to be taken or having already been taken by the Sewerage Board, should have given a direction in exercise of powers conferred on the Pollution Control Board by the provisions of the Pollution Control Act to treat whatever effluents, domestic or industrial, to the tolerance limits acceptable to the Board and should have set a deadline for treating the effluents accordingly within the tolerance limits so that prosecution could be launched against the person/persons responsible in the Sewerage Board if the necessary facilities were not provided before the deadline. These were the elementary requirements which should have been complied with by the Pollution Control Board within three months from the enactment of the statute, or at least within a reasonable time thereafter so as to ensure that the untreated effluents were not discharged by these agencies. In any case, the Pollution Control Board would do well to keep its eye on the progress of the proposed comprehensive scheme for treating the effluents before discharging the same from any outlet in the city by the Sewerage Board, which is not in conformity with the tolerance limits, which could be laid down by the Pollution Control Board.
23. The Court disposed of the matter upon issuing various directions.
24. In Indian Council for Enviro-Legal Action v. Union of India, 1996 (3) Supreme 741, the Apex Court held that the notifications issued by the competent authority must be implemented. It lamented:
With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming aware of the need to protect environment. Even though, laws have been passed for the protection of environment, the enforcement, of the same has been tardy, to say the least. With the Governmental authorities not showing any concern with the enforcement of the said Acts, and with development taking place for personal gains at the expense of environment and with disregard to the mandatory provisions of law, some public spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the Courts for preventing environmental degradation and thereby, seeking to protect the fundamental rights of the citizens, is now well settled by various decisions of this Court. The primary effort of the Court, while dealing with the environmental related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The Courts, in a way, act as the guardian of the people's fundamental rights but in regard to many technical matters, the Courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though, it is not the function of the Court to see the day to day enforcement of the law, that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the Courts as of necessity have had to pass orders directing the enforcement agencies to implement the law.
25. In Virender Gaur and others v. State of Haryana and others, , the Apex Court reiterated the obligation that the Government as also the municipality have to maintain and protect environment - man made as well as natural. In Dr. B.L Wadehra v. Union of India and others, and in M.C. Mehta v. Union of India, , the right of a citizen to have constitutional as also statutory right to live in a clean city was emphasised. It is now well settled that economic development should not be allowed to take place at the cost of the ecology. In Indian Council for Enviro-Legal Action v. Union of India, the Apex Court held:
.......While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment.
26. Although the law in this regard is no longer res integra, the scope of judicial review even in these matters being limited, the Court must remind itself that all decisions of the State even in such matters cannot be brought into the field of Wednesbury unreasonableness. Non-justiciable issues firstly cannot be scrutinised; secondly, the Court would not tread into the area of disputed questions of fact and in a given case would take the assistance of expert bodies. Such expert bodies must be neutral ones.
The Court also must bear in mind that the doctrine of sustainable development would mean the development which is in consonance with maintenance of ecological balance. In most environmental cases there is need for neutral scientific expertise as an essential input to the judicial decision making. These cases require expertise at high levels of scientific and technical sophistication. The Central or the State Governments, to the best knowledge of this Court, have not yet set up any ecological sciences research group who could act as information bank for the Court and the Government departments, and generate new informations according to the particular requirements of the Court for the concerned Government departments despite the observations made to that effect in M.C. Mehta v. Union of India, . With a view to ensure that there is neither danger to the environment nor to the ecology and at the same time ensuring sustainable development it is considered necessary that scientific and technical aspects for investigation may be referred to an expert body for investigation and opinion having technical expertise in environment matters whose investigation and analysis offacts and opinion on objections raised by the parties would give adequate help to the Courts and also the needed reassurance.
27. In MC. Mehta v. Union of India, (1997) 2 SCC 353 (Taj Mahal case) it was held:
The objective behind this litigation is to stop the pollution while encouraging development of industry. The old concept that development and ecology cannot go together is no longer acceptable. Sustainable development is the answer. The development of industry is essential for the economy of the country, but at the same time the environment and the ecosystems have to be protected. The pollution created as a consequence of development must be commensurate with the carrying capacity of our ecosystems.
28. Hussain Sagar is also required to be protected for preventing flood and in the event of water logging of the city as the rain water normally would be deposited in the lake only when the rain water cannot find its way in the water bodies, a flood like situation may arise. Of course, having regard to the fact that the precautionary principle had not been adhered to, a great deal of encroachments had been made. The water of Hussain Sagar by reason of immersion of the idols or otherwise is also being polluted although it has become free from industrial effluents coming into it. By a different order, that aspect of the matter is being dealt with. From the reports submitted before us, it appears, that various aspects of the matter having regard to the decisions of the Apex Court had not been taken,
As noticed hereinbefore, pollution in the lake is admitted. It is beyond any cavil of doubt, by reason of several decisions of the Apex Court, that burden of proof would be upon the polluter to show that any developmental activity which may be undertaken by it would be a sustainable one.
29. We, therefore, are of the opinion that no further permanent structures including those involving commercial activities may be allowed to be raised on or near the water spread or catchment area.
However, the other aspects of the proposed activities viz., construction of an amusement park etc., may be allowed. But prior thereto, the A.P. Pollution Control Board must go into all aspects of the matter including the questions raised herein and certify that creation of such entertainment parks, etc., for the purpose of encouraging tourism would result only in sustainable development which would not create any ecological imbalance.
30. The writ petition is disposed of with the aforementioned directions. There shall be no order as to costs.