Ashok Bhushan, J. - (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. Man has constantly to sum up experience and go on discovering, inventing, creating and advancing. In our time man's capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance the qualify of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment. We see around us growing evidence of manmade harm in many regions of the earth; dangerous levels of pollution in water, air, earth and living beings; major and undesirable disturbances to the ecological balance of the biosphere; destruction and depletion of irreplaceable resources; and gross deficiencies harmful to the physical, mental and social health of man, in the manmade environment; particularly in the living and working environment. A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes. There are broad vistas for the enhancement of environmental quality and the creation of a good life. What is needed is an enthusiastic but calm state of mind and intense but orderly work. For the purpose of attaining freedom in the world of nature, man must use knowledge to build in collaboration with nature a better environment. To defend and improve the human environment for present and future generations has become an imperative goal for mankind - a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of worldwide economic and social development. To achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts. Individuals in all walks of life as well as organizations in many fields, by their values and the sum of their actions, will shape the world environment of the future. Local and National Governments will bear the greatest burden for large-scale environmental policy and action within their jurisdictions. International co-operation is also needed in order to raise resources to support the developing countries carrying out their responsibilities in this field. A growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, will require extensive co- operation among nations and action by international organisations in the common interest. The Conference calls upon the governments and peoples to exert common efforts for the preservation and improvement of the human environment, for the benefit of all the people and for their posterity." Article 48-A of the Constitution of India has been inserted in the Constitution by Constitution (Forty- second Amendment) Act, 1976 under Part IV of the Constitution "Directive Principles of State Policy. Article 48-A is to the following effect:- "[48-A. Protection and improvement of environment and safeguarding of forests and wild life. - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.]" Article 48A castes an obligation and duty on the State to protect and improve the environment. All State action has to in terms with the constitutional requirement as contained in Article 48A. By Forty-second Amendment of the Constitution Part IV-A (Fundamental Duties) was also inserted as Article 51A. Article 51-A sub-clause (g) is relevant, which is extracted below:- "51-A. Fundamental duties.- It shall be the duty of every citizen of India - (a) ..... (b) ..... (c) ..... (d) ..... (e) ..... (f) ..... (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;" Thus the State as well as every citizen is under duty to protect and improve the environment. To protect the environment and to conserve the nature various enactments have been made by the Parliament from time to time. The Parliament felt that although there are existing laws dealing directly or indirectly with several environmental matters, it is necessary to have general legislation for environmental protection. It is useful to refer to the statement of objects and reasons of the Environment (Protection) Act, 1986, which is quoted below:- "Statement of Objects and Reasons.-Concern over the state of environment has grown the world over since the sixties. The decline in environmental quality has been evidenced by increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life support systems. The world community's resolve to protect and enhance the environmental quality, found expression in the decisions taken at the United Nations Conference on the Human Environment held in Stockholm in June 1972. The Government of India participated in the Conference and strongly voiced the environmental concerns. While several measures have been taken for environmental protection both before and after the Conference, the need for a general legislation further to implement the decisions of the Conference has become increasingly evident. 2. Although there are existing laws dealing directly or indirectly with several environmental matters, it is necessary to have a general legislation for environmental protection. Existing laws generally focus on specific types of pollution or on specific categories of hazardous substances. Some major areas of environmental hazards are not covered. There also exist uncovered gaps in areas of major environmental hazards. There are inadequate linkages in handling matters of industrial and environmental safety. Control mechanisms to guard against slow, insidious build-up of hazardous substances especially new chemicals in the environment, are weak. Because of a multiplicity of regulatory agencies, there is need for an authority which can assume the lead role for studying, planning and implementing long term requirements of environmental safety and to give direction to, and co- ordinate a system of speedy and adequate response to emergency situations threatening the environment. 3. In view of what has been stated above, there is an urgent need for the enactment of a general legislation on environmental protection which inter alia, should enable co-ordination of activities of the various regulatory agencies, creation of an authority or authorities with adequate powers for environmental protection, regulation of discharge of environmental pollutants and handling of of hazardous substances, speedy response in the event of accidents threatening environment and deterrent punishment to those who endanger human environment, safety and health. The Bill seeks to achieve the above objects." Section 2(a) defines ''environment'. Section 3 empowers the Central Government to take all such measures as it deems necessary for the purposes of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. Section 3(3) empowers the Central Government to constitute authorities for the purposes of exercising and performing such of the powers and functions of the Central Government under the Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order. Section 3(1), 3(2)(i) and 3(2)(v) of the Environment (Protection) Act, 1986 are as follows:- "3(1). Power of Central Government to take measures to protect and improve environment. - (1)Subject to the provisions of this Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. 3(2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:- (i) co-ordination of actions by the State Governments, officers and other authorities- (a) under this Act, or the rules made thereunder; or (b) under any other law for the time being in force which is relatable to the objects of this Act; (ii) ..... (iii) ..... (iv) ..... (v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards." Rules have been framed in exercise of power under Sections 6 and 25 of the Environmental (Protection) Act, 1986, namely, Environmental (Protection) Rules, 1986. Rule 5, which is relevant is quoted below:- "5. Prohibition and restriction on the location of industries and the carrying on of processes and operations in different areas.-(1) The Central Government may take into consideration the following factors while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas: (i) Standards for quality of environment in its various aspects laid down for an area. (ii) The maximum allowable limits of concentration of various environment pollutants (including noise) for an area. (iii) The likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted. (iv) The topographic and climatic features of an area. (v) The biological diversity of the area which, in the opinion of the Central Government needs to be preserved. (vi) Environmentally compatible land use. (vii) Net adverse environmental impact likely to be caused by an industry,process or operation proposed to be prohibited or restricted. (viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified as such under the Wild Life (Protection) Act, 1972 or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international conference, association or other body. (ix) Proximity to human settlements. (x) Any other factor as may be considered by the Central Government to be relevant to the protection of the environment in an area. (2) While prohibiting or restricting the location of industries and carrying on of processes and operations in an area, the Central Government shall follow the procedure hereinafter laid down. (3) (a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the location of an industry or the carrying on of processes and operations in an area, it may, by notification in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time, give notice of its intention to do so. (b) Every notification under clause (a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the location of the industries and carrying on of processes or operations in that area. (c) Any person interested in filing an objection against the imposition of prohibition or restrictions on carrying on of processes or operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication in the notification in the Official Gazette. (d) The Central Government shall within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette consider all the objections received against such notification and may within three hundred and sixty five days from such date of publication impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area. (4) Notwithstanding anything contained in sub-rule (3), whenever it appears to the Central Government that it is in public interest to do so, it may dispense with the requirement of notice under clause (a) of sub-rule (3)." Draft notification under sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 for imposing certain restrictions and prohibitions on new projects was published inviting objections. In exercise of power under sub-section (1) and Clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 notification dated 14th September, 2006 was published, namely, Environment Clearance Regulations, 2006. Regulation 2 provides for requirements of prior environmental clearance. Schedule to the 2006 Regulations contains list of projects or activities requiring prior environmental clearance. In the present case Schedule in so far as Item No.7(f) and Item No.8 are concerned, are extracted below:- Project or Activity Category with threshold limit Condition if any A B 1 9 Mining, extraction of natural resources and power generation (for a specified production capacity) (1) (2) (3) (4) (5) 7(f) Highways (i) New National Highways; and (ii) Expansion of National Highways greater than 30 Km, involving additional right of way greater than 20m involving land acquisition and passing through more than one State (i) New State Highways; and (ii) Expansion of National/State Highways greater than 30 km involving additional right of way greater than 20 m involving land acquisition General condition shall apply 8 Building/Construction projects/Area Development projects and Township 8(a) Building and construction projects 20000 sq. mtrs and 1,50,000 sq. mtrs of built-up area# #(built up area for covered construction; in the case of facilities open to the sky, it will be the activity area) 8(b) Townships and Area Development projects Covering an area 50 ha and or built up area 1,50,000 sq. mtrs ++ ++ All projects under Item 8(b) shall be appraised as Category B1 Regulation 3 of the 2006 Regulations provides for constitution of State Environment Impact Assessment Authority by the Central Government to be nominated by the State Government. Regulation 4 relates to categorisation of projects and activities. Regulations 4, 5 and 6 of 2006 Regulations are quoted as below:- "4.Categorization of projects and activities.-(i) All projects and activities are broadly categorized into two categories-Category A and Category B, based on the spatial extent of potential impacts and potential impacts on human health and natural and man made resources. (ii) All projects or activities included as Category ''A' in the Schedule, including expansion and modernization of existing projects or activities and change in product mix, shall require prior environmental clearance from the Central Government in the Ministry of Environment and Forests (MoEF) on the recommendations of an Expert Appraisal Committee (EAC) to be constituted by the Central Government for the purposes of this notification. (iii) All projects or activities included as Category ''B' in the Schedule, including expansion and modernization of existing projects or activities as specified in sub-paragraph (ii) of Paragraph 2, or change in product mix as specified in sub-paragraph (iii) of Paragraph 2, but excluding those which fulfil the General Conditions (GC) stipulated in the Schedule, will require prior environmental clearance from the State/Union territory Environment Impact Assessment Authority (SEIAA). The SEIAA shall base its decision on the recommendations of a State or Union territory level Expert Appraisal committee (SEAC) as to be constituted for in this notification. In the absence of a duly constituted SEIAA or SEAC, a Category ''B' project shall be treated as a Category ''A' project.
(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. Application for Prior Environmental Clearance (EC).- An application seeking prior environmental clearance in all cases shall be made in the prescribed Form 1 annexed herewith and Supplementary Form 1-A, if applicable, as given in Appendix II, after the identification of prospective site(s) for the project and/or activities to which the application relates, before commencing any construction activity, or preparation of land, at the site by the applicant. The applicant shall furnish, along with the application, a copy of the pre-feasibility project report except that, in case of construction projects or activities (Item 8 of the Schedule) in addition to Form 1 and the Supplementary Form 1-A, a copy of the conceptual plan shall be provided, instead of the pre-feasibility report." Regulation 7 of the 2006 Regulations provides for stages in the prior environmental clearance for new projects. Regulation 7(i) provides for four stages in sequential order. The provisions of Regulation 7 shall be further referred to while considering the submissions in detail. Regulation 7 also refers to Appendix IV (Procedure for conduct of public hearing). Appendix V refers to procedure prescribed for appraisal. From perusal of all the provisions as extracted above, it is clear that 8-Lane Ganga express way, which is running from Narora to Ballia is a project falling in Category 7(f) and is in essence a new State highway. According to regulations new State highway is a Category-B project. According to Regulation 4 for a Category-B project listed in the schedule prior environmental clearance is necessary from State Environment Impact Assessment Authority, which shall base its decision on the recommendation of the State Level Expert Appraisal Committee. Other relevant items of the schedule to be noticed are Item 8(a) and 8(b). Along with 8-Lane express highway parcel of land for land development to the extent of 12,281 hectares was also to be granted to the concessionaire in addition to the land required for construction of Ganga express highway project. On the said parcel of land concessionaire was entitled to grant sub-lease of land for development of land for commercial, industrial, institutional and residential purposes and other permitted land use. The stand taken by the learned counsel for the respondents and the various steps taken by the State authorities clearly demonstrate that respondents proceeded to obtain environmental clearance considering the 8-Lane express way as a project falling in Item 7(f) of the Schedule and as a Category-B project and since the project requires a environment impact assessment report, the same is to be treated in Category B-I. Thus the claim of environmental clearance has to be processed in accordance with Regulations 2006 treating the project in Category B-I as a new State highway. The issues relating to environment and pollution have been coming to this Court and the Apex Court frequently in view of growing importance being attached to environmental issues by the entire mankind. The Government and the legislature have also recognised the importance of such issues. Before the Apex Court in various cases different aspects including the scope of judicial review by the High Court under Article 226 of the Constitution of India in such matters have come up for consideration. One of the submissions raised on behalf of the respondents is that to construct express way being a policy decision of the State this Court shall not enter into the merits of the policy decision and the Court is not required to enter or adjudicate as to whether the policy decision of the State Government is in public interest or not, which essentially is in the domain of the State Government. It is, thus necessary to refer to certain relevant judgments of the Apex Court where environmental issues including scope of judicial review have been considered. The first decision, which needs mention is M.C. Mehta's [(1087)4 SCC 463] case (supra). In the said matter public interest litigation was filed in the Supreme Court by an active social worker for restraining the respondents from discharging the trade effluents into the river Ganga. The Central Board of Prevention and Control of Pollution and the Uttar Pradesh Pollution Control Board as well as large number of industries and tanneries, which were discharging trade effluents in river Ganga were made parties to the petition. The Apex Court entertained that public interest litigation, issued notice treating the case in representative action and inviting all industries, municipal corporations and municipal councils through which river Ganga flows to show cause. The Apex Court after noticing the proclamation adopted by the United Nation on Human Environment at Stockholm, made following observations in paragraph 4 of the said judgment:- "....The proclamation also contained certain common convictions of the participant nations and made certain recommendations on development and environment. The common convictions stated include the conviction that the discharge of toxic substances or of other substances and the release of heat in such quantities or concentrations as to exceed the capacity of environment to render them harmless must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems, that States shall take all possible steps to prevent pollution of the seas so that hazards to human health, harm to living resources and marine life, damage to the amenities or interference with other legitimate uses of seas is avoided that the environmental policies would enhance and not adversely affect the present and future development potential of developing countries, that science and technology as part of their contributions to economic and social development must be applied with identification, avoidance and control of environmental risks and the solution of environmental problems and for the common good of mankind, that States have the responsibility to ensure that activities of exploitation of their own resources within their jurisdiction are controlled and do not cause damage to the environment of other States or areas beyond the limit of national jurisdiction, that it will be essential in all cases to consider the systems of values prevailing in each country and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost and that man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. These are only some of the statements of principles proclaimed by the Stockholm Conference. [vide Lal's Commentaries on Water and Air Pollution Laws (2nd edn.) pages 6-7]" The same judgment of the Apex Court highlighted the greatness of river Ganga. Following was observed in paragraph 20 of the said judgment:- "20. The river Ganga is one of the greatest rivers of the world, although its entire course is only 1560 miles from its source in Himalaya to the sea. There are many rivers larger in shape and longer in size but no river in the world has been so great as the Ganga. It is great because to millions of people since centuries it is the most sacred river. It is called "Sursari" river of the Gods, ''Patitpawani' purifier of all sins and ''Ganga Ma' Mother Ganges. To millions of Hindus, it is the most sacred, most venerated river on earth. According to the Hindu belief and mythology to bath in it, is to wash away guilt, to drink the mater, having batched in it, and to carry it away in containers for those who may have not had the good fortune to make the pilgrimage, to it, is meritorious. To be cremated on its banks, or to die there, and to have one's ashes cast on its waters, is the wish of every Hindu. Many saints and sages have pursued their quest for knowledge and enlightenment on the banks of the river Ganga. Its water has not only purified the body and soul of the millions but it has given fertile land to the country in Uttar Pradesh and Bihar. Ganga has been used as means of water transport for trade and commerce. The Indian civilization of the Northern India thrived in the plains of Ganga and most of the important towns and places of pilgrimage are situated on its banks......." In the same judgment Hon'ble Mr. Justice K.N. Singh concurring to the main judgment noted the pollution, which is being caused to river Ganga by dumping of garbage and discharge of effluents. Direction for closure of the industries, which failed to take minimum steps was also issued. The Apex Court further observed that the Court is conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have great importance to the people. Following was observed in paragraph 22 of the said judgment:- "22. Millions of our people bath in the Ganga, drink its water under an abiding faith and belief to purity themselves and to achieve moksha, release from the cycle of birth and death. It is tragic that the Ganga, which has since time immemorial, purified the people is being polluted by man in numerous ways, dumping of garbage, throwing carcass of dead animals and discharge of effluents. Scientific investigations and survey reports have shown that the Ganga which serves one-third of India's population is polluted by the discharge of municipal sewage and the industrial effluents in the river. The pollution of the river Ganga is affecting the life, health and ecology of the Indo-Gangetic Plain. The government as well as Parliament both have taken a number of steps to control the water pollution, but nothing substantial has been achieved. I need not to refer to those steps as my learned brother had referred to them in detail. Now law or authority can succeed in removing the pollution unless the people co-operate. To my mind, it is the sacred duty of all those who reside or carry on business around the river Ganga to ensure the purity of Ganga. Tanneries at Jajmau area near Kanpur have been polluting the Ganga in a big way. This Court issued notices to them but in spite of notice many industrialists have not bothered either to respond to the notice or to take elementary steps for the treatment of industrial effluent before discharging the same into the river. We are therefore issuing the directions for the closure of those tanneries which have failed to take minimum steps required for the primary treatment of industrial effluent. We are conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people." The Apex Court in (1987)2 S.C.C. 295 Sachidanand Pandey and another vs. State of West Bengal and others again came across with a public interest litigation in which challenge was to the decision of the State Government to lease out the land belonging to zoological garden situate in Kolkata to a five star hotel. The Apex Court noticed that in India, as elsewhere in the world, uncontrolled growth and consequent environmental deterioration are fast assuming menacing proportions and all Indian cities are afflicted with this problem. The Apex Court held that when the Court is called upon to give effect to the directive principle and the fundamental duty, the Court is not to shirk its shoulders and say that priorities are a matter of policy and so it is a matter for the policy making authority. The Apex Court further observed that the least the Court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded. Following was laid down in paragraph 4 of the said judgment:- "4. In India, as elsewhere in the world, uncontrolled growth and the consequent environmental deterioration are fast assuming menacing proportions and all Indian cities are afflicted with this problem. The once Imperial City of Calcutta is no exception. The question raised in the present case is whether the Government of West Bengal has shown such lack of awareness of the problem of environment in making an allotment of land for the construction of a Five Star Hotel at the expense of the zoological garden that it warrants interference by this Court. Obviously, if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public. Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Art. 48- A of the Constitution. Directive Principle which enjoins that "The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country," and Art. 51 A(g) which proclaims it to be the fundamental 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." When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy-making authority. The least that the Court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded. In appropriate cases, the Court may go further, but how much further must depend on the circumstances of the case. The Court may always give necessary directions. However the Court will not attempt to nicely balance relevant considerations. When the question involves the nice balancing of relevant considerations, the Court may feel justified in resigning itself to acceptance of the decision of the concerned authority. We may now proceed to examine the facts of the present case." In M.C. Mehta (II) vs. Union of India reported in 1988(1) S.C.C. 471 the Apex Court again held that the nuisance caused by the pollution of the river Ganga is a public nuisance, which is widespread in range and indiscriminate in its effect. Following was laid down in paragraph 16 of the said judgment:- "16. ..... The nuisance caused by the pollution of the river Ganga is a public nuisance, which is widespread in range and indiscriminate in its effect and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large. The petition has been entertained as a Public Interest Litigation. On the facts and in the circumstances of the case we are of the view that the petitioner is entitled to move this Court in order to enforce the statutory provisions, which impose duties on the municipal authorities and the Boards constituted under the Water Act......" In Vellore Citizens' Welfare Forum vs. Union of India and others reported in (1996)5 S.C.C. 647, the Apex Court was again considering a public interest litigation in a case where by enormous discharge of untreated effluent by the tanneries and other industries pollution was caused. The untreated effluent were finally discharged in river Palar, which was main source of water supply to the resident of the area. The Apex Court noticed the concept of development and ecology. The Apex Court held that ''sustainable development' is a concept, which has been given shape and has been accepted as viable concept. The Apex Court further examined the essential features of ''sustainable development'. Following was laid down in paragraphs 10 and 11 of the said judgment:- "10. The traditional concept that development and ecology are opposed to each other, is no longer acceptable. "Sustainable Development" is the answer. In the International sphere "Sustainable Development" as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called "Our Common Future". The Commission was chaired by the then Prime Minister of Norway Ms. G. H. Brundtland and as such the report is popularly known as "Brundtland Report". In 1991 the World Conservation Union, United Nations Environment Programme and World Wide Fund for Nature, Jointly came out with a document called "Caring for the Earth" which is a strategy for sustainable living. Finally, came the Earth Summit held in June, 1992 at Rio which saw the largest gathering of world leaders ever in the history - deliberating and chalking out a blue print for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions were signed by 153 nations. The delegates also approved by consensus three non-binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. During the two decades from Stockholm to Rio "Sustainable Development" has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems. "Sustainable Development" as defined by the Brundtland Report means "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". We have no hesitation in holding that "Sustainable Development" as a balancing concept between ecology and development has been accepted as a part of the Customary International law though its salient features have yet to be finalised by the International law Jurists. 11. Some of the salient principles of "Sustainable Development", as called-out from Brundtland Report and other international documents, are Inter Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, obligation to assist and co-operate, Eradication of Poverty and, Financial Assistance to the developing countries. We are, however, of the view that "The Precautionary Principle" and "The Polluter Pays" principle are essential features of "Sustainable Development." The "Precautionary Principle" in the context of the municipal law means : (i) Environmental measures - by the State Government and the statutory authorities-must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (iii) The "Onus of proof' is on the actor or The developer/industrialist to show that his action is environmentally benign." In the above judgment, the Apex Court also held that ''Precautionary Principal and ''Polluter Pays Principle' are part of environmental law of the country. The Apex Court held that constitutional and statutory provisions protect a person's right to fresh air, clean water and pollution-free environment, but the source of the right is the inalienable common law right of clean environment. Again a public interest litigation came up when on a newspaper published in ''Indian Express' on 25.2.1996, the Apex Court entertained a public interest litigation, i.e., M.C. Mehta vs. Kamal Nath reported in (1997)1 S.C.C. 388. The Apex Court held that the State is trustee of all natural resources, which are by nature meant for public use and enjoyment. It was further held that the resources meant for public use cannot be converted into private ownership. Following was laid down in paragraph 34:- "34. Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership." In A.P. Pollution Control Board vs. Prof. M.V. Nayudu and others reported in (1999)2 S.C.C. 718 the Apex Court explained the ''precautionary principles' and noticed a new concept of 'burden of proof' as referred to earlier in Vellore Citizens' case (supra). Following was laid down in paragraphs 31 and 37 of the said judgment:- "31. The 'uncertainity' of scientific proof and its changing frontiers from time to time has led to great changes in environmental concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992. In Vellore Citizens' Welfare Forum v. Union of India, (1966) 5 SCC 647 : (1996 AIR SCW 3399), a three Judge Bench of this Court referred to these changes, to the 'precautionary principle' and the new concept of 'burden of proof' in environmental matters. Kuldip Singh, J. after referring to the principls evolved in various International Conferences and to the concept of 'Sustainable Development', stated that the precautionary principle, the polluter-pays principle and the special concept of Onus of Proof have now merged and govern the law in our country too, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes, such as the Water Act, 1974 and other statutes, including the Environment (Protection) Act, 1986, these concepts are already implied. The learned Judge declared that these principles have now become part of our law. The relevant observations in the Vellore case (1998 AIR SCW 3399, para 13) in this behalf read as follows : "In view of the above-mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the Polluter Pays Principle are part of the environmental law of the country." The Court observed that even otherwise the above-said principles are accepted as part of the Customary International Law and hence there should be no difficulty in accepting them as part of our domestic law. In fact on the facts of the case before this Court, it was directed that the authority to be appointed under section 3(3) of the Environment (Protection) Act, 1986. "shall implement the 'precautionary principle' and the 'polluter pays principle." The learned Judges also observed that the new concept which places the Burden of Proof on the Developer or Industrialist who is proposing to alter the status quo, has also become part of our environmental law. 37. It is to be noticed that while the inadequacies of science have led to the 'precautionary principle', the said 'precautionary principle' in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injuries effect of the actions proposed is placed on those who want to change the status quo (Wynne, Uncertainity and Environmental Learning, 2 Global Envtl, Change 111 (1992) at p. 123). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less-polluted State should not carry the burden of proof and the party who wants to alter it, must bear this burden." With regard to construction of dam in river ''Narmada' a public interest litigation (Naramada Bachao Andolan vs. Union of India and others, reported in (2000)10 S.C.C. 664) came for consideration before the Apex Court in which various environmental and ecological aspects and the limit of judicial review in such cases came for consideration. The Apex Court in the said judgment has also laid down that ''sustainable development' means that development which could be sustained by nature/ecology with or without mitigation. The Apex Court also laid down that ''precautionary principle' and the corresponding 'burden of proof' is on the person who wants to change the status quo. Paragraph 123 of the said judgment is quoted below:- "123. It appears to us that the 'precautionary principle' and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known. When there is a State of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology of environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to off set the same. Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation." In this very judgment paragraph 229 has been relied by learned counsel for the respondents to substantiate their submission that this Court shall not transgress into the field of the policy decision as to whether to have an infrastructural project or not, but in the said case the Apex Court also observed that the Court has duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed. following was laid down in paragraphs 229 and 231 of the said judgment:- "229. It is now well-settled that the Courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy making process and the Courts are ill equipped to adjudicate on a policy decision so undertaken. The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means over run in costs and the decision to undertake a project, if challenged after it's execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the Court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them. 231. While exercising jurisdiction in PIL cases Court has not forsaken its duty and role as a Court of law dispensing justice in accordance with law. It is only where there has been a failure on the part of any authority in acting according to law or in non-action in violation of the law that the Court has stepped in. No directions are issued which are in conflict with any legal provisions. Directions have, in appropriate cases, been given where the law is silent and inaction would result in violation of the Fundamental Rights or other Legal provisions. In T.N. Godavarman Thirumalpad vs. Union of India reported in (2002)10 S.C.C.606, referring to the constitutional provisions of Article 48-A, the Apex Court laid down that it is imperative on the Central Government and the State Government not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve the natural environment. Following was laid down in paragraph 17 of the said judgment:- "17. Article 48-A in Part IV (Directive Principles) of the Constitution of India, 1950 brought by the Constitution (Forty-second Amendment) Act, 1976, enjoins that "State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country". Article 47 further imposes the duty on the State to improve public health as its primary duty. Article 51-A (g) imposes "a fundamental duty" on every citizen of India to protect and improve the natural "environment" including forests, lakes, rivers and wildlife and to have compassion for living creatures. The word " environment" is of broad spectrum which brings within its ambit "hygienic atmosphere and ecological balance". It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has a duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including the right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contracts or actions would cause environmental pollution. therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has ow become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is constitutional imperative on the Central Government, State Governments and bodies like municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve the man-made environment and natural environment." The construction of Tehri Dam in Uttar Kashi (now in State of Uttranchal) raised several important issues pertaining to environment. The Apex Court considered those issues in the case of N.D. Jayal and another vs. Union of India and others reported in (2004)9 S.C.C. 362. The Apex Court although held that it is for the Government to decide whether to have an infrastructural project or not and what is the type of project to be undertaken and how the project is to be undertaken, are part of policy making process, but a note of caution was sounded. Following was laid down in paragraph 10 of the said judgment:- "10. .....It is made clear in that decision that the questions whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy- making process and the Courts are ill-equipped to adjudicate on a policy decision so undertaken. However, a note of caution was struck that the Courts have a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights as guaranteed under the Constitution are not transgressed upon except to the extent permissible under the Constitution. When a law has been enacted in relation to the protection of environment and such law is being given effect to and there is no challenge to such law, the duty of the Courts would be to see that the Government and other respondents act in accordance with law and there is no other obligation for the Court to examine further in the matter. We respectfully agree with the view expressed in the Sardar Sarovar project's case and apply the same to the facts arising in this case." The Apex Court also laid down in the said judgment that sustainable development could be achieved only by strict compliance with the directions under the Act. It was further held that without strict compliance right to environment under Article 21 could not be guaranteed and the purpose of the Act will also be defeated. The Apex Court was considering the provisions of the Environment (Protection) Act, 1986. Following was laid down in paragraph 26 of the said judgment:- "26. To ensure sustainable development is one of the goals of Environmental Protection Act, 1986 (for short 'the Act') and this is quiet necessary to guarantee 'right to life' under Article 21. If the Act is not armed with the powers to ensure sustainable development, it will become a barren shell. In other words, sustainable development is one of the means to achieve the object and purpose of the Act as well as the protection of 'life' under Article 21. Acknowledgement of this principle will breath new life into our environmental jurisprudence and constitutional resolve. Sustainable development could be achieved only by strict compliance of the directions under the Act. The object and purpose of the Act - "to provide for the protection and improvement of environment" could only be achieved by ensuring the strict compliance of its directions. The concerned authorities by exercising its powers under the Act will have to ensure the acquiescence of sustainable development. Therefore, the directions or conditions put forward by the Act need to be strictly complied with. Thus the power under the Act cannot be treated as a power simpliciter, but it is a power coupled with duty. It is the duty of the State to make sure the fulfilment of conditions or direction under the Act. Without strict compliance, right to environment under Article 21 could not be guaranteed and the purpose of the Act will also be defeated. The commitment to the conditions thereof is an obligation both under Article 21 and under the Act. The conditions glued to the environmental clearance for the Tehri Dam Project given by the Ministry of Environment vide its Order dated July 19, 1990 has to be viewed from this perspective." From the pronouncements of the Supreme Court, as noted above, it is amply clear that when a question of environmental clearance of a mega project comes before a Court in which issues of environmental degradation and polluting the natural resources is involved, the Court while not shirk from its responsibility from examining as to whether such project violates any constitutional right guaranteed under the Constitution or violates any statutory law. It has been held that the Court, no doubt has a duty to see that in the undertaking of the decision no law is violated and people's fundamental rights are not transgressed except as permissible under the Constitution. The Court has also to see as to whether there is strict compliance of the provisions of the Environment (Protection) Act, 1986 without which right to environment enshrined under Article 21 of the Constitution could not be guaranteed. We thus, proceed to examine the issues raised in this writ petition in the light of the provisions of Environment (Protection) Act, 1986 and law as declared by the Apex Court in above mentioned cases. Now we proceed to consider the issues raised in second writ petition, i.e., writ petition No. 21754 of 2008 (Vindhya Environment Society), which writ petition primarily raises issues of violation of provisions of Environment Clearance Regulations, 2006. As noticed above, a statutory procedure has been prescribed for obtaining prior environmental clearance from regulatory authority i.e. State Environment Impact Assessment Authority (SEIAA). Sri Rahul Mishra elaborating his submissions raised following grounds to challenge the environmental clearance:- (a) In exercise of powers conferred by sub-section (1) and Clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 notification dated 14th September, 2006 has been issued. The 2006 Regulations require prior environmental clearance from concerned regulatory authority for matters falling under Category-B and according to Regulation 7 there are four stages in the prior environmental clearance for processing a new project. Regulations 2006 provide statutory procedure of screening, scoping, public consultation and appraisal, in the present case in grant of prior environmental clearances by State Environment Impact Assessment Authority (by order dated 23rd August, 2007) statutory provisions prescribed in Regulations 2006 have been violated. (b) Regulation 7 of the 2007 Regulations as well as Appendix IV provides procedure for conduct of public hearing. The statutory provisions relevant for conducting the hearing have been violated. (c) Regulation 7 read with Appendix V provides for procedure for appraisal. The procedure for appraisal statutorily prescribed has been violated vitiating the entire process resulting in environmental clearance. (d) The State Level Expert Appraisal Committee has violated statutory provisions pertaining to screening, scoping and appraisal. The sequence of events and hurried completion of entire process taken by the State Level Expert Appraisal Committee clearly demonstrates non application of mind by State Level Expert Appraisal Committee and breach of statutory provisions. It is pleaded that State Level Expert Appraisal Committee took only one day for screening and scoping of the project whereas according to Regulation 7 only for Stage-II (scoping) sixty days time is allowed. (e) Public consultation, which includes public hearing (Stage-III) has also been conducted in disregard of statutory provisions. The applicant while submitting a request to the U.P. Pollution Control Board for public hearing did not enclose draft EIA report nor the summary environmental impact assessment report and papers were not available at the places where the 2006 Regulations required to be sent simultaneously. The draft EIA report was not made available for inspection to the public. The draft EIA report was made available only on the date of hearing, i.e., 20th August, 2007 due to which neither appropriate objection nor appropriate suggestion could be given. The report and summary were not made available to the petitioners in spite of request having been made in writing vide letter dated 27th July, 2007 pointing out that the documents have not been made available even though one week has expired from the date of issue of notice. (f) The draft EIA report and summary of environmental impact assessment did not take into consideration various steps, which were included in terms of reference and additional study as directed by the State Level Expert Appraisal Committee. (g) The applicant after completion of public hearing did not submit any application along with relevant report as required by Appendix V of 2006 Regulations to the regulatory authority. The regulatory authority did not scrutinise the final EIA report in accordance with the terms of reference nor it communicated the same to the State Level Expert Appraisal Committee. (h) The State Level Expert Appraisal Committee within one day, i.e., 22nd August, 2007 completed the appraisal and submitted its recommendation whereas statutory provisions allow sixty days time for appraisal of the committee. (i) The State Environment Impact Assessment Authority also took only one day in granting prior environmental clearance, i.e., 23rd August, 2007, the date next when the recommendations were submitted whereas Regulation 7 of the 2006 Regulations allows fifteen days time for consideration. (j) The sequence of events and various steps taken by the Public Works Department, State Level Expert Appraisal Committee and State Environment Impact Assessment Authority indicate total non application of mind and makes it clear that entire process was completed hurriedly, in haste and without addressing to the relevant environmental concerns by any of the statutory authority, who have been entrusted under the statute various duties and responsibilities. It has been noticed above that the Irrigation Department of the State of U.P. submitted an application on 22.6.2007 to the U.P. Pollution Control Board seeking prior environmental clearance for construction of 6-lane expressway on the marginal embankment from Narora to Ghazipur. U.P. Pollution Control Board send its reply dated 26.6.2007 stating that marginal embankment does not require prior environmental clearance and if in future six lane expressway is to be constructed appropriate application be made to the concerned authority in accordance with the notification dated 14.9.2006. The State Environment Impact Assessment Authority as well as State Level Expert Appraisal Committee were constituted vide notification dated 12.7.2007. Regulation 4 (iii) provides that "............In the absence of a duly constituted SEIAA OR SEAC, a category 'B' project shall be treated as a Category 'A' project." For category 'A' project the prior environmental clearance is required from the Central Government, Ministry of Environment and Forest. When on 4.7.2007, the application was submitted by Public Works Department praying for prior environmental clearance to the Member Secretary U.P. Pollution Control Board along with an application in the prescribed proforma Form-1, the said application was not in accordance with the Regulations, 2006 since SEIAA or SEAC was not constituted on 4.7.2007 it having subsequently constituted on 12.07.2007, the application, if any was required to be made to Central Government Ministry of Environment and Forest. On 17.7.2007, Public Works Department wrote a letter to the Secretary, State Level Expert Appraisal Committee annexing ten copies of executive summary. No application has been made by the State Government, Public Works Department to the Regulatory Authority. But the State Level Expert Appraisal Committee took up the application for screening in its meeting dated 18.7.2007. Regulation 7 provides for 4 stages in sequential order towards Environmental clearance process. Regulation 7 up to Stage (I) i.e. 'Screening' is quoted as below: " 7. Stages in the Prior Environmental Clearance (EC) Process for New Projects-(i) The environmental clearance process for new projects will comprise of a maximum of four stages, all of which may not apply to particular cases at set forth below in this notification. These four stages in sequential order are:- Stage (1) Screening (Only for Category 'B' projects and activities) Stage (2) Scoping Stage (3) Public Consultation Stage (4) Appraisal I. Stage (1)- Screening.- In case of Category 'B' projects or activities, this Stage will entail the scrutiny of an application seeking prior environmental clearance made in Form 1 by the concerned State Level Expert Appraisal Committee (SEAC) for determining whether or not the project or activity requires further environmental studies for preparation of an Environmental Impact Assessment (EIA) for its appraisal prior to the grant of environmental clearance depending upon the nature and location specificity of the project. The projects requiring an Environment Impact Assessment report shall be termed Category 'B-1 and remaining projects shall be termed Category 'B-2' and will not require an Environment Impact Assessment report. For categorization of projects into B-1 or B-2 except Item 8(b), the Ministry of Environment and Forests shall issue appropriate guidelines from time to time." The above statutory provision indicates that Stage (1) entail the scrutiny of an application by State Level Expert Appraisal Committee for determining whether or not the project or activity requires further environmental studies for preparation of an Environmental Impact Assessment. The proceeding of State Level Expert Appraisal Committee has been brought on record as Annexure-2 to the counter affidavit, filed by Ministry of Environment Government of India in writ petition No. 15125 of 2008. The Committee in paragraph 4 of its proceedings recommended addition of twelve different studies. Paragraph 4 of the proceedings is quoted below: "(4) The committee also recommends the additions of the following studies to the Terms of Reference as proposed by the project proponent: a. The EIA should include the fly ash generating potential of the surrounding areas and submit a plan for utilizing fly ash generation within 100 km of the project. b. The EIA should have clear cut recommendations on resettlement and rehabilitation options for oustees. c. The EIA should also address to the impacts of vehicular imissions on the river water quality and aquatic life. d. The prediction of impacts on water balance should also include the effects of compaction on marginal bund overlaid by road traffic on the permeability of underlying sub soils and the ground water flow to the river, if any. e. The Wetlands in the study area should be suitably mapped. The report should examine the impact of the proposed activities on wetlands. f. The EIA should address to the environmental impacts of ancillary activities of projects which are likely to come up such as garages, petrol pumps and motels etc. g. The EIA should also address to the migratory paths of wild life. h. The EIA should also address to all the phases (acquisition of land, preparation, construction and operation) of the project while evaluating the impact on environment and drawing up the management plan. i. The report should try to analyze the impact of the project as a catalyst to development of slums and other unorganized activities. The EMP should control this through well defined land use provisions. j. All sampling locations studied should be strictly mapped using digital mapping/GIS techniques. k Water conservation, reduction in use and waste water management during construction. l Provision of housing, fuel, safe drinking water and sanitation for the contract labour." Stage (2)- Scoping. Regulation 7 contains detailed procedure for Stage (2) which is extracted below: " II. Stage (2)- Scoping.-(i) "Scoping": refers to the process by which the Expert Appraisal Committee in the case of Category 'A' projects or activities, and State Level Expert Appraisal committee in the case of Category 'B-1' projects or activities, including applications for expansion and/or modernization and/or change in product mix of existing projects or activities, determine detailed and comprehensive Terms of Reference (TOR) addressing all relevant environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report in respect of the project or activity for which prior environmental clearance is sought. The Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall determined the Terms of Reference on the basis of the information furnished in the prescribed application Form 1/Form 1-A including Terms of Reference proposed by the applicant, a site visit by a sub-group of Expert Appraisal Committee or State Level Expert Appraisal Committee concerned only if considered necessary by the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned, Terms of Reference suggested by the applicant if furnished and other information that may be available with the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned. All projects and activities listed as Category 'B' in Item 8 of the Schedule (Construction/Township/Commercial Complexes/Housing) shall not require Scoping and will be appraised on the basis of Form 1/Form 1-A and the conceptual plan. (ii) The Terms of Reference (TOR) shall be conveyed to the applicant by the Expert Appraisal Committee or State Level Expert Appraisal Committee as concerned within sixty days of the receipt of Form 1. In the case of Category A Hydroelectric projects Item 1 (c) (i) of the Schedule the Terms of Reference shall be conveyed along with the clearance for pre-construction activities. If the Terms of Reference are not finalized and conveyed to the applicant within sixty days of the receipt of Form 1, the Terms of Reference suggested by the applicant shall be deemed as the final Terms of Reference approved for the EIA studies. The approved Terms of Reference shall be displayed on the website of the Ministry of Environment and Forests and the concerned State Level Environment Impact Assessment Authority. (iii) Applications for prior environmental clearance may be rejected by the regulatory authority concerned on the recommendation of the EAC or SEAC concerned at this Stage itself. In case of such rejection, the decision together with reasons for the same shall be communicated to the applicant in writing within sixty days of the receipt of the application." Scoping thus, is a process by which State Level Expert Appraisal Committee determines detailed and comprehensive Terms of Reference (TOR) addressing all relevant environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report. Regulation 7 provides that Terms of Reference shall be conveyed to the applicant by the State Level Expert Appraisal Committee within 60 days of the receipt of Form-1. In the present case, a perusal of proceeding dated 18.7.2007 of the State Level Expert Appraisal Committee proves that both Stage (1) Screening and Stage (2) Scoping was completed within one single day i.e. on 18.7.2007. When the State Level Expert Appraisal Committee has directed for further environmental studies, determining the Terms of Reference for EIA report, the Terms of Reference could not have been finalised on the same day since additional studies might require a change in Terms of Reference for preparation of Environment Impact Assessment Report. Environmental issues raise intricate questions and when State Level Expert Appraisal Committee was satisfied that further environmental studies are necessary, Terms of Reference ought to have been finalised after further environmental studies. The provisions of Regulation 7 has to be given purposive meaning and interpretation so as to achieve the object of 1986 Act. Further environmental studies as directed by the State Level Expert Appraisal Committee had bearing on Terms of Reference. As noticed above, for Stage (1), no time limit has been fixed for determining whether or not the project requires further environmental studies but for Scoping 60 days' time has been allowed to State Level Expert Appraisal Committee to determine the Terms of Reference. The 60 days time has been allowed to State Level Expert Appraisal Committee for a purpose and object. The purpose and object is that the project being included in the schedule have far reaching environmental effects and sufficient time be allowed to the State Level Expert Appraisal Committee by the Statute to consider all aspects of the matter, deliberate the issues and then finalise the Terms of Reference. The manner in which Stage (1) and Stage (2) was crossed in one day by the State Level Expert Appraisal Committee speaks of undue 0 haste and hurry for which no satisfactory explanation is on the record. It is also relevant to note that 6- lane expressway project (Subsequently increased to 8- lane) was not a project which needed any extreme urgency and coupled with the facts that notification constituting the State Level Expert Appraisal Committee was issued only on 12.7.2007 and not a week had elapsed from the constitution of the committee itself. Thus, it s amply clear that Stage (1) and Stage (2) was crossed in one day showing undue haste and hurry without application of mind on all environmental concerns. Stage (3)-Public Consultation. Regulation 7 provides procedure for public consultation. Public consultation has two components (a) Public hearing at the site or in its close proximity-district-wise; (b) obtain response in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity. Regulation 7 provides detailed procedure for Stage (3), which is being quoted herein below: " III. Stage (3)-Public Consultation.-(i) " Public Consultation" refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate. All Category 'A' and Category B-1 projects or activities shall undertake Public Consultation, except the following:- (a) ................... (b) ................... (c) ................ d) .................. (e) ..................... 1 (f) ................. (ii) The Public Consultation shall ordinarily have two components comprising of:- (a) a public hearing at the site or in its close proximity-district wise, to be carried out in the manner prescribed in Appendix IV, for ascertaining concerns of local affected persons; (b) obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity. (iii) The public hearing at, or in close proximity to, the site(s) in all cases shall be conducted by the State Pollution Control Board (SPCB) or the Union territory Pollution Control Committee (UPTCC) concerned in the specified manner and forward the proceedings to the regulatory authority concerned within (forty- five days) of a request to the effect from the applicant. (iv) .................. (v) .................... (vi) For obtaining responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity, the concerned regulatory authority and the State Pollution Control Board (SPCB) of the Union territory Pollution Control Committee (UTPCC) shall invite responses from such concerned persons by placing on their website the Summary EIA report prepared in the format given in Appendix III-A by the applicant along with a copy of the application in the prescribed form, within seven days of the receipt of a written request for arranging the public hearing. Confidential information including non-disclosable or legally privileged information involving Intellectual Property Right, source specified in the application shall not be placed on the website. The regulatory authority concerned may also use other appropriate media for ensuring wide publicity about the project or activity. The regulatory authority shall, however, make available on a written request from any concerned person the Draft EIA report for inspection at a notified place during normal office hours till the date of the public hearing. All the responses received as part of this public consultation process shall be forwarded to the applicant through the quickest available means. (vii) After completion of the public consultation, the applicant shall address all the material environmental concerns expressed during this process, and make appropriate changes in the draft EIA and EMP. The final EIA report, so prepared, shall be submitted by the applicant to the concerned regulatory authority for appraisal. The applicant may alternatively submit a supplementary report to draft EIA and EMP. The final EIA report, so prepared, shall be submitted by the applicant to the concerned regulatory authority for appraisal. The applicant may alternatively submit a supplementary report to draft EIA and EMP addressing all the concerns expressed during the public consultation." Regulation 7 as quoted above refers to Appendix-IV which contains the manner of public hearing. Appendix IV provides detailed procedure for public consultation including public hearing. All details regarding contents of reports, manner of conduct of hearing, publicity have been meticulously provided in Appendix IV. Appendix IV is thus very relevant for finding out as to whether the statutory provisions have been followed in conduct of public consultation/public hearing. Appendix IV is quoted herein below: " Appendix IV Procedure for Conduct of Public Hearing 1.0 The Public Hearing shall be arranged in a systematic, time bound and transparent manner ensuring widest possible public participation at the project site(s) or in its close proximity Districtwise, by the concerned State Pollution Control Board (SPCB) or the Union Territory Pollution Control Committee (UTPCC). 2.0 The Process: 2.1 The Applicant shall make a request through a simple letter to the Member-Secretary of the SPCB or Union Territory Pollution Control Committee, in whose jurisdiction the project is located, to arrange the public hearing within the prescribed statutory period. In case the project site is extending beyond a State or Union Territory, the public hearing is mandated in each State or Union Territory in which the project is sited and the Applicant shall make separate requests to each concerned SPCB or UTPCC for holding the public hearing as per this procedure. 2.2 The Applicant shall enclose with the letter of request, at least 10 hard copies and an equivalent number of soft (electronic) copies of the draft EIA Report with the generic structure given in Appendix III including the Summary Environment Impact Assessment report in English and in the local language, prepared strictly in accordance with the Terms of Reference communicated after Scoping (Stage-2). Simultaneously the applicant shall arrange to forward copies, one hard and one soft, of the above draft EIA Report along with the Summary EIA report to the Ministry of Environment and Forests and to the following authorities or offices, within whose jurisdictioin the project will be located: (a) District Magistrate/s (b) Zila Parishad or Municipal Corporation (c) District Industries Office (d) Concerned Regional Office of the Ministry of Environment and Forests 2.3 On receiving the draft Environmental Impact Assessment report, the abovementioned authorities except the MoEF, shall arrange to widely publicize it within their respective jurisdiction requesting the interested persons to send their comments to the concerned regulatory authorities. They shall also make available the draft EIA Report for inspection electronically or otherwise to the public during normal office hours till the Public Hearing is over. The Ministry of Environment and Forests shall promptly display the Summary of the draft Environmental Impact Assessment report on its website, and also make the full draft EIA available for reference at a notified place during normal office hours in the Ministry at Delhi. 2.4 The SPCB or UTPCC concerned shall also make similar arrangements for giving publicity about the project within the State/Union Territory and make available the Summary of the draft Environmental Impact Assessment report (Appendix III-A) for inspection in select offices or public libraries or panchayats etc. They shall also additionally make available a copy of the draft Environmental Impact Assessment report to the above five authorities/offices viz., Ministry of Environment and Forests, District Magistrate etc. 4 3.0 Notice of Public Hearing: 3.1 The Member-Secretary of the concerned SPCB or UTPCC shall finalize the date, time and exact venue for the conduct of public hearing within 7 (seven) days of the date of receipt of the draft Environmental Impact Assessment report from the project proponent, and advertise the same in one major National Daily and one Regional vernacular Daily. A minimum notice period of 30 (thirty) days shall be provided to the public for furnishing their responses; 3.2 The advertisement shall also inform the public about the places or offices where the public could access the draft Environmental Impact Assessment report and the Summary Environmental Impact Assessment report before the public hearing. 3.3 No postponement of the date, time, venue of the public hearing shall be undertaken, unless some untoward emergency situatio occurs and only on the recommendation of the concerned District Magistrate the postponement shall be notified to the public through tghe same National and Regional vernacular dailies and also prominently displayed at all the identified offices by the concerned SPCB or Union Territory Pollution Control Committee: 3.4 In the above exceptional circumstances fresh date, time and venue for the public consultation shall be decided by the Member-Secretary of the concerned SPCB or UPTCC only in consultation with the District Magistrate and notified afresh as per procedure under 3.1 above. 4.0 The Panel: 4.1 The District Magistrate or his or her representative not below the rank of an Additional District Magistrate assisted by a representative of SPCB or UPTCC, shall supervise and preside over the entire public hearing process. 5.0 Videography: 5 The SPCB or UPTCC shall arrange to video film the entire proceedings. A copy of the videotape of a CD shall be enclosed with the public hearing proceedings while forwarding it to the Regulatory Authority concerned. 6.0 Proceedings: 6.1 The attendance of all those who are present at the venue shall be noted and annexed with the final proceedings. 6.2 There shall be no quorum required for attendance for starting the proceedings. 6.3 A representative of the applicant shall initiate the proceedings with a presentation on the project and the Summary EIA report. 6.4 Every person present at the venue shall be granted the opportunity to seek information or clarifications on the project from the Applicant. The summary of the public hearing proceedings accurately reflecting all the views and concerns expressed shall be recorded by the representative of the SPCB or UPTCC and read over to the audience at the end of the proceedings explaining the contents in the vernacular language and the agreed minutes shall be signed by the District Magistrate on his or her representative on the same day and forwarded to the SPCB/UPTCC concerned. 6.5 A Statement of the issues raised by the public and the comments of the Applicant shall also be prepared in the local language and in English and annexed to the proceedings. 6.6 The proceedings of the public hearing shall be conspicuously displayed at the office of the Panchayats within whose jurisdiction the project is located, office of the concerned Zila Parishad, District Magistrate and the SPCB/UTPCC shall also display the proceedings on its website for general information. Comments, if any, on the proceedings which may be sent directly to the concerned regulatory authorities and the Applicant concerned.;