1. We have heard Sri A.K. Gupta, learned Amicus Curiae, Sri A.K. Mishra, learned Senior Counsel for the Allahabad Development Authority,
Shri M.C. Tripathi, Additional Chief Standing Counsel for the State, Sri S.D. Kautilya, learned counsel for Nagar Nigam, Allahabad, Dr. H.N.
Tripathi, learned counsel for the U.P. Pollution Control Board and Shri Ajay Bhanot for the Union of India. Affidavits have been filed on behalf of
the State of U.P., Allahabad Development Authority, Nagar Nigam, Allahabad, U.P. Pollution Control Board and the Union of India.
2. Sri A.K. Gupta, learned Amicus Curiae, has filed an application annexing the various reports published in the newspaper regarding adverse
effect on account of flooding of river Ganga and the damage caused to the two newly constructed STP''s i.e. STP at Salori and STP at Rajaput.
Sri A.K. Gupta, learned Amicus Curiae, stated that this year the flood water reached 86.72 metres at Phaphamau while at Chatnag the maximum
water level reached 86.2 metres which were slightly less than the highest flood level recorded in the year 1978. It is stated that more than 75
villages were inundated and submerged due to flood in District Allahabad and more than 2/3rd area of the city side was also badly affected by the
flood. It has been stated that several colonies on the river bank were flooded and water submerged the ground floor of several houses endangering
the life of various houses in those localities. It has been submitted by Sri A.K. Gupta, learned Amicus Curiae, that inspite of the order of this Court
dated 22.4.2011, restraining construction activities within 500 metres from the highest flood level, illegal construction of houses continued and the
Allahabad Development Authority has failed to check such illegal construction which was its obligatory duty entrusted to it under the Uttar Pradesh
Urban Planning & Development Act, 1973 as well as under the order of this Court dated 22.4.2011.
3. Sri A.K. Mishra, learned Senior Counsel appearing for the Allahabad Development Authority has fairly submitted that several illegal
constructions have come up in the localities adjoining to the river Ganga. He further submitted that the Allahabad Development Authority has taken
measures to videograph the place up to which flood water reached this year. It is submitted that the extent of reach of flood water has been
complied in six Compact Disc (CD) which he produced in the Court.
4. We by our earlier orders had directed the Allahabad Development Authority, to photograph the areas which were flooded by flood water of
river Ganga this year. We had also directed to record the said extent of flood water in a map and to produce the same in the Court. Shri A.K.
Mishra, submitted that the Allahabad Development Authority shall sketch the extent of flood water reached this year in a map which shall also
reflect 500 metres from the highest flood level of the river. He further submitted that apart from taking action against the illegal construction of the
houses within the 500 metres of highest flood level, the Allahabad Development Authority with the collaboration of the District Administration shall
mark all existing open areas adjacent to river Ganga within 500 metres from highest flood level for freezing all construction activities in that area. It
has further been stated that the Green Belt Area after flood plain of river Ganga had already been proposed by the Allahabad Development
Authority as Green Belt and steps for plantation of trees in the said area shall be undertaken.
5. Sri A.K. Gupta, learned Amicus Curiae, submitted that due to lapses on the part of the officials of the U.P. Jal Nigam, Ganga Pollution Control
Unit of U.P. Jal Nigam and Irrigation Department both the newly constructed STP''s at Salori and Rajapur have suffered extensive damage by the
flood water this year. He submits that no steps were taken by the officials and authorities who were entrusted with the construction of the STP for
protecting the same by flood water although, both the STP''s were within the flood zone of river Ganga. It is submitted that the Ring Embankment
(Ring Bandh) constructed for protecting the Salori STP was only by sandy mud. It was also pointed out by the learned Amicus Curiae, that neither
Boulders nor the Iron Mesh has been used for construction of ring embankment which lead to damage of the STP''s. He submitted that in
construction of both the STP''s huge public money running into 100 crores have been spent, but due to lapses on the part of the officials entrusted
with the construction of STP, no measures for protecting the Ring Bandh from the flood water have been taken which is a serious lapse.
6. The construction of both the STP''s i.e. at Salori and Rajapur have been undertaken under the project sanctioned by the Government of India.
Huge public money running into hundred of crores have been allocated by the Government of India for construction of both the STP''s.
7. Both the STP''s have been constructed adjacent to the river Ganga which were clearly in the flood danger zone. Sri A.K. Gupta, learned
Amicus Curiae, has pointed out that in respect of the Rajapur STP, even certain machines and equipments have flown in the river water and the
entire STP was submerged in the flood water causing damage to the machines. The agencies who have been entrusted to oversee the construction
of STP design and supervise the construction of STP are the technical experts who were supposed to take all care by utilizing the huge public
money. The authorities have not taken proper care in constructing the Ring Bandh in a manner to save it from the river water which is an act of
negligence and cannot be excused. Huge public funds cannot be allowed to be wasted and mis-utilised in this manner. The responsibility and
accountability of such negligence has to be fixed by the Government and stern action need to be taken.
8. Shree Prakash Singh, Special Secretary, Urban Development Department has filed affidavit in compliance of our earlier order dated 19.7.2013,
by which we had directed the Principal Secretary, Urban Development Department to inspect the STP, specially the newly constructed STP. An
inspection was made by the Principal Secretary, Urban Development Department on 5.8.2013 and 8.8.2013. With regard to the Salori STP
following was recorded in the inspection:
After 22.7.2013 this STP was closed because of closer of flood control gate of buxi bund due to rise of water level in the river Ganga at
Allahabad. After closer of the Gate, no sewage is received at STP as it is being pumped directly into the river Ganga through Allapur Flood
pumping station. During inspection, STP was closed. This STP can be made operational only after opening of the sluice gate of buxi bund which is
possible only after receding the river water below the invert of the Gate.
With regard to the Rajapur STP following was recorded in the inspection:
Presently, this STP is submerged in flood water of river Ganag. Ring bund all around the STP has to be constructed for the flood protection of the
STP. Because of incomplete work of the rink bund, floodwater entered into STP premises on 30.7.2013 and all the instruments are submerged.
During the time of inspection this STP was also closed.
9. Extensive damaged caused to both the STP''s i.e. at Salori and Rajapur is a matter of serious concern and alarm.
10. As observed above, the responsibility and accountability has to be fixed and action taken against all those slack officials due to whose misdeed
STP''s have been damaged. Appropriate action is also required to be taken against the construction company which was entrusted in construction
of STP & Ring Bandh and inquiry and action need to be taken at the highest level.
11. We direct the Principal Secretary, Urban Development Department, to institute an inquiry in the above matter and complete the same within a
short span of time and place before the Court the action taken. We, further observe that the Principal Secretary, Urban Development Department,
shall bring into the notice of the Chief Secretary of the State this order who may ensure that appropriate enquiry is conducted and action taken in
the matter to fix the responsibility. We, further direct the Principal Secretary, Urban Development Department to take immediate measures to
make the both STP''s functional and to take all remedial measures including the protection of both the STP''s so that it cannot be damaged by any
further floods.
12. We have already noted that Sri A.K. Mishra, learned Senior Counsel for the Allahabad Development Authority, submitted that the Allahabad
Development Authority is immediately taking steps for drawing a line to freeze further construction on both sides of river Ganga and sketch that
freezing line (hereinafter referred to as the ""red line"").
13. In the above regard we issue following directions:
1. The Allahabad Development Authority with collaboration of the District Administration shall freeze all construction and draw a red line covering
the entire open area on both sides of river Ganga from Old Yamuna Pul to Draupadi Ghat at first stretch and prepare a map accordingly.
2. Red line shall be marked with permanent marks so that no further construction activity may be possible after red line and in event any
construction is reported, serious action be taken against the officials and employees of the Allahabad Development Authority.
3. In drawing the red line, the Allahabad Development Authority shall take within its fold the entire vacant area within 500 metres from highest
flood level which map has already been prepared.
4. Drawing of red line as indicated above, shall be completed within one month from today.
5. The Allahabad Development Authority shall also prepare a map marking the extent up to which the flood water has reached this year. This map
should conform to the videography of the area which has already been photographed by the Allahabad Development Authority.
Dredging Machine
14. An affidavit has been filed by Shri Deepak Singhal, Principal Secretary, Irrigation Depart, Government of U.P. in compliance of our earlier
order dated 19.7.2013. In our earlier order dated 19.7.2013, we had issued following directions:
On 15th May, 2013, we required the learned Chief Standing Counsel to bring on record the report regarding purchase of two dredging machines
at Allahabad for providing a dedicated course to the river Ganges towards the city side of Allahabad. On 29th May, 2013 a statement was made
on behalf of the State that a dredging machine had been provided for the river at Allahabad. Today, an affidavit has been filed by Mr. Sangram
Singh, Superintending Engineer, Irrigation Works Circle, Allahabad stating that despite best efforts, the department could not purchase the
required dredging machines. In paragraph-3 it has been stated that B tendering process was initiated in response to which only one tenderer made
a bid which had to be cancelled on technical ground.
The affidavit shows slackness on the part of the State to purchase the dredging machine. The machine is necessary for dredging specially in lean
season for maintaining the minimum flow of water in river Ganges at Allahabad.
We call upon the Principal Secretary, Irrigation Department, U.P. Government at Lucknow to explain as to what further steps for purchase of
dredging machine have been taken and as to why the orders of the Court arc being treated so indifferently. If tenders are not received, why
purchase is not being made after negotiation with the manufacturers.
15. In the affidavit which has been filed by the Principal Secretary, Irrigation Department it has been stated that the State Government has directed
on 5.6.2012, to the Principal Secretary, Irrigation Department to purchase two dredging machines for Kumbh Mela. The order of the State
Government has been filed as Annexure-SA-2. It has further been stated in the affidavit that E-tender was invited which was opened in August,
2012, and only one bid was received by M/s. Tech Pro Infra Project Ltd. Kochin, Kerala hence the tender was cancelled. It has further been
stated in the affidavit that again the E-tender was called in the year 2013, but no bid was received. The Affidavit states that "".....since the last
tender notice had no bidder, hence the question of negotiation does not arise, due to the mentioned reasons the dredging machine could not be
purchased....
16. In para 10 of the affidavit following has been stated:
10. In view of the Kumbh Mela get ting over and the report communicated by the requisitioner, there is no requirement of the dredging machine.
Presently there is no proposal to purchase the dredging machine.
17. We are surprised to note the stand taken by such high official of the rank of Principal Secretary, Irrigation Department regarding the purchase
of dredging machine. The State Government, inspite of our clear direction to purchase two dredging machines, has not complied with the order of
this Court and the Principal Secretary, Irrigation Department now comes up with the plea that since the Kumbh Mela is over, there is no
requirement of purchasing dredging machines. The Government Order dated 5.6.2012, filed by the Principal Secretary, Irrigation Department,
itself belies the above stand of the Irrigation Department. The State Government vide its order dated 5.6.2012, has directed for purchase of
dredging machines. The Government Order dated 5.6.2012, further contemplates that work of dredging machine shall start after rainy season in
accordance with the technical advise. The dredging machines were not contemplated to purchase only for the Kumbh Mela period i.e. between
January to March, 2013, rather, the dredging machines were to be purchased for being utilised for dredging of the river throughout the year. The
State Government cannot escape from its responsibility to purchase the dredging machines on such lame excuses as has been stated in the affidavit.
In our earlier order dated 19.7.2013, we had clearly directed the State Government to explain as to why the purchase of dredging machines have
not been made after negotiation with the manufacturers, if the tenders are not received, there was clear stipulation that even if there arc no tenders
received, Government should negotiate with the manufacturers. The Principal Secretary, Irrigation Department in his affidavit in para 9 says that
since no bidder has come up, hence the question of negotiation does not arise. The above stand is clearly contrary to the directions of this Court
and shows the lack of will in the State Government to comply with the orders of the Court. The purchase of dredging machines was directed with
several objects as noted by us in our earlier order so that the river may contain sufficient water even in the lean period. We disapprove the stand
taken by the Principal Secretary, Irrigation Department, in its affidavit and again direct him to ensure buying of two dredging machines for purchase
as per our earlier directions. In event, no response is given to the tender notice, with the approval of the State Government, the Department can
proceed to directly order for purchase of the dredging machines from the manufacturers.
18. We direct the State Government and the Irrigation Department to ensure that all steps for purchase of dredging machines be completed within
three months from today and the Court be informed.
Maintenance of Green Belt in City of Allahabad and both sides of River Ganga
19. Article 48A of the Constitution of the India enjoins that ""The State shall endeavour to protect and improve the environment and to safeguard
the forests and wild life of the country.
20. Article 51A(g) of the Constitution of the India imposes a fundamental duty on 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.
21. Article 21 of the Constitution of the India protects the right to live as a fundamental right. Environmental, ecological, air and water pollution etc
are regarded amounting to violation of Article 21 of the Constitution. Environmental protection has now become a matter of great concern for
human existence.
22. The Apex Court in Virender Gaur and Others Vs. State of Haryana and Others, , in para 7 has laid down to the following effect:
7. 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 now 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 a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also
an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment.
23. In U.P. Nagar Mahapalika Adhiniyam, 1959, Section 114 provides for ""Obligatory duties of the Mahapalika"".
24. Section 114(xxx) is quoted below:
114. Obligatory duties of the Mahapalika.--It shall be incumbent on the Mahapalika to make reasonable and adequate provision, by any means or
measures which it is lawfully competent to it to use or to take, for each of the following matters, namely-
(i).......
(ii)......
(iii).....
(xxx) planting and maintaining trees on road sides and other public places.
25. The protection of environment in all cities including the city of Allahabad which is surrounded by rivers Ganga and Yamuna on three sides has
become most important on account of increasing pollution, urbanization and increase of vehicular traffic day by day.
26. In the affidavit filed by the Nagar Nigam, Allahabad which has been brought on record it has been stated that the population of the city is
increasing by 21.74 percent per year and the number of vehicles in the city is increasing by 28%. Emission of Carbon Dioxide (CO2) from over
increasing vehicles require substantial increase in greenery and plantation in the city. The Municipal Corporation is entrusted with the obligatory
duty of the plantation of trees in the city. Maintenance of greenery in the open area of the city has now become a must. Greenery in the city
functions as a lung of the society which functions as source of oxygen to the citizens.
27. The Apex Court had occasion to consider the necessity of open space, public parks in the context of town planning in Bangalore Medical
Trust Vs. B.S. Muddappa and others, . The Apex Court held that the protection of environment, open space for recreation and fresh air are the
matters of great public concern. The Apex Court held that a preservation of open space for parks and playground protects the residents of the
locality from the ill-effect of urbanization. It is useful to quote the observation made in para 36 which is to the following effect:
36. Public park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated with growth of the
concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result
of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now it is a ''gift
from people to themselves''. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it
occupies an important place in social ecology. A private nursing home, on the other hand, is essentially a commercial venture, a profit oriented
industry. Service may be its moto but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A
private nursing home cannot be a substitute for a public park. No town planner would prepare a blueprint without reserving space for it. Emphasis
on open air and greenery has multiplied and the city or town planning or development Acts of different States require even private house owners to
leave open space in front and back for lawn and fresh air. In 1984, the BD Act itself provided for reservation of not less than fifteen per cent of the
total area of the lay out in a development scheme for public parks and playgrounds, the sale and disposition of which is prohibited under Sec. 38A
of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested
areas are coming up rapidly, may give rise to health hazard. May be that it may be taken care of by a nursing home. But it is axiomatic that
prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home. To say, therefore, that by
conversion of a site reserved for low lying park into a private nursing home, social welfare was being promoted was being oblivious of true
character of the two and their utility.
28. As noted above, the city of Allahabad is surrounded by river on three sides, emission of carbon dioxide by way of traffic in the city of
Allahabad and around river is also a cause of increase of river pollution. The emission of carbon dioxide in the city has to be contained by taking
measures to lessen the adverse impact on the river by maintaining green belt in the city of Allahabad. In our earlier order dated 19.7.2013, we
have observed as follows:
An affidavit has been filed by Sri Vikram Singh, Municipal Commissioner, Nagar Nigam, Allahabad. With regard to development of green belt
after the road patry, averments made in the affidavit are supported by the photographs. It has been stated by Sri S.D. Kautilya, learned counsel for
the Nagar Nigam that an advertisement has been published in newspaper requesting institutions and other Non-Government Organizations to
submit their proposals for maintaining greenery at the sides of various roads in the city of Allahabad. Mr. Kautilya submits that certain proposals
have been received in reply to the notice published in the newspaper. He states that concrete guidelines for maintaining the green belt in city of
Allahabad are under consideration.
We are of the view that Nagar Nigam, Allahabad has not done the needful in the matter. Necessary guidelines for maintaining the green belt at the
side of various roads of Allahabad should have been framed first before inviting offers. Let the guidelines be framed and reported to the Court by
the next date.
We may record that the Nagar Nigam may first determine the area road-wise, which is to be preserved as green belt. This area must be especially
demarcated in the map to be prepared for the purpose.
It has to be kept in mind that maintenance of green belt at the sides of the roads should not be confused with setting up of nurseries, where
commercial activity of selling of plants, seeds etc. is undertaken. The Nagar Ayukt shall ensure that at all the places, where nurseries arc running in
the garb of maintenance of green belt are closed immediately and in no case any commercial activity is permitted from such nurseries. The Nagar
Ayukt, Allahabad shall file his personal affidavit enclosing the action taken report, as per the direction.
29. The Nagar Nigam, Allahabad, in compliance of our earlier order dated 19.7.2013, has filed an affidavit of Additional Municipal
Commissioner, Nagar Nigam, Allahabad, bringing on record the ""Green Belt Development Plan of Allahabad Urban Area"".
30. Shri Anand Mohan, who has been permitted to intervene in this Public Interest Litigation as a public spirited person has also filed an
intervention application. It has been stated in the affidavit that the maintenance of green belt/greenery is the duty of the Municipality. Referring to a
news item dated 9.9.2013, issued by the Nagar Nigam, Allahabad he has brought on record the objections filed before the Nagar Nigam on
behalf of the nurseries for not removing the nurseries. It is submitted by Shri Anand Mohjan who appears in person that nurseries serve a public
purpose and help greenery to be maintained in the city to improve the environment and they should not be removed.
31. We have gone through the Green Belt Development Plan submitted by the Nagar Nigam, Allahabad which has been brought on record by the
affidavit dated 12.9.2013, and noted the various proposals for maintaining the green belt in the open space on the road side after patry. Different
proposals have been given re grading the manner of maintaining the Green Belt relating to the extent of open area available.
32. Land spacing and plantation has been proposed for open area available of more than 18 metres in width. Land spacing fencing by iron welding
and plantation has been proposed. Similarly, proposals have also been given for the areas up to 3 metres. Maintenance of green belt in all open
areas on the road side after road patry has now become a necessity for combating the over increasing pollution. In the city of Allahabad nurseries
provide a green cover to the earth and serve the residents of the city for maintaining greenery in their respective houses also.
33. We had earlier directed that road parties should not be occupied or encroached by anyone including the nurseries. For smooth traffic our road
parties have to be cleared from encroachment including the encroachment by nursery, if any. Our order thus has to be read as directing the
removal of all encroachments including the removal of all nurseries from the road patry, but after road parry if there are sufficient space, nurseries
may be established. However, for maintaining the greenery according to green belt development plan of the Nagar Nigam, if the nurseries have to
be shifted to some other place reasonable time be allowed to them. We, however, further emphasise that there should be proper and fair allotment
to all individuals/organisations to maintain the green belt/nurseries. Nagar Nigam can also grant permission as has been suggested in its Green Belt
Development Plan to the owner of the houses to maintain the greenery according to the terms and conditions and plan as provided in the
permission. All permissions for allotment granted for maintaining the green belt/nursery can be cancelled by the Nagar Nigam, if there is any
violation of any terms and conditions.
34. We again emphasise that no permanent construction can be permitted in any of the area which is being used for green belt or for nursery. The
nurseries can carry out commercial activity of selling and purchasing plant subject to the terms and conditions as laid down by the Nagar Nigam.
Nurseries cannot be made a dwelling place for persons running a nursery. The persons maintaining the nursery can utilise the place only for the
purposes of protection of plants and trees by temporary construction only.
35. In view of the foregoing discussions, we approve the Green Belt Development Plan submitted by the Nagar Nigam, Allahabad as quoted
above, and direct the Nagar Nigam, Allahabad to maintain the Green Belt Development Plan as per its plan and implement the same. However,
the implementation of Green Belt Development Plan shall be subject to some general conditions hereinafter laid down which shall be treated to be
in modification of any of our earlier orders passed by us:
1. There shall be no Green Belt or nursery on the road patry of a road, all encroachment from road patry including that of green belt/nursery have
to be removed forthwith.
2. Maintenance of Green Belt/Nursery if undertaken by an individual/organization/institution, the same has to be with appropriate
permission/allotment by the Nagar Nigam to be so done in a fair and proper manner.
3. For maintenance of Green Belt, organization/institution who are situate in the vicinity of the said area may be given some preference as per the
policy framed by the Nagar Nigam in that regard.
4. In event the existing nurseries which are running on in the open area are required to be shifted, they be allowed reasonable time say about 2
months to shift at appropriate place after due allotment.
5. A transparent method for permission/allotment of maintenance of Green Belt/Nursery shall be published by the Nagar Nigam in the newspaper
so that the public in general may know the procedure and method for obtaining such permission.
36. The Green Belt Development Plan, submitted by the Nagar Nigam, Allahabad itself has proposed constitution of a Urban Environmental
Protection Agency headed by Divisional Commissioner, Allahabad. We fully approve the aforesaid proposal of the Nagar Nigam Allahabad and
direct that a committee headed by the Divisional Commissioner, Allahabad namely: ""Urban Environmental Protection Agency"" be constituted which
may supervise the environmental plan and issue necessary directions to all concerned including the Nagar Nigam, Allahabad, Allahabad
Development Authority, Forest Department, Zila Udyan Adhikari and other concerned departments. The Divisional Commissioner, Allahabad,
shall constitute an appropriate committee as proposed in the Green Belt Development Plan which shall supervise the implementation of the Green
Belt Development Plan.
37. The Allahabad Development Authority shall with collaboration of Forest Department shall start plantation of suitable trees in the green belt area
on both sides of river alongwith red line to be drawn as per our abovementioned directions. The appropriate map and plan for above plantation of
trees in the green belt area of on both bank of river Ganga shall be prepared and submitted in the Court within one month.
Construction on raised Foot Path.
38. An affidavit of Dr. Rajneesh Dube, Principal Secretary, P.W.D. has been filed bringing on record the Government Order dated 12.8.2013, by
which the financial sanction has been given for construction of raised foot path at Mahatma Gandhi Marg, Kamla Nehru Marg and Stanley Road.
We direct that the work of construction on raised foot path may be initiated immediately and completed within reasonable time.
STP''s at Cantonment, Allahabad.
39. An affidavit has been filed by Col. Sunil Kumar, in which the date of commencement of various STP''s in 3 Cantonment Areas, Allahabad has
been given. The date of commencement has been indicated as 26.12.2013. We direct all the three STP''s may be made functional by the aforesaid
date and affidavit of compliance may be filed. Dr. H.N. Tripathi, has also filed an affidavit on behalf of the U.P. Pollution Control Board, which
shall be considered on the next date of hearing i.e. 30.9.2013, at 2 p.m.