WHY ARE WE FIGHTING FOR YAMUNA?
A) RIVER YAMUNA AN IMPORTANT NATURAL RESOURCE THREATENED BY CONTINUOUS ENCROACHMENT ON ITS FLOOD PLAIN AND RIVER BED
It is well known that river Yamuna is the Life line of the city of Delhi. Its protection and preservation of its flood plain and river bed is critical for it to continue to meet the water needs and safety from floods, of the citizens of Delhi. Unfortunately encroachments over the flood plains / river bed continue to threaten the river and its ability to meet the needs of the growing population in the city.
- River Yamuna in existence for almost 50 million years is today critically threatened by acts of omission and commission by the state authorities.
- Flood plains are essential to ensure ground water recharge on an annual basis.
- Expert as well as MOEF and DUAC reports / observations have highlighted the importance of the river and ecological value of its flood plains and recommended the flood plain / river bed to be kept inviolate as under:
“The conservation of rivers requires that they are treated as ecosystems and their ecological integrity (physical, hydrological, chemical, and biological characteristics and natural functions) is maintained. All rivers interact laterally with adjacent lands (floodplains) that are periodically flooded by the river with varying frequency and amplitude. Floodplains are an integral part of river ecosystems and perform several major functions.” (MOEF document Para 1 on page 145 of the Petition).
“Wetlands have been called as ‘kidney’ of the landscape. The role of this ecosystem through its diverse and multiple functions becomes crucial if it is in the vicinity of a metropolitan congested city like Delhi.” (Line 6 – 9, Page 101 of the Petition)
“These biologically productive areas are most threatened and are being converted for habitation, slums and industries. This is being done because of the fact that ecological functions of the floodplains remain unacknowledged, unaccounted and unpriced.” (Line 13-16, Page 101 of the Petition).
“ to maintain the ground water recharge potential of the floodplains, it is imperative to prevent any fresh civic structures to come up in these areas. This is necessary because fresh ground water resources present in the floodplain and connected aquifers in the city are replenished annually due to the floodplains. Water is already a scarce commodity and in coming years it is going to be more scarce and precious. Any human activity impairing the water recharge function of the floodplain ecosystem will create problems not only for the present but future generation too.” (Para 2 on Page 116 of the Petition).
“Channelisation of the river in the Delhi stretch should not be carried out. Channelisation will not only lead to reduction of ground water reserve, it will completely stop the ground water recharge that occurs from the flood plains.” (Para 3 on Page 116 of the Petition).
- Flood plains are essential to ensure safe spread and passage of flood waters
“The vast changes in the ground situation since the last high flood of 1978 have many serious adverse implications for Delhi. It has been observed in recent years that the water levels at Delhi for lesser magnitudes of flow are higher than in the past. The next high flood in the Yamuna could have very serious consequences for the nation’s capital area.” (Para 3 on Page 201 of the Petition)
“There is significant intrusion in the river bed and flood plain much of which seems politically organized and government condoned. This impermissible occupation is constantly on the increase. There are even some government schemes of this nature. The DDA plan for channelisation of the Yamuna and commercial use of the reclaimed area should be viewed in this context.” (Para 2 on Page 202 of the Petition)
- Flood plains being on unstable substrata are not suitable for any construction of permanent nature
“The Delhi region is considered earthquake prone and has been hit by several earthquakes since historical times.” (Para 7 0n Page 224 of the Petition)
“The CWG village sits over an unstable base of deep sediment layer. The first relatively stable layer of consolidated clay begins at 40 m below ground level (BGL), while bedrock begins at depths around 100 m BGL. The site invariably lies in the most seismically vulnerable part with the highest peak ground acceleration expected in the city.” (Para 3 of Page 219 of the Petition)
B) NATURE OF ENCROACHMENTS
- DMRC is constructing the polluting Yamuna Metro Depot and allied structures in Sub Zone 05 and the Metro Mall in Sub Zone 06.
- DDA is constructing the Residential Complex and allied structures in the name of Games Village in Sub Zone 06.
C) RIVER YAMUNA FLOOD PLAINS HAVE BEEN NOTIFIED AS PROTECTED FOR GROUND WATER RESOURCE BY THE CENTRAL GROUND WATER AUTHORITY (CGWA)
The CGWA, a statutory authority created under the Environment Protection Act, 1986 by the MOEF in pursuance of the orders of the Hon’ble Supreme Court has notified in September 2000 the entire Yamuna Flood plain in Delhi as protected for ground water management and development.
“considering the need for protecting the ground water resource and to ensure further development activities in consistence with protection and preservation of the ground water resource hereby declare the entire Yamuna flood plain area in the National Capital Territory of Delhi as “Notified Area” …
No person/organisation/ agency (Govt. or non Govt.) shall undertake any scheme / project of ground water development and management in the above said region without prior permission of the Authority.” (Para 4, 5 on Page 119 of the Petition)
a) No permission from CGWA has been taken by the DDA or DMRC for their construction activities including drilling of new Ranney well for the Games Village by the DDA (Page 7 of Petitioner’s Rejoinder dated 19.11.2007 to the reply filed by DDA).
b) It is on record that DJB is to build a new Ranney well in the area for supply of water to the proposed Games Village (para iii at Page 187 of the Petition) which would be illegal without a prior approval of the CGWA. So contention of the DDA in their affidavit that “it is denied that there is any development in violation of legal and constitutional protection accorded to the river bed” is wrong, illegal and misleading. (para M at page 38 of the reply Affidavit by DDA)
c) Contention of the MOEF in their affidavit that “In any event, to the best of knowledge of MOEF, no permission from CGWA is required with respect to this site” (Para 33 on Page 35 of MOEF Affidavit dated 16.11.2007) betrays a serious lack of information of a statutory requirement and is symptomatic of the callous attitude of the MOEF shown in such important matter.
D) WATER DEMAND AND SUPPLY SITUATION IN DELHI
The water demand and supply situation in Delhi is grim to say the least. And the situation is going from bad to worse with the rise in population in the city. The remaining flood plain in the city is the only insurance for sustained supplies extracted from the under ground.
“It is known that the DJB extracts 100 MGD (million gallons per day) from the under ground to supply to the city” (Para 3 on Page 1.12 of NEERI 2005 report)
“Yamuna flood plain in NCT of Delhi can provide 200 MGD through 1000 shallow tube wells” (Fig. 3.14 on Page 3.96 of NEERI 2005 report)
According to an estimate of water budget for NCT – Delhi (page 17,18 of the Petition):
Year / Population
2006 / 16.5 mill
2011 / 19.0 mill
2021 / 23.0 mill
Demand (1000 cmd)
4935
6038
8868
Supply (1000 cmd)
3827
4008
4008
GAP (1000 cmd)
1108
2030
4860
The gap between demand and supply is not only going to increase but the supply situation will be awfully short.
E) NEERI REPORT OF 1999
National Environmental Engineering Research Institute (NEERI), Nagpur was commissioned a study by the DDA to prepare an ‘Environmental Management Plan’ with an over all objective of the rejuvenation of the river Yamuna in NCT of Delhi in August 1998. (Para 5 on Page 1 of NEERI 1999)
- NEERI submitted its initial report (Phase I report) limited to Sub Zone 06 and 07 (3 km stretch between new railway bridge and proposed ILFS-NOIDA bridge) of the river in June 1999.
- It delineated ‘Guidelines for Development’ in the flood plains of 3 km stretch as above and permitted only recreational, cultural, heritage, religious and aesthetic requirements of NCT - Delhi. (Para 4 on Page 12 of the NEERI 1999 report).
- NEERI 1999 suggested two alternative land use plans. After discussions Alternative II was agreed (Last Para on Page 14 of NEERI 1999 report)
- Alternative II dealt with modified landuse for an area of around 83 ha in Pocket III in the flood plains in the Eastern bank in sub Zone 06. (Table 3 page 19 of NEERI 1999)
- For ground water recharge, the NEERI 1999 report suggested that the suggested green belt, recreational areas and ‘camping site’ (16.5 ha) (Index no.13 in Table 3 page 19 of NEERI 1999 report) should not alter the topography of the flood plain and the water detention and retention systems be improved to improve the groundwater recharge. (Page 21). It is notable that the current plans of DDA are to convert the identified camping site into residential and commercial complex.
- The practice of fly ash disposal on the flood plain area should be stopped immediately. (Para 7 on Page 20 of NEERI 1999 report). DMRC is acting contrary to this guideline.
- Alternative II meticulously follows Precautionary approach considering the sensitiveness of the task and fragility of the region. (Para 3 of Page 22 of NEERI 1999 report).
- It is a fact that in 1999 the provisions of EIA (Environmental Impact Assessment) Notification 1994 of MOEF were not attracted as mentioned (Last Para on Page 22 of NEERI 1999 report). But the fact is that in 2004 the EIA Notification was amended and hence since 2004 the nature of the constructions planned by DDA in the river bed attracts the provisions of the said Notification which mandates a prior EC (Environmental Clearance) from MOEF to all such new constrictions.
- The Expert Appraisal Committee (EAC) of the MOEF while appraising the proposal from DDA for the Games Village noted the recommendations of the NEERI 1999 report and said that “Specifically NEERI recommended permitting proposals for meeting recreational, cultural, heritage, religious and aesthetic requirements. The proposed hotel and residences are not covered by these recommendations.” (Para 3 of Page 169 of the Petition).
- It is notable from above that the NEERI 2005 report which had been submitted to DDA in October 2005 had clearly not been provided to the MOEF by the DDA along with its proposal, submitted almost a year later on 5.10.2006 (Line 2 on Page 167 of the Petition), for seeking prior EC from the MOEF. (This is a case of concealment of ‘material information’ by the DDA from the MOEF making all the clearances liable for rejection vide para vi of para 8 of the EIA Notification dated 14 September 2006 – See page 84 and 85 of DMRC reply dated 22.10.2007).
F) NEERI REPORT OF 2005
NEERI submitted to DDA its final report called ‘Environmental Management Plan for Rejuvenation of River Yamuna in NCT’ in October 2005.
- The active flood plain area in NCT covers an area of 97 sq km. (Last Para on Page 1.3 of NEERI 2005 report). Active flood plain and Flood prone areas have been defined on Para 1 and 2 on Page 1.4.
- Fig. 1.8 a, on Page 1.65 shows the Active / present flood plain in Delhi.
- NEERI considered the CWPRS proposal on river channelisation to be non-viable. (Para 3 on Page 2 of NEERI 2005)
- The Basic purpose of the river bed is concerned with providing safe passage of anticipated maximum flood flows. (Para 4 on Page 2 of NEERI 2005).
- The plains of river Yamuna have experienced severe floods in the years of 1924, 1947, 1956, 1978, 1988, and 1995. The Yamuna crossed its danger level 25 times during the last 33 years (Para 4 on Page 3.7 of NEERI 2005)
- Since hydrodynamic studies showed the carrying capacity of the river in NCT is just adequate for 100 years return flood, encroachment and alteration of the river bed topography must be restricted to avoid catastrophic consequences in future. (Para 5 of Page 3 of NEERI 2005 report).
- Alteration of bed topography can change the hydrodynamics of the river to cause excessive flooding of the river bed and the adjoining areas. The effect may be treated as most serious. (Detailed Landuse Image Analysis on Page 1.21 and 1.22 of NEERI 2005 report).
- Observation in Para 2 on Page 1.22 and related picture in Fig. 1.29 and 1.36 on Page 1.81 and 1.87 show the fact that NEERI was fully in the know of both the new bund in Sub Zone 06 and the then under construction Akshardham complex. Clearly the contention of NEERI on Page in its ‘Assessment Report’ of 2008 that it was not aware of and had not taken into consideration the new bund in Sub Zone 06 while formulating its recommendations for the 2005 is a lie spoken under pressure.
- Page 1.9, page 1.12, page 1.14, page 1.37 (Table 1.15), page 1.38 (Table 1.16), page 1.40 (Table 1.18), page 1.42 (Table 1.20), page 1.43 (Table 1.21), Table 1.16 (page 1.38), Table 1.20 (page 1.42) carries data which is for a period post 2000. All the google images from page 1.81 – 1.93 are from the year 2005. Clearly NEERI has considered and analysed data and images from the period later than 2000 before it finalized and submitted its report in 2005.
- It is notable that only 0.02% of open land was remaining in river bed in the city area in September 1988 floods. (Fig. 1.18 on Page 1.75 of NEERI 2005 report).
- The river must have the required width for a maximum historical flow because its slope cannot be changed in order to take out floodwater and surface runoff from the area without the risk of inundating the developed localities. Therefore the natural floodway must be respected. (Para 1 and 3 on Page 3.2 of NEERI 2005 report)
- Unless the channel dredging and subsequent dressing of river bed as proposed in the study is followed, no modification of topography should be permitted. (Para 1 on Page 3.33 under General Guidelines of NEERI 2005 report). Both DDA and DMRC are acting contrary to this guideline.
- The developmental proposals for sub zones 05 and 06 did not permit any residential, industrial or commercial use. (Para 7 on Page 3.29 and Para 4 on Page 3.30 of NEERI 2005 report). Both DDA and DMRC are acting contrary to these proposals.
- The stretch has substantially lost its carrying capacity due to long term silting. The present width of the river is desirable to maintain for conveying maximum flow to avoid flooding of adjoining flood plains (Para 3 on Page 3.32 of NEERI 2005 report).
- No residential or industrial facilities requiring permanent structures should be provided on the river bed. (Para 4 on Page 3.33 of NEERI 2005 report). Both DDA and DMRC are acting contrary to this guideline.
- Access roads shall be created at the river bed level. (Para 5 on Page 3.33 of NEERI 2005 report). Both DDA and DMRC are acting contrary to this guideline.
G) MALAFIDE CHOICE WITHOUT LOOKING FOR ALTERNATIVE SITES AND MANDATORY APPROVALS OF SITE IN RIVER BED / FLOOD PLAIN BY DDA AND DMRC FOR CONSTRUCTIONS
After the NEERI 2005 report had clearly prohibited any permanent structures of residential and industrial nature in the river bed, it was wrong for the DDA to persist with a choice of area in river bed / flood plain for the Games Village, no matter what kind of structure was already standing in the same. Two wrongs do not make a right.
It is on record that DDA did not consider any other alternate site for the Games Village which proves the malafide in favour of the site in the river bed. (Para 1 on Page 169 of the Petition)
The risks involved with urbanization of the river belt had been highlighted and objected to by DUAC (Delhi Urban Arts Commission), which is a statutory body, way back in 1997 in response to a Public Notice by the DDA for changing the land use of 35 ha area (this is the area under consideration by this petition) in river Yamuna:
“The urbanization of the river belt it is observed would have serious repercussions on the ecology and environment of Delhi including its metropolitan areas in question. The area in question forms the natural flood plain basin of river Yamuna and no attempt should be made in an adhoc manner to change its use on a piecemeal basis. Any such proposal is likely to create major imbalance of the entire ecology of the water shed wet land and would adversely affect the underground aquifer.” (Para 2 on Page 78 / 488 of the counter affidavit by DDA)
Change in land use of 16.5 ha in Sub Zone 06 from agriculture and water body to Residential and Commercial carried out on 18 August 2006 (Page 110 of the DDA reply) is malafide as NEERI had in October 2005 recommended against it. The area in question had been earmarked only for ‘Camping site’.
On the same grounds the permanent allotment of land by DDA in river bed to DMRC in January 2006 (Page 21 of DMRC reply dated 22.10.2007) much after the receipt of NEERI 2005 is malafide.
It is on record that DDA has no approval from Yamuna Standing Committee of the Central Water Commission for the construction of the Games Village and allied structures in the river bed, which is a mandatory requirement. (Para 3 on Page 6 of the Petitioner’s rejoinder dated 19.11.2007 to DDA reply)
DDA has no approval from the CGWA for the construction of Games Village and allied structures, which is a statutory requirement. (Para 2 of Page 7 of the Petitioner’s rejoinder dated 19.11.2007 to DDA reply)
H) ILLEGAL AND INVALID ENVIRONMENTAL CLEARANCE BY MOEF TO DDA FOR THE SITE IN RIVER BED
Environmental Clearance (EC) from the Ministry of Environment and Forests (MOEF) is mandatory under the EIA Notification of 2006 for all such new constructions that are listed in the Schedule. ‘Building and Construction projects’ find a mention (Page 95 of DMRC reply)
MOEF has constituted independent Experts Committees called the Expert Appraisal Committee (EAC) to review all proposals for EC in accordance with para 5 of the EIA Notification of 2006. (Para 5 at Page 80 of DMRC reply)
It is stipulated that the regulatory authority shall normally accept the recommendations of the EAC. In the event of a disagreement there is a laid out process of consultation between the EAC and the Regulatory authority. (Para 8 (ii) of the EIA Notification)
It is stipulated that any deliberate concealment of material information for appraisal shall make the application liable for rejection and cancellation of prior EC following a due process (Para 8 (vi) on Page 85 of DMRC reply)
The EAC in the case of Games Village first recommended a change in the site. (Para 4 on Page 168 of the Petition)
The EAC on finding that definite information was lacking on several issues recommended a fresh study with a set terms of reference (Para 5 on Page 168 of Petition). It is notable that the study done by CWPRS in February 2007 addressed and that too in a deficient manner (Page 179 under sub head ‘our comments’ by MOEF in the Petition) only one aspect of the suggested study.
The NEERI 2005 report was material to the appraisal of the DDA’s application by the EAC. The fact that the EAC refers only to the NEERI 1999 report (Para 3 on Page 169 of the Petition) points to deliberate concealment of NEERI 2005 report by DDA from MOEF and EAC. If NEERI 2005 was available to the EAC, the rejection of the application and insistence on selection of an alternative site would have been automatic and logical. Then even the use of Precautionary Principle by the EAC as under would not have become necessary.
The EAC going by ‘Precautionary Principle’ suggested that adopt dismantable structures, unless detailed studies lead to the conclusion that the proposed structures can be left behind permanently, the proposal should proceed with the assumption that the river bed may have to be restored to the river (Para 2 on Page 170 of the Petition). NEERI 2005 report was in fact such a detailed study which had been with held from the EAC by the DDA. The CWPRS study of February 2007 which had been commissioned by the DDA on a limited aspect of flooding to meet the EAC concern of lack of definite information on several aspects. By no stretch of imagination could this limited study by CWPRS of February 2007 be treated as ‘detailed studies’ as called for by the EAC.
The MOEF accordingly issued the first EC dated 14 December 2006 suggesting raising of structures which are not of permanent nature (Point vi on Page 187 of the Petition)
The CWPRS study of February 2007 was commissioned by DDA on the recommendations of the EAC. MOEF changed and diluted the EC based on this report to allow permanent constructions in the river bed. There is nothing on record to suggest that the CWPRS report was ever referred back to the EAC by the MOEF for appraisal as required by para b (ii) of EIA Notification on Page 84 of the DMRC reply. The entire dilution of the EC after 14 December 2006 is based on several meetings and consultations between the officials of the MOEF and DDA during which on three separate occasions the DDA served ultimatums on the MOEF (Page 172 to 185 of the Petition).
I ) MOTIVATED AND MISLEADING REPORT CALLED ASSESSMENT REPORT BY NEERI IN 2008
A site visit was made by the Hon’ble Court on 3 January 2008.
Consequently the Ministry of Science and Technology (NEERI is an agency under it) and the DDA met NEERI on 9 January 2008 to pressurize NEERI to prepare and present a new report called the Assessment Report on 24 January 2008 to mislead and misinform the Hon’ble Court. (Petitioner’s rejoinder dated 8.2.2008 to the affidavit by DDA dated 29.1.2008).
J ) CREATION OF BUND CANNOT CHANGE THE BASIC CHARACTER AND ROLE OF A FLOOD PLAIN
It is well known that a flood plain is a feature of the natural topography of the land and the manner in which the river has flowed over centuries. So a man made structure like a bund cannot change the basic character or role of a flood plain. (Note by Prof. Brij Gopal of JNU on page 20 – 22 of the Petitioner’s Rejoinder dated 8.2.2008)
This fact was also upheld by the Yamuna Standing Committee in a similar case in the past. (Page 32 of DMRC reply dated 22.10.2007)
K ) ACTIVITIES OF DDA AND DMRC IN VIOLATION OF PREVIOUS ORDERS ISSUED BY THE HONORABLE COURTS
The activities of DDA and DMRC are violative of various Court orders.
L ) FALSE AND MISLEADING STATEMENTS BY MOEF AND DDA
The rejoinder Affidavits filed by DDA and MOEF to the petition abound in false and misleading statements. Some examples as under would suffice:
“No other suitable site available is available for locating the CWG village” (Page 2 F of DDA rejoinder). “It is denied that the site was chosen in an arbitrary manner without considering any alternative” (Para 6.2 on page 32 of DDA rejoinder to the Petition). The fact is that DDA never ever bothered to look for an alternative site and rejected even MOEF suggestion in the matter. The DDA has not produced any document during the hearing of the case to support its contention in the matter.
“There is no loss of recharge of ground water”. (Line 22 on page 28 of DDA rejoinder to the Petition) When the DDA does not even know about the extent of such a loss (Para 6 on Page 169 of the Petition) then how can it claim such a thing?
“Recommendations of NEERI have not been violated” (Line 23 on Page 28 of DDA rejoinder to the Petition). The fact is that DDA have violated the recommendations of both the NEERI 1999 report (by changing the land use from Camping site to residential and commercial of 16.5 ha of the river bed) and of NEERI 2005 report (by raising permanent residential structure in the river bed)
“As far as study by NEERI 2005 on river Yamuna is concerned it is submitted that the same has been taken into consideration at the time of planning the Commonwealth Games Village” (Para 6.1 on Page 31 of DDA rejoinder to the Petition). If this were the case then DDA would not have planned for permanent residential structures in the river bed / flood plain.
“the detailed study by CWPRS had suggested that permanent structures could be constructed and left behind” (Para 1 on page 18 of MOEF rejoinder to the Petition). Nowhere in the study has CWPRS said so. This also proves that the MOEF was oblivious of the existence of the detailed study called NEERI 2005 report.
“it is for the elected government to decide what project should be undertaken for the benefit of the people” (Para 1 on page 21 of the MOEF rejoinder to the Petition). The fact is that the Games Village is a planned real estate to be sold off after the event. So how can such a project be for the benefit of the people at large.
“Even the Central Water Commission had conveyed its approval dated 25.4.1997 for utilizing the said area for convention centers, spiritual parks and hotels etc” (Line 29, 30 of the Page 23 of the MOEF rejoinder to the Petition). Nowhere has the CWC conveyed this in the said approval.
“It is denied that there is any threat to the ecology”( Para 4 on page 28 of MOEF rejoinder). For the MOEF to make such a statement is surprising to say the least.
“The NEERI report of 2005 itself provides for construction / development activities in the said area” (Para 32 on Page 35 of MEOF Rejoinder to the Petition). Clearly the facts are contrary to the contention of the MOEF. This proves that MOEF had no access to the NEERI 2005 report.
L ) CONSTRUCTION OF AKSHARDHAM BEGAN BEFORE ENVIRONMENTAL CLEARANCE (EC) FROM MOEF BECAME MANDATORY FOR NEW CONSTRUCTIONS
It is to be noted that when Akshardham was created beginning the Year 2000, the then EIA Notification of 1994 did not cover such constructions and hence a EC by MOEF was not mandatory.
Such constructions were brought into the domain of EIA Notification only in 2004 by an amendment by the MOEF in the EIA Notification. Hence prior EC for Akshardham was not an issue before the Hon’ble SC when it decided on a petition challenging the construction of Akshardham in the river bed.
M ) VIOLATION OF DOCTRINE OF PUBLIC TRUST AND PRECAUTIONARY PRINCIPLE BY DDA AND DMRC
All state agencies and authorities have a constitutional duty (Article 14 and 21, Article 48 A) to safeguard the natural resources including rivers.
In absence of a statutory safeguard (applicable to rivers) it is the Doctrine of Public Trust and Precautionary Principle alone which can and should guide the authorities. In the present case the authorities have
clearly failed in their constitutional duties by acting contrary to the Doctrine of Public Trust.
