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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

23    

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,

24    

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;

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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.    

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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

52    

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