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REPORTABLE

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION

I.A. NO.64665 OF 2019 IN

CIVIL APPEAL NO. 10854 OF 2016

M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD.        … Applicant (s)

Versus

UNION OF INDIA THROUGH SECRETARY MINISTRY OF ENVIRONMENT  AND FORESTS & ORS.                                            …Respondent(s)

O R D E R  

The only issue  involved  in  this  application  is  whether  non­

consideration of a judgment delivered by a three­Judge Bench in

Re: Construction of Park at Noida Near Okhla Bird Sanctuary

& Ors.1,  hereinafter referred to as  ‘NOIDA Park case’, has led to

1 (2011) 1 SCC 744

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wrong conclusions by this Court with regard to the interpretation of

built up area in terms of Item No. 8 of the Schedule of the

Environment Impact Assessment (EIA) Notification dated

14.09.2006.   The relevant portion of the notification reads as

follows:

(1) (2) (3) (4) (5) 8 Building/Construction projects/Area

Development projects and Townships 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.

While interpreting this clause, one of us (Deepak Gupta, J.)

held as follows:

“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

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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 non­FSI area.  

14. Indeed, the concept of FSI or non­FSI 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 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 non­FSI 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 non­FSI 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.”  

The contention raised on behalf of the applicant is that since

the three­Judge  Bench  had in Para 84 of the judgment in the

NOIDA Park case  observed that the EIA Notification dated

14.09.2006 calls for a close second look by the authorities

concerned especially in respect of the projects/activities falling

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within the  ambit of Items  8(a) and  8(b) of the  Schedule to the

Notification which need to be described with greater precision and

clarity and the definition of built up area with facilities open to the

sky needs to be freed from its present ambiguity and vagueness, the

two­Judge Bench which delivered the judgment was bound by this

judgment of three­Judge Bench and could not have held that the

Notification  dated  14.09.2006  clearly shows that  all constructed

area which is covered and not open to the sky, has to be treated as

built up area.   

Though the observations in Para 84, at first blush, support the

contention of the applicant, one has to appreciate the factual

background in which these observations were made.  In the NOIDA

Park case, this Court was asked to intervene and halt a project in

which a huge park was being constructed.  As far as Item 8(a) of the

Schedule to the EIA Notification, 2006 is concerned, the

contentions in this regard start from Para 38.  The MoEF took the

stand that no environmental clearance was required because the

project area was 33.43 hectares, which was less than 50 hectares

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and the built  up area was 9542 sq.  mtrs.,  which was  less  than

20,000 sq. mtrs.   

It was contended on behalf of the petitioners and the amicus

curiae that the project would fall under Section 8(a) because though

the covered construction of the project was only 6999.50 sq. mtrs.,

the project by its very nature provided facilities open to the sky and

the whole  of this  open area,  which was activity  area,  should  be

treated as the built up area.   The park consisted of certain

constructed structures like pathways, walkways, statues, fountains,

etc. which were open to the sky and treated as activity area.   The

contention of the amicus curiae and the petitioners who were

objecting to the project was that the construction which was open

to the sky and was to be treated as activity area should also be

considered as part of the built up area.

The main dispute in the  NOIDA Park case was whether the

project was a building and construction project or a township and

area development project.  This Court held that this was a township

and area development project.   While considering this dispute the

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Court felt that there was some ambiguity.  This issue did not arise

in the case in hand.  The second point urged before the Court was

that the facilities open to the sky i.e. the activity area should also be

included in the built up area and it was this confusion which the

court wanted the Central Government to settle.  No party had raised

any contention  in the  NOIDA Park case  about the covered area

being  built  up area.  All the  parties  were  ad  idem  that  covered

construction was built up area and the Court also held so.   

This  Court in  this judgment has  only  held  that  all  covered

construction shall be  deemed to  be  built  up  area  and that the

municipal laws regarding  Floor  Space Index (FSI) or  Floor  Area

Ratio (FAR)  have  no relevance.  This issue  did  not  arise in the

NOIDA     Park case.  

Therefore,  in our opinion, the earlier  judgment will  have no

impact on the present case.   

Reference was also made to Notification dated 04.04.2011 and

the Clarification dated 07.07.2017.  These have already been dealt

with in the judgment dated 10.08.2018 and those were not points of

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issue in the NOIDA Park case.  Therefore, we find no merit in the

application and the same is dismissed accordingly.   

…………………………………J. (Deepak Gupta)

………………………………..J. (Aniruddha Bose)

New Delhi September 11, 2019