M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD. Vs UNION OF INDIA THROUGH SECRETARY MINISTRY OF ENVIRONMENT AND FOREST
Judgment by: HON'BLE MR. JUSTICE DEEPAK GUPTA
Case number: C.A. No.-010854-010854 / 2016
Diary number: 37233 / 2016
Advocates: VENKITA SUBRAMONIAM T.R Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10854 OF 2016
M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD. … Appellant (s)
Versus
UNION OF INDIA THROUGH SECRETARY
MINISTRY OF ENVIRONMENT AND FORESTS & ORS. …Respondent(s)
With
CIVIL APPEAL NO. 10901 OF 2016
CIVIL APPEAL NO. 5157-5158 OF 2018
J U D G M E N T
Deepak Gupta, J.
Applications for intervention/impleadment are allowed.
Application for amendment of grounds of appeal in Civil Appeal
No.10854 of 2016 allowed.
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2. These matters are being decided by one judgment since they
all arise out of one original application filed by Shri Tanaji
Balasaheb Gambhire (hereinafter referred to as ‘the original
applicant’) before the National Green Tribunal (‘the NGT’ for short)
being Application No. 184 of 2015.
3. The original applicant filed an application before the NGT
claiming that the project proponent i.e. M/s. Goel Ganga Developers
India Pvt. Ltd., had raised construction in violation of the
Environmental Clearance (‘EC’ for short) granted for the project and
also in violation of the various municipal laws. It was prayed that
the illegal structures be demolished; the State Level Environment
Impact Assessment Authority (SEIAA) and the Maharashtra State
Pollution Control Board be directed to initiate appropriate action
against the project proponent for violation of the Environment
Impact Assessment (EIA) Notification, 2006; the Union of India be
directed to take action against the SEIAA; and lastly it was prayed
that the project proponent be directed to pay/deposit a heavy
amount of compensation in the environment relief fund. The NGT
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vide its order dated 27.09.2016 allowed the application in the
following terms:
“54. For the aforesaid reasons, the Applicant succeeds in
his legal pursuit to challenge the noncompliance of EC
conditions by the Respondent-9 and obtain certain
directions. Hence the Application is allowed and we issue
following directions:
1. The Respondent No.9-PP shall pay environmental
compensation cost of Rs. 100 crores or 5% (Five percent)
of the total cost of project to be assessed by SEAC
whichever is less for restoration and restitution of
environment damages and degradation caused by the
project proponent by carrying out the construction
activities without the necessary prior environmental
clearance within a period of one month. In addition to
this, it shall also pay a sum of Rs. 5 crores for
contravening mandatory provision of several
Environmental Laws in carrying out the construction
activities in addition to and exceeding limit of the
available environment clearance and for not obtaining
the consent from the Board.
2. In view of our finding that there has been manifest,
deliberate or otherwise suppression of facts of illegality in
the project activity of Respondent No. 9-PP by the officer
of PMC, we impose fine of Rs. 5 Lakhs upon the PMC
and direct Commissioner PMC to take appropriate action
against the erring officers. The amount of Rs. 5 Lakh
shall be paid within one month.
3. We direct the Chief Secretary, State of Maharashtra and
the competent authority to take notice of the conduct of
the officers concerned who have misled the Department
of Environment in the matter relating to interpretation of
F.S.I and BUA in terms of which order dated 31st May,
2016 has been issued in particular the Principal
Secretary, Department of Environment who has authored
the order dated 31st May, 2016.
4. PMC, DoE and SEIAA are directed to pay cost of Rs. 1
lakh each to the Applicant within 4 weeks.”
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4. Aggrieved by the aforesaid order of the NGT, the project
proponent filed Civil Appeal No. 10854 of 2016. The Pune
Municipal Corporation (‘PMC’ for short) also challenged the said
order in so far as it adversely affects the PMC by filing Civil Appeal
No. 10901 of 2016.
5. Review application being Application No. 35 of 2016 was filed
by the original applicant before the NGT. This application was
partly allowed on 08.01.2018 and direction No. 1 in the original
order dated 27.09.2016 was modified and substituted as under:
“1. The Respondent No.9-PP shall pay environmental
compensation cost of Rs.190 crores or 5% (Five percent) of
the total cost of project to be assessed by SEAC, whichever is
more, for restoration and restitution of environment damage
and degradation caused by the project proponent by carrying
out the construction activities without the necessary prior
environmental clearance within a period of one month. In
addition to this, it shall also pay a sum of Rs. 5 crores for
contravening mandatory provision of several Environment
Laws in carrying out the construction activities in addition to
and exceeding limit of the available environment clearance
and for not obtaining the consent from the Board.”
6. Thereafter, the project proponent filed I.A. No. 8000 of 2018
for permission to amend its appeal permitting it to challenge the
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order passed in review application dated 08.01.2018, which we
have allowed.
7. Appeal being Diary No. 3911 of 2018 was filed by the original
applicant challenging the original order dated 27.09.2016 as well as
the order dated 08.01.2018 passed in review application praying
that demolition of the illegal structures be ordered and the
compensation be enhanced to Rs.500 crores.
The Factual Matrix
8. The facts briefly stated are that the project proponent
purchased 79,100 sq. mtrs. or 7.91 hectare of land comprised in six
Survey Nos. 35, 36, 37, 38 39 and 40 in Vadgaon, Pune. These
survey numbers were amalgamated in accordance with the rules
and the plot became one plot of 79,100 sq. mtrs. From the
documents placed on record it is apparent that as per the
Development Control Plan for the city of Pune, 3 roads of the width
of 36 mtrs., 30 mtrs. and 18 mtrs. bisected this plot into two which
for the sake of convenience were referred to as Plot No. 1 and Plot
No. 2. As per the Development Plan, there are certain statutory
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reservations in addition to the roads and some land has to be left
out or reserved for schools, cultural centres, open areas etc.. The
remaining area is referred to as the ‘Balance Plot Area’ which in this
case works out to 46,993.79 sq. mtrs.. Out of this ‘Balance Plot
Area’ 15% is to be reserved for amenity space and another 10% area
is to be compulsorily left out as open space leaving ‘Net Plot Area’ of
41,455.21 sq. mtrs.. Prima facie these calculations do not appear
to be correct. However, this will not impact the merits of the case.
Be that as it may, the undisputed fact is that FSI has to be
calculated on the ‘Net Plot Area’. We may, at this stage, point out
that the aforesaid figures are based on the written submissions
submitted on behalf of the Union of India by the learned Additional
Solicitor General and these figures have not been disputed
before us.
9. On 12.03.2007, the project proponent applied for sanction of
lay out and building proposal plan on an area of 15,141.70 sq.
mtrs., originally depicted as Plot No. 3 and the sanctioned FSI was
15313.16 sq. mtrs.. Thereafter, on 05.09.2007, revised lay out plan
was submitted for an area measuring 28,233.23 sq. mtrs. and the
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sanctioned FSI was 39,526.54 sq. mtrs.. The project proponent
applied for EC for the project and in the proposal dated 27.06.2007,
he had shown that he would be erecting/constructing 12 buildings
having 552 flats, 50 shops and 34 offices. The 12 buildings were to
have stilts with basement and 11 floors. The total built up area was
indicated as 57,658.42 sq. mtrs.. The EC was granted to the
project proponent on 04.04.2008. Paras 2 and 3 of the
communication granting EC read as under:
“2. The project proponent is proposing for construction of
group housing project at S.No.35 to 40, village Vadgaon
Budruk, Singhad Road, Pune, Maharashtra at a cost of Rs.
10,737.14 lakh. The project involves construction of 12
Building with Stilt, Basement plus 11 floors for 552 flats, 50
shops and 34 offices. The total plot area is 79,100.00 sq. m.
Total built up area as indicated is 57,658.42 sq. m. Total
water requirement will be 745 KLD and 400 KLD of waste
water will be generated from the buildings which will be
treated in sewage treatment plant. The treated waste water
will be used for landscaping, DG set cooling and Horticulture
purpose. The solid waste generated from the buildings will
be 1500 Kg/day and disposed as per the MSW Rules, 2000.
The parking space is proposed for parking of 1072 cars.
“3. The EAC after due consideration of the relevant
documents submitted by the project proponent and
additional clarifications furnished in response to its
observations have recommended the grant of environmental
clearance for the project mentioned above subject to
compliance with the EMP and other stipulated conditions.
Accordingly, the Ministry hereby accords necessary
environmental clearance for the project under category 8 (a)
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of EIA Notification 2006 subject to the strict compliance with
the specific and general conditions mentioned below:”
10. The EC was granted subject to certain conditions. We may
refer to certain relevant conditions which read as under:
“PART A- SPECIFIC CONDITIONS
I. Construction Phase
xxx xxx xxx
v. Permission to draw and use ground water for
construction work shall be obtained from competent
authority prior to construction/operation of the project.”
“5. In the case of any change(s) in the scope of the project,
the project would require a fresh appraisal by this Ministry.”
Concept of ‘Built up Area’ under the notification dated 14.09.2006:
11. It is not disputed that the EC was granted for built up area of
57,658.42 sq. mtrs.. The main dispute is with regard to the
interpretation of the term ‘built-up area’. The case of the project
proponent is that the term ‘built up area’ is synonymous with ‘Floor
Space Index’ or FSI and that the constructed area, which is
exempted from FSI area or is a non-FSI area is not a part of the
‘built up area’. On the other hand, the submission made by the
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original applicant as well as by the learned Additional Solicitor
General appearing for the Ministry of Environment, Forest and
Climate Change is that the built up area will cover all constructed
area and the concept of FSI area or non-FSI area is totally alien to
environmental laws. Learned senior counsel for the project
proponent has drawn our attention to the Development Control
Rules for Pune Municipal Corporation, Pune, 1982 (‘DCR’ for short).
Under the DCR, no building can be constructed without grant of
building permission/commencement certificate by the Pune
Municipal Corporation. There is a detailed procedure for obtaining
the building permission/commencement certificate wherein lay out
plans, building plans etc. have to be submitted. The main
emphasis was on Rule 2.13 of the DCR, which defines built up area
as follows:-
“2.13 Built-up Area – Area covered immediately above the
plinth level by the building or external area of any upper
floor whichever is more excepting the areas covered by Rule
No. 15.4.2.”
Rule 2.39 defines Floor Area Ratio as follows:-
“2.39 Floor Area Ratio (F.A.R.) – The quotient obtained by
dividing the total covered area (plinth area) on all floors
excluding exempted areas as given in Rule No. 15.4.2 by the
area of the plot.
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F.A.R. = Total covered area on all floors Plot Area
NOTE – The term F.A.R. is synonymous with Floor Space
Index (F.S.I.)”
Strong reliance is placed on Rule 15.4.2 which reads as under:-
“15.4.2 In addition to Rule No. 15.4.1.1 (a) (b) and (c) and 17.7.3 the following shall not be included in covered area or
F.A.R. and Built-up Area calculations.”
(a) A basement or cellar space under a building
constructed on stilts and used as parking space, and
air-conditioning plant rooms used as accessory to the
principal use;
(b) Electric cabin or substation, watchman’s booth of
maximum size of 1.6 sq.m. with minimum width or
diameter of 1.2 m, pump house, garage shaft, space
required for location of fire hydrants, electric fittings
and water tanks;
(c) Projections as specifically exempted under these
rules.
(d) Stair case room and/or lift rooms above the top most
storey, architectural features, chimneys, elevated
tanks of dimensions as permissible under these rules.
Note: The shaft provided for lift shall be taken for covered
area calculations only on one floor upto the minimum
required as per these rules.
(e) One room admeasuring 2m x 3m on the ground floor
of co-operative housing societies or apartment
owners/co-operative societies buildings and other
multistoreyed building as office-cum-letter box room.
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(f) Rockery, well and well structures, plant, nursery,
water-pool, swimming pool, (if uncovered) platform
round a tree, tank fountain, bench, chabutra with
open top and unenclosed sides by walls, ramps,
compound wall, gate, slide, swing, overhead water
tank on top buildings;
(g) Deleted.
(h) Sanitary block subject to provision of rules no. 15.4.1
(a) and Built-up area not more than 4 sq. m.”
12. The contention of learned senior counsel appearing for the
project proponent is that while calculating the built up area the
constructions mentioned in Rules 15.4.1.1 (a), (b) and (c) and Rule
17.7.3 in addition to the areas specifically exempted under Rule
15.4.2 are to be excluded. He submits that if the built up area is
calculated in accordance with the DCR then the project proponent
has till date not constructed the built up area of 57,658.42 sq.
mtrs., which it was permitted to construct under the EC granted to
it on 04.04.2008. On the other hand, the stand of the Union of
India and the original applicant is that built up area means all area
which is covered regardless of the area being FSI or non FSI in
terms of the EIA Notification of 2006. The Building/Construction
projects are covered by Item No. 8 of the Schedule to the EIA
Notification dated 14.09.2006. Construction of a project which is
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covered under the schedule can be commenced only after obtaining
EC in terms of Para 2 of the said notification. The schedule itself
categorises the various projects and activities into two categories
being ‘Category A’ and ‘Category B’. ‘Category A’ projects require
clearance by the Central Government in the Ministry of
Environment, Forest and Climate Change on the recommendation
of the Expert Appraisal Committee to be constituted by the Central
Government whereas those activities which form ‘Category B’ of the
schedule including modernization and expansion of such projects
require EC from the State/Union Territory Environment Impact
Assessment Authority (SEIAA) and such authority is required to
base its decision on the recommendation of the State/Union
Territory Level Expert Appraisal Committee (SEAC). There is
further division of ‘Category B’ into B1 and B2. B1 projects require
Environmental Impact Assessment (EIA) report to be prepared and
scoping to be done whereas B2 projects do not require any
Environmental Impact Assessment report. Item No. 8 of the
Schedule, with which we are concerned, reads as follows:
(1) (2) (3) (4) (5)
8 Building/Construction projects/Area Development projects and Townships
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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.
13. From a bare perusal of the two hash tags (#) in Column 4 and
5 of Item 8(a), it is apparent that what is shown under Column 5 is
actually a continuation of Column 4 and basically it describes or
defines ‘built up area’ to mean covered construction and if the
facilities are open to the sky, it will be taken to be the activity area.
This by itself clearly shows that under the notification of 2006, all
constructed area, which is covered and not open to the sky has to
be treated as ‘built up area’. There is no exception for non-FSI area.
14. Indeed, the concept of FSI or non-FSI has no concern or
connection with grant of EC. The same may be relevant for the
purposes of building plans under municipal laws and regulations
but it has no linkage or connectivity with the grant of EC. When EC
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is to be granted, the authority which has to grant such clearance is
only required to ensure that the project does not violate
environmental norms. While projects and activities, as mentioned
in the notification, may be allowed to go on, the authority while
granting permission should ensure that the adverse impact on the
environment is kept to the minimum. Therefore, the authority
granting EC may lay down conditions which the project proponent
must comply with. While doing so, such authority is not concerned
whether the area to be constructed is FSI area or non-FSI area.
Both will have an equally deleterious effect on the environment.
Construction implies usage of a lot of materials like sand, gravel,
steel, glass, marble etc., all of which will impact the environment.
Merely because under the municipal laws some of this construction
is excluded while calculating the FSI is no ground to exclude it
while granting the EC. Therefore, when EC is granted for a
particular construction it includes both FSI and non-FSI areas. As
far as environmental laws are concerned, all covered construction,
which is not open to the sky is to be treated as built up area in
terms of the EIA Notification dated 14.09.2006.
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Notification of 04.04.2011
15. Our attention has been drawn to the notification dated
04.04.2011 issued by the Ministry of Environment and Forests. By
means of this notification, the words of Column 5 against Item 8(a)
have been replaced and substituted as under:
“The built up area for the purpose of this Notification is
defined as “the built up or covered area on all the floors put
together including basement(s) and other service areas,
which are proposed in the building/construction projects”.”
This notification clearly defines built up area as all constructed area
including basement and service areas without any exception.
16. Learned senior counsel appearing for the project proponent
has submitted that this notification is only prospective in nature
and, therefore, will not affect the notification of 2006. On the other
hand, it has been submitted by the original applicant that this is
only a clarificatory notification and as such it will come into force
with effect from 2006. In our opinion, it is not at all necessary to
decide whether this notification is clarificatory or is in substitution
of the original notification of 2006. We say this because as held by
us above, there is no ambiguity with regard to the definition of ‘built
up area’ even under the notification of 2006 and it covers all
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constructed area not open to the sky. The notification of 2011 only
provides that the built up area or covered area shall be the area of
all floors put together including basement(s) and other service
areas. We may again re-emphasize that this definition also is in
consonance with the concept of grant of EC for construction as
explained above and it is obvious that the concept of FSI or non-FSI
area is alien to environmental laws.
Clarification dated 07.07.2017
17. Strong reliance has been placed by the project proponent on
the office memorandum dated 07.07.2017 issued by Dr. Ashish
Kumar, Joint Director, Ministry of Environment, Forest and Climate
Change. The said office memorandum reads as follows:-
F.No. 22-35/2017-IA.III Government of India
Ministry of Environment, Forest and Climate Change (Impact Assessment Division)
******
Indira Paryavaran Bhawan Jor Bag Road, Aliganj,
New Delhi-110 003
Dated 7th July, 2017
OFFICE MEMORANDUM
Sub: Clarification on the date of applicability of notification S.O.(E) 695 dated 04.04.2011 issued by MoEF & CC defining
‘Built Up Area’ of the project
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The Ministry is in receipt of a reference dated 03.04.2017 from Confederation of Real Estate Developers Association of India (CREDAI) seeking clarification on above mentioned subject. The CREDAI has requested that the definition of Built Up Area (BUA)
given vide notification S.O.695(E) dated 04.04.2011 should have prospective effect. 2. The matter has been examined in the Ministry. The BUA defined in the notification S.O. 1533 (E) dated 14th September, 2006 mentions at Item 8 (a) columns 4 and 5 “built up area for covered construction, in the case of facilities open to sky, it will be the activity area”. 3. The Ministry has further defined BUA vide its notification S.O.695 (E) dated 04.04.2011 which reads as, “the built up or covered area on all the floors put together including its basement and other service areas, which are proposed in the building or construction project.” 4. The definition provided in the Ministry’s notification will have its effect from the prospective date of the notification only. The projects which are not covered in the period of above notifications should be assessed as per the definition of built up area provided in the building bye-laws or Development Control Regulation (DCR) of the local authorities in the States. 5. This issues with approval of Competent Authority.
Sd/- (Dr. Ashish Kumar)
Joint Director Ph:011-24695474
Email:ashish.k@nic.in All States/UTs/SIEAAs/MoEF & CC Divisions
It is urged on the basis of the aforesaid memorandum that prior to
the notification dated 04.04.2011, the built up area had to be
calculated and assessed as per the building bye-laws or the
Development Control Regulations of the local authorities in the
States. On behalf of the original applicant it has been urged that
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this memorandum is meaningless and that it has been issued when
the matter was pending before the NGT, at the instance of one of
the Directors of the project proponent, Shri Atul Goel, who was
Joint Secretary of Confederation of Real Estate Developers
Association of India (CREDAI), Pune.
18. Without going into this aspect of the matter, we are clearly of
the view that such an office memorandum could not and should not
have been issued. The notification dated 14.09.2006 is a statutory
notification issued in terms of Rule 5(3) of the Environment
(Protection) Rules, 1986 which provides that before such a
notification is issued the Central Government has to give notice of
its intention of issuing a notification and objections to the same are
invited. No doubt the Central Government is empowered in public
interest to dispense with the requirement of notice but this
obviously has to be done in exceptional cases. The notification
dated 14.09.2006 was issued by the Central Government and
published in the gazette after inviting objections from the public.
The first clarification with regard to this notification was issued on
04.04.2011 to which we have adverted above. These two decisions
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of the Central Government which were notified as per the provisions
of law could not have been set at naught by the Joint Director even
if it was issued with the approval of a higher authority. We are of
the view that since such decision has not been notified in the
gazette the statutory notification dated 14.09.2006 and its
subsequent clarification dated 04.04.2011 could not have been
virtually set aside by this office memorandum.
19. We are also of the view that the so called office memorandum
is not at all clarificatory in nature. As held by us above the
notification of 2006 with regard to ‘built up area’ was absolutely
clear and needed no clarification. We fail to understand how the
concept of built up area as understood in the building bye-laws or
DCR could be introduced into the notification of 2006 by this office
memorandum which virtually made the notification of 2006 totally
redundant. Therefore, we quash the office memorandum dated
07.07.2017.
20. This is not the first time that we have noticed such
clarificatory communications being issued by the officials of the
Ministry of Environment, Forest and Climate Change, which
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virtually have the effect of nullifying the statutory provisions and
notifications. We have adverted to some of these communications
in our judgment in Common Cause vs. Union of India1. We
expect the officials of the Ministry of Environment, Forest and
Climate Change to take a stand which prevents the environment
and ecology from being damaged, rather than issuing clarifications
which actually help the project proponents to flout the law and
harm the environment.
21. In view of the above, we are clearly of the view that the EC
granted to the project proponent on 04.04.2008 was for
constructing a total built up area of 57,658.42 sq.mtrs. and this
would include all covered construction not open to the sky. No
artificial division on the basis of FSI and non-FSI area can be made.
Therefore, the NGT was fully justified in coming to the conclusion
that the construction raised by the project proponent was in total
violation of the EC granted to it.
1 (2017) 9 SCC 499
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Environmental Clearance dated 20.11.2017
22. The project proponent has drawn our attention to the EC for
expansion of the project in question granted to it by the State Level
Environment Impact Assessment Authority (SEIAA) on 20.11.2017.
We may note that this clearance indicates that the existing
construction comprises of 738 flats and 115 shops which have been
completed, 69 flats and 2 shops which are under construction,
meaning thereby that 807 flats and 117 shops are already in
existence and in addition thereto 454 more flats and cultural centre
are sought to be constructed. This will take the total number of
flats to 1261 and number of shops to 117. We may also notice that
the SEIAA has laid down general conditions for pre-construction
phase and the first condition is as follows :-
“(1) This environmental clearance (EC) is issued for total built up area of 147219.45 m2 as approved by local planning
authority. It is noted that the total proposed construction
area is 147219.45 m2 which includes the area of previous EC (dated 04.04.2008) 57,658.42 m2 and the proposed
expansion area of 89,561.03 sq.m. However the above area
of 147219.45 sq.m. is notional as the NON FSI area
component of the previous EC is not included in 1,47,219.45 m2. After considering the NON FSI area of the previous EC
the total built up area becomes 1,81,230.94 m2. SEIAA has
also taken note of the clarification issued by MOEF and CC vide office memorandum dated 7th July, 2017, stating the
definition of built up area will be assessed as per the
building bye-laws or DCR of the local authorities in the states.”
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The aforementioned condition itself clearly shows that the non-FSI
area constructed by the project proponent under first EC of
04.04.2008 has not been taken into consideration. The project
proponent has raised construction in Plot No. 1 of an FSI area
measuring 48,424.66 sq. mtrs., and non-FSI area measuring
46,088.47 sq. mtrs.. Therefore, the total construction raised in Plot
No. 1 is 94,513.13 sq. mtrs.. In Plot No. 2 the construction raised
on an FSI area is 630.55 sq. mtrs. and on the non-FSI area is
4,858.57 sq. mtrs. and, therefore, the total construction already
raised in Plot No. 2 is 5,489.12 sq. mtrs.. The total construction
raised by the project proponent is 1,00,002.25 sq. mtrs. against the
built up area of 57,658.42 sq. mtrs. mentioned in the EC of
04.04.2008. This could not have been ignored by the SEIAA.
23. In case the total construction raised by the project proponent
is taken as 1,00,002.25 sq. mtrs. and if the area of the proposed
construction is added then the project will fall in B1 category and,
therefore, the SEIAA had no authority to grant EC by treating the
project as falling under Category B2. Furthermore, the EC dated
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20.11.2017 is also illegal as the same has been granted on the
presumption of the order dated 31.05.2016 passed by the Principal
Secretary, Environment Department, State of Maharashtra holding
that the construction of 18 buildings instead of 12 buildings is
permissible. The EC completely lost sight of the fact that the order
dated 31.05.2016 was quashed and set aside by the NGT in its
order dated 27.09.2016. We may note that the official who passed
the order on 31.05.2016 was the same official, who held the office of
Member Secretary of SEIAA, which granted environmental clearance
on 20.11.2017. Therefore, the EC dated 20.11.2017 was beyond
the authority of SEIAA and was granted under a totally false
assumption and the same is therefore quashed and set aside.
Allegations made by the original applicant against various officials
24. The NGT in its order dated 27.09.2016, has found that there
was suppression of facts by the officers of PMC. The NGT also
directed the Chief Secretary to the State of Maharashtra to take
notice of the conduct of the officers who were misleading the
Department of Environment. Costs were imposed on the PMC,
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Department of Environment and the SEIAA. This has been
challenged before us by the PMC.
25. The original applicant both in his original application filed
before the NGT and in appeal filed before us as well as in other
proceedings has made serious allegations against individual officers
of the PMC as well as the SEIAA and specially the Principal
Secretary, Environment Department, Govt. of Maharashtra.
However, for reasons best known to the original applicant none of
these individuals has been made a party in personal capacity in
these proceedings. The law is well settled that no person can be
condemned unheard. It would, therefore, not be fair on our part, to
deal with allegations made against individuals who are not parties
to the petition and who have had no chance to reply to the
allegations levelled against them. Therefore, we refrain from
commenting on the conduct of the officials in their individual
capacity.
26. However, as far as their official capacity is concerned, we are
of the view that the NGT was fully justified in coming to the
conclusion that certain officials of PMC were going out of their way
25
to help the project proponent and we, therefore, uphold the
directions given by the NGT in its order dated 27.09.2016 in this
regard. In view of what we have discussed above, it is more than
apparent that despite notifications of 2006 and 2011 being clear
and unambiguous, the officials of PMC have given an interpretation
which was tailor-made to suit the project proponent. This was
being done even before the clarification of 07.07.2017 was issued.
This clearly indicates that some officials of the PMC were espousing
the case of the project proponent at the cost of the environment.
27. We may also observe that prima facie we are of the view that
the Principal Secretary, Environment Department, Govt. of
Maharashtra has not acted in a fair and transparent manner. The
allegations made by the original applicant cannot be lightly brushed
aside. In the original order dated 27.09.2016, the NGT held as
follows :-
“42. From the extracted portion of the order dated 31st May,
2016 of Principal Secretary, Environment Department, it is
seen that he has declared construction of 18 buildings on the site instead of 12 buildings is permissible which,
according to him, only a changes on configuration of
buildings. This opinion undoubtedly is based on his
erroneous conclusion that total BUA which is nothing but F.S.I. consumed i.e. 48617.14 sq.mts which is within the EC
limit as against the actual construction activity which has
26
exceeded over 100000 sq.mtrs BUA. Hence we set aside that order/communication dated 31st May, 2016.”
The official holding the post of Principal Secretary must have been
aware of these directions because he was a party to the proceedings
before the NGT. Despite that, while granting fresh EC on
20.11.2017, this official noticed that reference to the Environment
Department for verification of files was withdrawn vide letter dated
31.05.2016 and the matter has been considered afresh. When the
letter dated 31.05.2016 had been quashed the obvious result would
be that action had to be taken in accordance with the earlier
directions in the 27th meeting of SEAC III (Non-MMR) held from 10th
to 13th March, 2015 and the 87th meeting of SEIAA held on 10th to
12th August, 2015. This was not done. His actions need to be
looked into and, therefore, we uphold the direction given by the
NGT directing the Chief Secretary to the State of Maharashtra to
take notice of the conduct of the concerned officers. We further
direct the Chief Secretary to file detailed report in respect of the
conduct of the then Principal Secretary, Department of
Environment to the NGT within 3 months which will thereafter pass
appropriate directions in the matter.
27
Challenge to the order dated 08.01.2018 passed in Review Application No.35 of 2016:
28. This order has been challenged both by the project proponent
by amending the appeal and by the original applicant by filing a
separate appeal.
29. Section 19(4)(f) of the National Green Tribunal Act, 2010
provides that the Tribunal shall have the same powers as are vested
in Civil Courts while trying a suit in respect of matters relating to
review of its decisions. Therefore, the power of review vested with
the NGT is akin to the power vested with the Civil Court. As such,
the principles which govern the exercise of review jurisdiction before
a Civil Court will apply with equal force to the NGT.
30. Rule 22(2) of the National Green Tribunal (Practices and
Procedure) Rules, 2011 provides that a review application shall
ordinarily be heard by the Tribunal at the same place of sitting
which has passed the order unless the Chairperson may, for
reasons to be recorded in writing, direct it to be heard by the
Tribunal sitting at any other place. Sub-rule(3) of Rule 22 provides
28
that ordinarily review application shall be disposed of by
circulation.
31. Since the powers of review which the NGT exercises are akin to
those of a Civil Court it would be pertinent to refer to relevant
portions of Order XLVII of Civil Procedure Code, 1908, which
read as follows:-
“1. Application for review of judgment.- (1) Any person
considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed,
but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small
Causes,
and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was
not within his knowledge or could not be produced by him
at the time when the decree was passed or order made, or
on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to
obtain a review of the decree passed or order made against
him, may apply for a review of judgment to the Court which
passed the decree or made the order.
(2) A party who is not appealing from a decree or order may
apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and
the appellant, or when, being respondent, he can present
to the Appellate Court the case on which he applies for the review.
xxx xxx xxx
29
5. Application for review in court consisting of two or more Judges.- Where the Judge or Judges, or any one of
the Judges, who passed the decree or made the order, a
review of which is applied for, continues or continue attached to the court at the time when the application for a
review is presented, and is not or are not precluded by
absence or other cause for a period of six months next after
the application from considering the decree or order to which the application refers, such Judge or Judges or any
of them shall hear the application, and no other Judge or
Judges of the Court shall hear the same.”
32. The project proponent has urged various grounds to challenge
the order passed in the review application. The first ground is that
whereas the original order was passed by a Bench comprising of Dr.
Justice Jawad Rahim and Dr. Ajay A. Deshpande, the review
application was heard and decided by a Bench comprising of
Justice U.D. Salvi and Dr. Nagin Nanda. It has been urged that Dr.
Justice Jawad Rahim continues to be a Judicial Member of the NGT
and, in fact, was sitting in the Western Bench at Pune on
08.01.2018 when the impugned judgment in review was
pronounced by the NGT.
33. We are clearly of the view that a review petition should
normally be heard by the same Bench which originally decided the
matter. A review petition should not be heard by any other Bench
30
unless it is impossible or totally impracticable for the earlier Bench
to hear the matter. In a review petition, like in the present case,
where the review petitioner contends that certain arguments raised
by him have not been considered then it is only the judges who
originally heard the matter who can decide whether such point was
urged or not. In the present case the review application was based
mainly on the contention that the affidavit dated 18.05.2016 was
not taken into consideration by the Bench.
34. It is well known that parties raise various contentions in their
pleadings or in their evidence. On many occasions when arguments
are heard many of the pleas are not urged. Any judicial authority
including the NGT which is presided over by a judicial member who
may be a retired judge of this Court or of a High Court is expected
to deal with all contentions raised before it. There is a presumption
that judicial authorities must have dealt with all the contentions
raised before them. If a party urges that some of the contentions
urged by it have not been taken into consideration then it has to file
a review application and it is but obvious that such review
31
application should be heard by the same Bench which had
originally heard the matter.
35. Sub-rule (3) of Rule 22 of the National Green Tribunal
(Practices and Procedure) Rules, 2011 clearly lays down that a
review application shall be disposed of by circulation. If the review
application is to be disposed of by circulation then there is no
problem in the matter being circulated before the very same Bench
which had earlier heard the matter. This can be done even at a
place which may be different from the original place of hearing. It is
only if the Bench decides to give oral hearing in the review
application and notice is issued to the opposite party that sub-
rule(2) of Rule 22 will come into operation. According to sub-rule(2)
the matter should ordinarily be heard at the same place of sitting
where it was originally decided. However, this is not a mandatory
direction because sub-rule(2) itself contemplates that the matter
shall ‘ordinarily’ be heard at the same place. In tribunals like the
NGT where members may be transferred from one Bench to another
or may be attending a Bench on circuit then problems can
sometimes arise. These issues can be easily resolved by resorting to
32
the latest technology and if necessary the arguments in such cases
can be heard by video conferencing. The normal rule that the same
Bench should hear the review application should not be disturbed
unless it is virtually impossible for the original Bench to hear the
matter or the members of the Bench themselves opt not to hear
the matter.
36. In this behalf, we must remind ourselves that the power of
review is a power to be sparingly used. As pithily put by Justice
V.R. Krishna Iyer, J., “A plea for review, unless the first judicial
view is manifestly distorted, is like asking for the moon” 2. The
power of review is not like appellate power. It is to be exercised only
when there is an error apparent on the face of the record.
Therefore, judicial discipline requires that a review application
should be heard by the same Bench. Otherwise, it will become an
intra court appeal to another Bench before the same court or
tribunal. This would totally undermine judicial discipline and
judicial consistency.
2 (1980) 2 SCC 167
33
37. We may refer to the judgment of this Court in Malthesh
Gudda Pooja vs. State of Karnataka and Ors. 3. In that case a
writ appeal was disposed of by a Division Bench comprising of Hon.
V. Gopala Gowda and L. Narayana Swamy, JJ., at the Dharwad
Circuit Bench of the Karnataka High Court. Thereafter, a review
petition was filed before a Bench comprising of Hon. K. Sreedhar
Rao and Ravi Malimath, JJ.. An objection was raised that the
review petition should be heard by the same judges who had
originally heard the matter but this objection was overruled and
the review petition was allowed and the appeal was ordered to be
listed afresh before the Division Bench. This appeal was listed
before the Dharwad Circuit Bench consisting of Hon. D.V.
Shailendra Kumar and N. Ananda, JJ.. This Bench held that the
order of review passed was a nullity since the judges who had
heard the review should not have heard the same especially when
the judges of the original Bench were available. The matter came
to this Court and this Court after referring to Order XLVII Rule 5
of CPC and Rule 5 of High Court of Karnataka Rules, 1959 and
taking note of the fact that the Chief Justice of the Karnataka High
3 (2011) 15 SCC 330
34
Court had passed an order that the review petition be listed as per
roster held as follows :-
“18. Order 47 Rule 5 of the Code and Chapter 3 Rule 5 of
the High Court Rules require, and in fact mandate that if the Judges who made the order in regard to which review is
sought continue to be the Judges of the Court, they should
hear the application for review and not any other Judges unless precluded by death, retirement or absence from the
Court for a period of six months from the date of the
application. An application for review is not an appeal or a revision to a superior court but a request to the same court
to recall or reconsider its decision on the limited grounds
prescribed for review. The reason for requiring the same
Judges to hear the application for review is simple. Judges who decided the matter would have heard it at length,
applied their mind and would know best, the facts and legal
position in the context of which the decision was rendered. They will be able to appreciate the point in issue, when the
grounds for review are raised. If the matter should go before
another Bench, the Judges constituting that Bench will be looking at the matter for the first time and will have to
familiarise themselves about the entire case to know whether
the grounds for review exist. Further, when it goes before some other Bench, there is always a chance that the
members of the new Bench may be influenced by their own
perspectives, which need not necessarily be that of the
Bench which decided the case.
19. Benjamin Cardozo’s celebrated statement in The Nature of Judicial Process, (pp. 12-13) is relevant in this context:
“There is in each of us a stream of tendency, whether you
choose to call it philosophy or not, which gives coherence to
thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do
not recognise and cannot name, have been tugging at them—
inherited instincts, traditional beliefs, acquired convictions;
… In this mental background every problem finds its setting. We may try to see things as objectively as we please.
Nonetheless, we can never see them with any eye except our
own.”
20. Necessarily therefore, when a Bench other than the Bench which rendered the judgment, is required to consider
35
an application for review, there is every likelihood of some tendency on the part of a different Bench to look at the
matter slightly differently from the manner in which the
authors of the judgment looked at it. Therefore the rule of consistency and finality of decisions, makes it necessary that
subject to circumstances which may make it impossible or
impractical for the original Bench to hear it, the review
applications should be considered by the Judge or Judges who heard and decided the matter or if one of them is not
available, at least by a Bench consisting of the other Judge.
It is only where both Judges are not available (due to the reasons mentioned above) the applications for review will
have to be placed before some other Bench as there is no
alternative. But when the Judges or at least one of them, who rendered the judgment, continues to be members or
member of the court and available to perform normal duties,
all efforts should be made to place it before them. The said requirement should not be routinely dispensed with.”
38. A perusal of the above judgment leaves no manner of doubt
that this Court has held that in terms of Order XLVII Rule 5 of CPC,
a review should normally be heard by the same Bench which
passed the original order. We may reiterate the reasons given by
this Court. These are :-
1) The judges who heard the matter originally have applied their
mind and would know best the facts and legal position;
2) They will be in the best position to appreciate the matter in
issue when a review is filed;
3) If the matter goes before another Bench that Bench will have
to virtually hear the matter afresh;
36
4) Most importantly, when the matter goes to a new Bench the
members of the new Bench may go by their own perspective and
philosophy which may be totally different to that of the Bench
which originally heard the matter.
We may again re-emphasize that judicial discipline, judicial
traditions and consistency in pronouncements require that the
Bench which heard the matter originally should hear the review
petition unless it is virtually impractical for the original Bench to
hear the matter, or where the members of the original
Bench recuse.
39. Another ground raised is that the statutory appeal was already
pending in this Court against the original order when the review
application was taken up for hearing. It is contended, on the basis
of Order XLVII Rule 1(2) of CPC, that review application should not
have been taken up for hearing because the original applicant could
have before this Court taken up all the points which he had taken
in his review application. It is also contended that this is not a case
where there is an error apparent on record and as such the power
of review could not have been exercised. As far as the facts of this
37
case are concerned we are clearly of the view that the original
applicant could have raised all issues which he raised in review
application even by filing a counter affidavit in the appeal filed by
the project proponent or by challenging the original order in this
Court as he has done now. In this context, once this Court was
seized of the matter and all issues were being urged, the NGT
should not have proceeded to hear the review application.
40. We may add that on 21.12.2016, the review application itself
was listed before the Bench of Dr. Justice Jawad Rahim and Dr.
Ajay A. Deshpande, which adjourned the matter to 25.01.2017 to
hear it regarding maintainability of the review application in view of
the statutory appeal provided under the National Green Tribunal
Act, 2010. However, the matter got listed before the other Bench
and on 25.07.2017, the said Bench considered this objection raised
by the project proponent in terms of Order XLVII Rule 1 of the CPC
and the Bench held as follows:
“Having perused the record, we find that the Appellant is
seeking quashing of the order of compensation in totality
and the Review Applicant is seeking enhancement of the compensation granted by the Tribunal. We do not see any
commonality in the grounds resorted to by the Applicant and
Appellant in the said Appeal. Exception to Sub-clause 2 of Order 47 Rule 1 of Code of Civil Procedure, therefore, does
38
not come to the help of Respondent No.9. We are, therefore, of the considered opinion that the Review Application is
maintainable. Plea of non-maintainability of the Review
Application is rejected.”
41. We are of the view that the aforesaid finding is incorrect. The
project proponent had not only challenged the original order of the
NGT on the ground that he had not violated the EC but also on the
ground that the damages awarded were highly excessive. Therefore,
the question that what should be the extent of damages was
specifically before this Court. We are therefore, clearly of the
opinion that the Bench hearing the review application erred in
holding that the review application was maintainable despite the
appeal pending before this Court.
42. We may also note that the Bench which heard the review has
rejected all other grounds of review mainly on the ground that there
is no error apparent on the face of the record but has only dealt
with the issue of enhancement of damages to be imposed on the
basis of ‘Carbon Footprint’ relying on the affidavit dated
18.05.2016. The Bench noted that this affidavit had not been taken
into consideration by the earlier Bench. How could the latter Bench
39
hearing the review application know whether any reference was
made to this affidavit at the time of original hearing or not? In fact,
the project proponent urges that this affidavit was never filed on
18.05.2016.
43. Here, it would be pertinent to mention that according to the
original applicant he was given oral permission by the Bench to file
such an affidavit on 23.02.2016. We have perused the order dated
23.02.2016 and find that it makes no mention of any such request
being made. If there is no such request then the question of issuing
an oral direction to file such an affidavit does not arise. We may
also add that after 23.02.2016, the matter was listed on numerous
occasions i.e. 16.03.2016, 05.04.2016, 18.04.2016, 22.04.2016,
02.05.2016 and 05.05.2016 before the NGT. In none of the orders
there is any reference to Carbon Footprint or to any affidavit to be
filed by the original applicant. If an oral permission had been given,
obviously the original applicant would have either filed an
application or would have made a request that he wants to file such
an affidavit.
40
44. The affidavit in question is dated 18.05.2016 and it is alleged
that it was filed on 18.05.2016. The matter was listed for hearing
on 19.05.2016 on which date also there is no reference to any such
affidavit. It would be pertinent to note that in between the project
proponent had filed an M.A. No. 389 of 2016 before the Principal
Bench stating that an interim order dated 23.12.2015 had been
passed against it and the matter was not being heard and,
therefore, it may be heard by a Bench presided over by Dr. Justice
Jawad Rahim, who apparently was holding Court in the Pune
Bench at that time and the Principal Bench allowed the same on
02.05.2016 directing that the matter be listed before the Bench
presided over by Dr. Justice Jawad Rahim. On 19.05.2016, the
original applicant sought time stating that he had filed review
application against the order dated 02.05.2016 before the Principal
Bench praying that the matter should be heard by the earlier Bench
presided over by Justice U.D. Salvi and, therefore, the matter could
not be heard by Dr. Justice Jawad Rahim on that day and was
further adjourned to 23.05.2016. There is no reference to Carbon
Footprint in the order dated 19.05.2016. On 23.05.2016, the
matter was heard by the Bench presided over by Dr. Justice Jawad
41
Rahim and the orders reserved. In this order also there is no
reference to the affidavit with regard to Carbon Footprint. If the
filing of the affidavit would have been brought to the notice of the
Bench, it would have recorded in the order that some fresh affidavit
had been filed. Subsequently, the project proponent, who is the
contesting respondent, filed an application on 20.07.2016 praying
that in the meantime he had obtained permission of the
Environment Department and the SEIAA to which we have adverted
hereinabove.
45. The original applicant sought time to file counter affidavit.
The matter was adjourned to 28.07.2016 for re-hearing deleting the
same from reserved list since there were subsequent developments.
On 28.07.2016 the matter was got adjourned to 02.08.2016 on
which date some execution application for implementation of the
interim orders was taken up and direction was issued to the PMC.
The matter was again taken up on 08.08.2016, 19.08.2016 and
24.08.2016 when the hearing was closed and judgment was
pronounced through video conferencing on 27.09.2016. In none of
these orders any mention was made for Carbon Footprint or to the
42
affidavit on the basis of which the review application was filed. On
23.05.2016 the project proponent filed reply to the affidavit dated
18.05.2016 filed by the original applicant in which they raised
objections that such affidavit was not filed on 18.05.2016 and the
copy of the same was handed over to them on 20.05.2016 and the
original applicant had no permission to file such an affidavit. All
these disputed issues as to whether such an affidavit was filed with
the permission of the Court or it was referred to in the first hearing
or in the second hearing could only be decided by the Bench which
had heard the matter on 23.05.2016 or on 24.08.2016 on which
dates the original application was reserved for orders.
46. We are of the considered view that the review application
should have been heard by a Bench headed by Dr. Justice Jawad
Rahim who was admittedly available and in fact continues to be a
member of the NGT. Therefore, we are constrained to set aside the
order passed in Review Application No.35 of 2016 dated 08.01.2018
43
Is Demolition the only answer?:
47. The next issue which arises is that what we should do with the
construction. A large number of flats are already occupied and a
large number of persons have paid money for occupying these flats.
Learned counsel appearing for those persons who have purchased
the flats urged that the flats should not be demolished otherwise
they shall be put to great monetary loss. As pointed out above now
there are 807 flats and 117 shops which are either constructed or
under construction. These flats are 1, 1.5 and 2 BHK flats and
small shops and offices. The project proponent has already taken
money from these persons and a large number of flats and shops
have already been occupied and even where the remaining flats and
shops are not occupied, persons belonging to the middle class have
invested their life’s earnings in this project. Keeping in view the
interest of these third parties who were not parties before the NGT,
we are of the view that in the peculiar facts and circumstances of
the case, demolition is not the answer. This would put innocent
people at loss. Normally, this Court is loathe to legalize illegal
constructions but in the present case we have no option but to
do so.
44
48. We hasten to clarify that the project proponent cannot be
permitted to build any more flats. What we are permitting him to
do is to only complete construction of 807 flats, 117 shops/offices
and cultural centre including the club house. We make it clear that
he shall not be allowed to build the two buildings in which he was
to construct 454 tenements, and will obviously have to return the
money with interest at the rate of 9% per annum to the individual(s)
who have invested in the same. There is no equity in favour of
these persons since the plan to raise this construction was
submitted only after 2014 when the validity of the earlier EC had
already ended. Therefore, though we uphold the order of the NGT
dated 27.09.2016 that demolition is not the answer in the peculiar
facts of the case, we also make it clear that the project proponent
cannot be permitted to build nothing more than 807 flats, 117
shops/offices, cultural centre and club house.
Whether the Original Applicant is entitled to Special Damages:
49. On behalf of the original applicant various issues were raised
before us which had not been raised before the NGT and find no
45
mention either in the original order or even in the order under
review. We are not considering those issues. It was urged that the
project proponent has reduced the area of Cultural Centre. This
averment is not correct as pointed by senior counsel appearing for
the Union of India. The development plan is not only for the area
under the project but covers a much larger area where more than
one builder and projects may be involved. It is not the
responsibility of only one builder to provide the entire community
services and these have to be provided pro rata by all developers of
projects in the area. It was also alleged that the builder had built 3
basements which are illegal. On the other hand it was contended
by the learned senior counsel for the project proponent that one of
the basements has already been blocked and the other two
basements shall also not be put in use and would be completely
blocked off. We make it clear that PMC and SEIAA will ensure that
the project proponent blocks the basements in such a manner that
they can never be put to any use. Another argument raised by the
original applicant was that the project proponent had stated that
though he would not use any ground water, however it has utilized
the ground water and violated the condition of the EC. Reliance is
46
placed on certain photographs showing water being pumped. On
the other hand on behalf of the project proponent it has been urged
that this water was being pumped out from the excavated area
when the building was built and the water level had risen. We
cannot decide this disputed question of fact in these proceedings.
50. We may also point out that in this case the original applicant
has tried to project the case as if he is filing the case in the public
interest and has prayed for certain general directions. He has also
claimed special damages for himself. The main grievance of the
original applicant is with regard to the violation of the EC and
according to him these violations started in the year 2009. The
original applicant had applied for a flat in the project in question
and had issued notice to the project proponent on 21.10.2011
about deficiency in service. This notice was replied to on
17.11.2011. Thereafter, the original applicant filed Consumer
Complaint No. 95 of 2012 on 22.02.2012. This complaint was
decided on 20.11.2014. Thereafter, the order of the District
Consumer Disputes Redressal Forum was challenged before the
State Consumer Redressal Commission both by the project
47
proponent and original applicant in February, 2015. It appears
that thereafter there were complaints and counter complaints filed
by the parties against each other and the project proponent filed a
civil suit for defamation against the original applicant on
02.12.2015 and it was only thereafter on 07.12.2015 an application
was filed in the NGT by the original applicant. We are highlighting
these facts only to emphasize the fact that this litigation is
obviously not a Public Interest Litigation. Therefore, the claim of
the original applicant to award him special damages cannot be
accepted.
Quantification of damages:
51. We need to decide and re-assess the issue of damages since
the original applicant has also challenged the original order of the
NGT. While assessing the damages we may note certain facts:-
1) The EC was granted on 04.04.2008 but construction
commenced after issuance of consent to establish dated 20.06.2009
and the EC would be valid for a period of 5 years from the date of
such consent, i.e. upto 19.06.2014;
48
2) The EC dated 04.04.2008 was granted for construction of built
up area 57,658.42 sq.mtrs., whereas admittedly, as of now the
constructed built up area is 1,00,002.25 sq. mtrs.. Therefore, there
is clear-cut violation of the terms of the EC;
3) Any construction raised after 19.06.2014 is without any EC
especially since we have held that EC granted on 20.11.2017 is
invalid.
Carbon Footprint:
52. The main case of the original applicant is that the damages
should be assessed on a scientific basis by calculating the damage
caused to the environment by the project proponent on the basis of
‘Carbon Footprint’. In the absence of detailed submissions, we find
ourselves totally unequipped to go into this aspect of the matter.
53. In the original application filed by the original applicant before
the NGT, there is no reference to Carbon Footprint. Even when
evidence was initially led, no reference was made to the same. The
concept of Carbon Footprint was introduced by the original
49
applicant only in his affidavit dated 18.05.2016. In fact, according
to the project proponent this affidavit was not even filed on
18.05.2016. It appears to us that there is no order of the NGT
specifically permitting the original applicant to file such an affidavit.
The submission of original applicant is that he was orally permitted
to file the same. These disputed questions would have been only
decided by the Original Bench and, therefore, we have already set
aside the order passed in the review application dated 08.01.2018.
54. Courts cannot introduce a new concept of assessing and
levying damages unless expert evidence in this behalf is led or there
are some well established principles. We find that no such
principles have been accepted or established in the present case.
When there are no pleadings in this regard we fail to understand
how the concept of Carbon Footprint can be introduced after
evidence has been closed, at the stage of arguments. We cannot
assess the impact in actual terms and, therefore, we can only
impose damages or costs on principles which have been well settled
by law.
50
55. We may also note that the method to which the original
applicant referred to is not part of any law, rule or executive
instructions. This method is no doubt used to compensate and
impose damages on nations but we cannot apply this method while
imposing damages on a person who violates the EC. We may also
add that the calculation made by the original applicant in his
affidavit dated 18.05.2016 filed before the NGT are based on
assumptions some of which we have not found to be correct
namely – (1) use of ground water; (2) reduction of Cultural Centre
space; (3) construction of basements etc..
56. We may make it clear that we are not laying down the law that
damages cannot be assessed on the basis of Carbon Footprint. In a
case where expert evidence in this behalf is led or on the basis of
empirical data it is established that by applying the principles of
Carbon Footprint damages can be assessed, the Court may, in the
facts and circumstances of the case, rely upon such data but, in the
present case, there is no such reliable material.
51
57. Having held so we are definitely of the view that the project
proponent who has violated law with impunity cannot be allowed to
go scot-free. This Court has in a number of cases awarded 5% of
the project cost as damages. This is the general law. However, in
the present case we feel that damages should be higher keeping in
view the totally intransigent and unapologetic behaviour of the
project proponent. He has maneuvered and manipulated officials
and authorities. Instead of 12 buildings, he has constructed 18;
from 552 flats the number of flats has gone upto 807 and now two
more buildings having 454 flats are proposed. The project
proponent contends that he has made smaller flats and, therefore,
the number of flats has increased. He could not have done this
without getting fresh EC. With the increase in the number of flats
the number of persons, residing therein is bound to increase. This
will impact the amount of water requirement, the amount of
parking space, the amount of open area etc.. Therefore, in the
present case, we are clearly of the view that the project proponent
should be and is directed to pay damages of Rs.100 crores or 10%
of the project cost whichever is more. We also make it clear that
while calculating the project cost the entire cost of the land based
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on the circle rate of the area in the year 2014 shall be added. The
cost of construction shall be calculated on the basis of the schedule
of rates approved by the Public Works Department (PWD) of the
State of Maharashtra for the year 2014. In case the PWD of
Maharashtra has not approved any such rates then the Central
Public Works Department rates for similar construction shall be
applicable. We have fixed the base year as 2014 since the original
EC expired in 2014 and most of the illegal construction took place
after 2014. In addition thereto, if the project proponent has taken
advantage of Transfer of Development Rights (for short ‘TDR’) with
reference to this project or is entitled to any TDR, the benefit of the
same shall be forfeited and if he has already taken the benefit then
the same shall either be recovered from him or be adjusted against
its future projects. The project proponent shall also pay a sum of
Rs. 5 crores as damages, in addition to the above for contravening
mandatory provisions of environmental laws.
58. Normally, this Court is not inclined to grant ex post facto EC.
However, in the peculiar facts of this case we direct that once the
project proponent deposits the amount of damages as directed by
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us then the project proponent may approach the appropriate
authority for grant of EC. The authority may impose such
conditions for grant of EC as it deems necessary.
Findings and Directions:
59. We summarise our findings and directions as follows:
(i) That built up area under the notification of
14.09.2006 means all constructed area which is not open
to the sky;
(ii) Built up area under the notification of 04.04.2011
means all covered area including basement and service
areas;
(iii) The communication dated 07.07.2017 is totally
illegal and accordingly quashed;
(iv) The original application cannot be treated as a
public interest litigation;
(v) We are not taking note of the allegations levelled
against the individuals who have not been arrayed as
parties;
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(vi) That the order dated 27.09.2016 of the NGT is
upheld except in so far as Direction No. 1 is concerned;
(vii) The order in review application passed by the NGT
on 08.01.2018 is held to be totally illegal and is
accordingly set aside;
(viii) We uphold the original order dated 27.09.2016
holding that the construction raised by the project
proponent was in violation of the environmental clearance
granted to it on 04.04.2008. We uphold the fine imposed
upon the PMC and the direction given to the PMC to take
appropriate action against the erring officials. We also
uphold the direction given to the Chief Secretary to the
State of Maharashtra and in addition, direct that the Chief
Secretary to the State of Maharashtra shall look into the
conduct of the official holding the post of Principal
Secretary (Environment) to the Government of
Maharashtra on 27.09.2016 and will submit his report to
the NGT within three months from today;
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(ix) We impose damages of Rs.100 crores or 10% of the
project cost, whichever is higher on the project proponent
and in addition thereto, project proponent will pay Rs.5
crores as levied by the NGT in its order dated 27.09.2016;
(x) Project proponent shall not be permitted to raise
construction of two buildings having 454 tenements;
(xi) We direct that the project proponent shall only be
permitted to complete construction of a total 807 flats, 117
shops/offices and cultural centre including club house;
(xii) The project proponent will only be permitted to seek
environmental clearance for completion of the project
subject to payment of costs in the aforesaid terms and it
may be granted ex post facto environmental clearance in
the peculiar facts of the case, on such terms and
conditions as the environmental authority deems fit and
proper;
(xiii) The project proponent is granted six months’ time to
deposit the amount of damages imposed in terms of
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direction no. (ix) supra in the Registry of this Court. In
case the project proponent does not deposit the amount
within six months then all the assets of the project
proponent i.e. M/s. Goel Ganga Developers India Pvt. Ltd.
as well as its Directors shall be attached and the amount
of damages shall be recovered by sale of those assets. It is
further directed that in case this amount is not deposited
within the period of six months then the
licence/registration/permission granted to M/s. Goel
Ganga Developers India Pvt. Ltd. to develop any “real
estate project” within the meaning of the Real Estate
(Regulation and Development) Act, 2016 shall be cancelled
and the project proponent i.e. M/s. Goel Ganga Developers
India Pvt. Ltd. and its Directors shall not be granted
permission to develop any “real estate project” under the
Real Estate (Regulation and Development) Act, 2016
without permission of this Court.
(xiv) The matter be listed on 22.10.2018 for issuing
appropriate directions as to how the amount of damages
are to be utilised;
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60. All the appeals are disposed of in the aforesaid terms. Pending
application(s) if any, shall also stand disposed of.
………………………………..J.
(Madan B. Lokur)
…………………………………J.
(Deepak Gupta)
New Delhi
August 10, 2018