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T.N. Godavarman Thirumulpad Vs. Union of India and Ors

Posted on 17 June 2009 by jyoti

Title

T.N. Godavarman Thirumulpad Vs. Union of India and Ors



Coram

ARIJIT PASAYAT, S.H. KAPADIA



Act

Environment (Protection) Act



Subject

Environmental laws:

Environment (Protection) Act, 1986-Proposal for development of International Hotel Complex on 315 hectares of land in Vasant Kunj, identified for urban use in Master Plan for Delhi 2001-Direction to obtain environmental clearance-Supreme Court holding 92 hectares of land out of 315 hectares as constraint area-Violation of environmental norms by DDA and allottees, construction works carried out without obtaining environmental clearance-Report of Expert Committee-Recommendation that Ministry of Environment and Forests and Supreme Court to impose penalty on violators-Acceptability of-Held: 92 hectares of land declared as constraint area-MoEF to take decision on the same basis-Constructions had to be made after obtaining requisite clearance-Impression given by DDA to the parties participating in auction that all requisite clearances had been obtained, though it does not appear to be so-Thus, MoEF to take decision with regard to remedial measures including imposition of amounts as costs within two months-Public interest litigation.

In the Master Plan for Delhi 2001, 315 hectares of land situated in the Vasant Kunj area was identified for urban use. Delhi Development Authority proposed the development of International Hotel Complex. By order dated 13.9.1996 this Court directed that the proposed Complex of DDA to obtain environment clearance from the Authorities under the Environment (Protection) Act, 1986 before carrying out any construction or development in the area. Thereafter, by order dated 19.8.1997, this Court held that 92 hectares of land out of 315 hectares of land was constraint area and only for balance 223 hectares of land constructions have to abide by conditions of clearence. It is alleged that there was violation of environmental norms by respondents. Project proponents commenced construction works without obtaining environment clearance in contravention to the Notification in July 2004. Pursuant to the directions of this Court, the Expert Committee gave its report. It recommended that the Ministry of Environment & Forests and Supreme Court may consider imposing a penalty on the project proponents. Hence, the present IAs.

Appellant contended that this Court never held that 92 hectares of land are not a part of the ridge; that the order dated 19.8.1997 expressed no opinion whether the land was a part of the ridge; that the Environmental Pollution (Prevention and Control) Authority gave a report that the environmental factors were not in favour of urban development use of land and the entire land should be developed as green; and that the Expert Committee's report is per se unacceptable as it focused more on regularizing the unauthorized areas rather than on the consequences flowing from the non-observance of the procedure before undertaking any construction.

Respondents contended that their lands were allotted by DDA; that as per Notification No.SO/60(E) dated 27.1.1994 for the first time a provision for obtaining environmental clearance by a Central Government (MoEF) before undertaking any new project listed in Schedule-I to the Notification was introduced; that the Notification did not relate to new construction projects and as such did not apply to them; and that the amendment by Notification dated 7.7.2004 postulates post facto clearance contemplated for new construction projects undertaken.

DDA and the allottees inter alia contended that the order dated 19.8.1997 clearly stated that 92 hectares of land was constraint area and was not an integral part of Delhi Ridge; that the Notification has never been challenged; that out of the said 92 hectares of land, only 19 hectares of said land are sought to be utilized for the purpose of construction; and that it proceeded on a bona fide impression that all requisite clearances had been obtained by it and there was no question of acting in mala fide manner or irregular manner.



Citation

, 2006(7 )Suppl.SCR261 , 2 (13 )SCC689 , 2006(10 )SCALE246 ,



Head Notes

Disposing of the IAs, the Court

HELD: 1.1. The order dated 19.8.1997 makes the position clear that 92 hectares of land were kept out of consideration and in fact it was clearly declared to be a constraint area. The expression 'constraint area' has its own connotation. A Notification in respect of the land in question has been issued. The said Notification has never been challenged. The EPCA's report dated 6.10.1999 nowhere indicates that the land in question was a part of the ridge. Both the EPCA and the Expert Committee's report under consideration refer to the land as "similar to ridge area". Significantly, the EPCA in its report has taken note of the fact that there is no statutory definition of "ridge". That being so, it would be inappropriate to reopen the whole issue as to whether the land in question was a constraint area or ridge land. A bare reading of the order dated 19.8.1997 makes the position clear that this Court had treated the land as constraint area. [270-F-H; 271-A-B]

1.2. In some cases the Expert Committee after public hearing has made the recommendations with certain stipulations. It has been clearly stated that the project can be recommended for environmental clearance. The confusion arose because DDA all through gave an impression to the parties participating in auction that all requisite clearances had been obtained. Had such parties inkling of an idea that such clearances were not obtained by DDA, they would not have invested such huge sums of money. The stand that wherever constructions have been made unauthorisedly demolition is the only option cannot apply to the instant cases, more particularly, when they unlike, where some private individuals or private limited companies or firms being allotted to have made contraventions, are corporate bodies and institutions and the question of their having indulged in any malpractices in getting the approval or sanction does not arise. In most of these cases the constructions are already complete and have become functional. DDA had also made some constructions at the site in question. [271-F-H; 272-A-C]

1.3. The MoEF is to take a decision by taking the land as constraint area. It is needless to say that even if the land is held to be constraint area the constructions thereon have to be made after having the requisite clearance. The MoEF would take note of the stands projected by the respondents. The bona fides of the respondents are established but at the same time it needs no emphasis that DDA should have been more transparent in ensuring that it was not putting a site for auction where there was scope for litigation. It had definitely created an impression that all necessary clearances had been obtained, though it does not appear to be so. What remains to be decided as to what remedial measures including imposition of such amounts as costs can be taken. The MoEF is to take decision within two months. [272-D-G]

Harish N. Salve (A.C.) (N.P.), Prashant Bhushan, Vishal Gupta, Rohit Kumar Singh, Parul Kaur, Sanjay Parikh Anitha Shenoy and A.N. Singh for the Petitioner.

Vikas Singh, A.S.G., A. Sharan, A.S.G. U.U. Lalit (A.C.) (N.P.) Arun Jaitley, Dhushyant Dave, Mukul Rohtagi, Altaf Ahmed, Sidhartha Chowdhary, (A.C.), Ravi P. Mehrotra, Anil Katiyar, Vishnu B. Saharya (for M/s. Saharya Co.), Vijay Panjwani, Gopal Singh, Ritu Raj Biswas, A. Subhashini, S. Wasim A. Qadri, Kamlendra Mishra, R.K. Dubey, Ajay Siwach, Sandeep Sharma, Pradeep Dahiya, T.V. George, M.P. Meharia, Kuldip Singh, Arun K. Sinha, Sanjay Katyal, R.K. Pandey, A.T.M. Sampath, A.K. Sanghi, A.N. Bardiyar, Aruneshwar Gupta, A. Mariarputham, Ashok Mathur, Anish Ahmed Khan, Ajit Pudussery, Baby Krishnan, Binu Tamta, Sushma Suri, Bharat Sangal, Nina Gupta, Shweta Chadha, Akanksha, Meha Kiran, Bina Gupta, C.L. Shau, C.K. Sucharita, Dinesh Kumar Garg, D.N. Goburdhan, Pinky Anand, Geeta Luthra, E.C. Agrawala, E.M.S. Anam, Ejaz Maqbool, G. Prakash, H.S. Parihar, Ramesh Singh, A.T. Patra, Nipun Malhotra (for M/s. O.P. Khaitan & Co.), K.N. Madhusoodhanan, R. Sathish, K.H. Nobin Singh, S. Biswajit Meitei, B.V. Niren, P.H. Parekh, Sandeep Parekh, Ranjeeta Rohtagi (for M/s. P.H. Parekh & Co.) Nandini Gore, Jayant Mohan, Manik Karanjawala, S.S. Shinde, V.N. Raghupathy, D.P. Singh, Sanjay Jain, Pravin Bahadur, Meghalee Barthakur, Ravinder Narain, Rajan Narain (for M/s. Rajan Narain & Co.) P.K. Aggarwal, Vinay K. Shailendra, A.D.N. Rao, P.K. Aggarwal, Vinay K. Shailendra, R.S. Suri Chand Kiran, Gyan Mitra, P.K. Jayakrishnan, Dr. K.S. Chauhan, Nidhi Bisaria, Madhu Sikri, Musharraf Chowdhry, B.S. Banthia, Shekharprit Jha, K.K. Malviya, Bipin Kumar Jha, C.D. Singh, Minakshi Sharma, Bhavan Shankar V. Gadnis and B. Simita Rao for the Respondents.



Judgment Made On

17/10/2006

CASE NO.:
Writ Petition (civil) 202 of 1995

JUDGMENT:
J U D G M E N T
I.A.NO. 1156 IN WP (C) NO. 202 OF 1995
[With I.A.Nos.1192, 756, 1463, 1501 and 1532
in
WP (C) 202 OF 1995]

ARIJIT PASAYAT, J

The present IAs relate to acceptability of the report given
by the Expert Committee relating to alleged violation of the
environmental norms by the respondents.

Background facts in a nutshell are as follows:

The Delhi Development Authority (in short the 'DDA')
proposed the development of International Hotel Complex on
315 hectares of land situated in the Vasant Kunj area after the
same area was identified in the Master Plan for Delhi 2001 for
urban use. According to the applicants, the said area under
the earlier Master Plan 1962 was identified as green area but
there was a change of user to urban area under the latter
Master Plan i.e. Master Plan 2001. DDA planned to develop
the said area for construction of Hotels, Convention Centres
etc. Initially, by an order dated 13.9.1996 this Court directed
inter alia as follows:

"The proposal of the Delhi Development
Authority (DDA) called International Hotels
Complex (Complex on 315 hectares of prime
land situated in South Delhi is before us for
consideration. In the affidavit filed by Mr. Arun
Khaisalkar, Commissioner (Planning), (DDA),
the details of the development in respect of the
said 315 hectares has been given. It is not
disputed that the Master Plan of Delhi 2001
was amended on June 17, 1995 whereunder
out of the total area of the complex the area
assigned for residential purposes was reduced
from 100 hectares to 49 hectares and for
commercial purposes increased from 8
hectares to 65 hectares. Apart from that 39
hectares have been earmarked for public and
semi-public, 15 hectares for transportation
and remaining 147 hectares for recreational
purposes.

It is stated in the affidavit that there is an
acute shortage of tourist accommodation in
Delhi and as such it is necessary to provide
sites for 4/5 Star Hotels, Institutions,
Hospital, Shopping Mall etc. It is further stated
that the Complex area is not a part of the
Ridge. It is about 2 Km. away from Southern &
South Central Ridge.

We have heard Mr. V.B. Saharya, learned
counsel for DDA and also Mr. P.C. Jain,
Consultant, Planner, DDA. We have heard Mr.
Mehta, Dr. Rajiv Dhawan and other learned
counsel assisting us in this matter.

Mr. Sunder Subramanian, Member of
Citizens for the South Western Lake
Wilderness & Others and of PILSARC, has filed
an affidavit pursuant to this Court's order
dated September 4, 1996. It is stated in the
affidavit that the area is topographically a part
of the South Ridge which is to South Delhi
what the Central Ridge is to Central Delhi. It is
further stated in the affidavit that the area is
lake studded covering over 1000 acre. The
affidavit indicates that the area was kept green
under the 1962 Master Plan in the Draft Zonal
Plan of 1993 (ZDP Zone 121993-Z-P/F/93-52)
of the DDA 2001 Master Plan. It is further
stated that this area is the natural extension of
Sanjay Van a notified reserve forest and a part
of Ridge. Along with the affidavit, various
photographs have been attached to depict the
ecology of the area.

This Court in Vellore Citizens Welfare
Forum v. Union of India and Ors. (JT 1996 (7)
SC 375) has observed that the development
and environment protection must go together.
There should be balance between development
and environment protection. It is, therefore,
necessary that before the proposed Complex
of the DDA is brought into execution, it should
have environment clearance from the
authorities concerned. The whole of the area
has to be surveyed from the point of view of
environment protection. In other words, the
environment impact assessment of the area
has to be done by the experts. We are of the
view that the authority contemplated by
Section 3(3) of the Environment (Protection)
Act, 1986 ('the Act') can be the only
appropriate Authority to look into the
environment protection side of the present
project or any other project which the DDA or
any other Authority may initiate in future.
Needless to say that the City of Delhi is already
highly congested and has been rated by the
World Heath Organization as the 4th most
polluted city so far as the air pollution is
concerned. It is, therefore, necessary that the
development in the city should have
environmental clearance.

We, therefore, direct the Central
Government to constitute an Authority under
Section 3(3) of the Act and confer on the said
authority all the powers necessary to deal with
the environmental protection issue arising out
of the project in hand or any other project
which may in future come under its
consideration. The authority shall he headed
by a retired Judge of a High Court and it may
have other members  preferably experts in the
field of pollution control and environment
protection to be appointed by the Central
Government. The Central Government shall
confer on the said Authority the powers to
issue directions under Section 5 of the Act and
for taking measures with respect to the
matters referred to in clauses (i), (iii), (iv), (vi),
(viii), (ix), (x) and (xii) of sub-section (2) of
Section 3 of the Act. The Central Government
shall constitute the Authority before October
10, 1996. This Authority shall have the
jurisdiction over the National Capital Region as
defined under the National Capital Region
Planning Act, 1985.

Needless to say that the authority so
constituted shall keep in view the
'Precautionary Principle" and other principles
laid down by this Court in Vellore Citizens
Welfare Forum's case (supra). The Authority
shall lay down its own procedure.

We further direct that till the time the
Complex is cleared by the Authority so
constituted by the Central Government, there
shall be no construction and no development
of any kind in the area by the DDA or by any
other authority. The DDA can, however, clean
the area and plant trees if they so wish.

The proceedings initiated on Kuldip
Nayar's letter are disposed of."

Subsequently, on an application filed, this Court by an
order dated 19.8.1997 held that 92 hectares of land out of the
aforesaid 315 hectares of land was a constraint area and only
in respect of the balance 223 hectares of land the
constructions have to abide by the conditions of clearance.
Subsequently, a Writ Petition was filed (W.P.No. 564/2003)
which was dismissed by an order dated 8.3.2004. Pursuant to
the directions of this Court the Committee constituted has
given its report. The recommendations made by the
Committee are as follows:

1. The project site has topographical features
similar to that of the ridge. Various studies,
including EIA documents submitted now for
obtaining environmental clearance, establish the
environmental value of this area, particularly as a
zone of groundwater recharge. Therefore, DDA
should have exercised adequate environmental
precaution based on a sustainable environmental
management approach. There is no evidence that
the environmental impact of the construction of
malls was assessed beforehand and that the
development of this area for commercial activities is
in accordance with the Master Plan.

2. DDA's advertisement (Hindu Dec 12, 2003 )
states: "purchaser would be required to obtain
necessary clearance for the project from the EPCA
and/or DPCC before submitting the plans for
sanction to the Building Dept of DDA". There is no
confirmation that this requirement was fulfilled by
the allottees.

3. DDA has mentioned that FAR for the projects
under reference is pegged at 1.0. However, it is seen
that for all the buildings proposed in Plot no. 1 to 5,
DDA has permitted a higher FAR which works out
to 1.25 to 1.29.

4. In hindsight it is evident that the location of
large commercial complexes in this area was
environmentally unsound. Now many proponents
have constructed very substantially and really
speaking awarding clearances even with conditions
is largely a compromise with de-facto situation. The
Expert Committee is of the opinion that at this stage
only damage control is possible by strict
implementation of effective EMP and resource
conservation measures in the project construction
and operational stages.


5. As stated earlier in the interim report, the
Committee suggests that the Ministry of
Environment & Forests and the Supreme Court may
consider imposing a penalty on the project
proponents who commenced construction works
without obtaining environmental clearance in
contravention to the Notification in July 2004.

6. Existing vacant plots (no. 6 and 7) of the
shopping mall complex should not be auctioned by
DDA for more malls or commercial activities. They
may be kept open as a fringe of the bio-diversity
park or earmarked for development of any common
facilities that may be needed in the area.

7. Treated sewage from Vasant Kunj Sewage
Treatment Plant must be utilized as much as
possible for such purposes as water cooled chillers,
toilet flushing, gardening and horticulture and floor
washing. This will reduce the requirement of fresh
water.

8. The aforesaid purposes will need tertiary
treatment of sewage. Since the allottees of offices
and malls have proposed to carry out entire
treatment up to tertiary level on their own, it should
be possible for them to treat the treated sewage
received from Vasant Kunj sewage treatment plant
to the required level.

9. While rainwater harvesting should be done,
the withdrawal of ground water should not he
permitted in the shopping mall area.

10. For construction, use of ready-mix concrete
(RMC) should be made compulsory so as to reduce
movement and storage of materials and generation
of dust.

11. Utilization of solar energy must he maximized
in all these proposals both for heating water and
generating power to light up corridors and parking.

12. A Monitoring Committee may be constituted
for overseeing the project so as to ensure effective
implementation and compliance to environmental
safeguards".

In support of the applications, learned counsel has
submitted that it has never been held by this Court that 92
hectares of land are not a part of the ridge. On the contrary,
the first order itself made the position clear. The clarification
by order dated 19.8.1997 had really expressed no opinion on
the question whether the land was a part of the ridge. A
report was given by the Environmental Pollution (Prevention
and Control) Authority (in short 'EPCA') chaired by Shri Bhure
Lal wherein it has been clearly stated that environmental
factors were not in favour of urban development use of land
and the entire parcel of land should be developed as green.
Therefore, it is submitted that there has been clear violation of
the norms fixed on 7.7.2004.

Per contra, learned counsel for DDA and the allottees
inter alia submitted that the applicants are trying to re-open
an issue which had become final about a decade back. The
order dated 19.8.1997 made the position absolutely clear that
92 hectares of land was constraint area and was not an
integral part of Delhi Ridge. Out of the said 92 hectares of
land, only 19 hectares of said land are sought to be utilized for
the purpose of construction. Learned counsel for the DDA
additionally submitted that long back the 92 hectares of land
have been declared constraint area and there has never been
any challenge to the Notification. In a nutshell, DDA and
allottees have prayed for dismissal of the applications.

The first order of this Court which was relied i.e.
13.9.1996 has been quoted above. It would be appropriate to
quote the subsequent orders. They are as follows:

Order 19.8.1997

"Having heard learned counsel for the parties
and the learned Additional Solicitor General,
we are satisfied that this Court's Order dated
13.9.1996 on I.A.No.18 in WP ( C ) No.4677/85
is in effect to govern the constructions made
under the proposal of the Delhi Development
Authority (DDA) called 'The International
Hotels Complex' in South Delhi and mention of
the area of 315 hectares in relation to that
complex is inadvertent since the DDA's
proposal itself excluded the constraint area
described at page 33 of the paper book (page
13 of the booklet) which is a total of 92
hectares including the shopping Mall and
Hotel site of 25 hectares within which is
located the site of the petitioner's proposed
Hotel under construction in an area of 4
hectares. In other words, the proposal of the
DDA called "The International Hotels Complex"
in South Delhi is to be understood as that for
the area of 315-92 = 223 hectares as shown in
the DDA's proposal itself. This clarification of
this Court's order dated 13.9.1996 has become
necessary on account of the fact that the
concerned authorities are construing the order
dated 13.9.1996 to operate also in respect of
the aforesaid constraint area of 92 hectares in
addition to some other areas which are even
outside the area of 315 hectares. However, it is
made clear that the petitioner and all other
similarly situated outside the 223 hectares of
the area of the proposal of the DDA are
required to abide by all the conditions of
clearance from the environmental authorities
including taking the measure necessary for
checking pollution and other requirements of
law.

In view of the manner in which this
Court's aforesaid order dated 13.9.1996 is to
be construed, the order of the Authority of 31st
January, 1997 and 7th March, 1997 do not
survive.

The Special Leave Petition is disposed of
in these terms".

Order dated 8.3.2004
"We are satisfied that the proposed Mall is on
the area measuring 92 hectares of land, which
has already been excluded by the order of this
Court on 19th August, 1997. In that view of the
matter, we do not find any merit in this
petition. It is accordingly dismissed. However,
this order will not preclude the petitioner from
availing any remedy, which may be available to
him under law."


The order dated 19.8.1997 makes the position clear that
92 hectares of land were kept out of consideration and in fact
it was clearly declared to be a constraint area. The expression
'constraint area' has its own connotation. As has been pointed
out by learned counsel for the DDA, a Notification in respect of
the land in question has been issued. The said Notification has
never been challenged. The EPCA's report dated 6.10.1999
nowhere indicates that the land in question was a part of the
ridge. Both the EPCA and the Expert Committee's report under
consideration refer to the land as "similar to ridge area".
Significantly, the EPCA in its report has taken note of the fact
that there is no statutory definition of "ridge". That being so, at
this juncture, it would be inappropriate to reopen the whole
issue as to whether the land in question was a constraint area
or ridge land. A bare reading of the order dated 19.8.1997
makes the position clear that this Court had treated the land
as constraint area. It has been emphasized by learned
counsel for the petitioners that the Expert Committee's report
is per se unacceptable because it has focused more on the
aspects of regularizing the unauthorized areas rather than on
the consequences flowing from the non observance of the
procedure before undertaking any construction. It is stated
that this Court has taken serious view of unauthorized
construction and some times on the basis of permissions,
wrongly granted. Various decisions in this regard are relied on.

In response, learned counsel for the respondents have
stated that their lands were allotted by the DDA. As per
Notification No.SO/60(E) dated 27.1.1994 for the first time a
provision for obtaining environmental clearance by a Central
Government (MoEF) before undertaking any new project listed
in ScheduleI to the Notification was introduced. The
Notification did not relate to new construction projects and as
such did not apply to them is the stand of the respondents.
The auction was conducted by DDA. Having undertaken the
project, huge investments have been made and with sanction
of building plans they applied for. In some cases applications
were filed before DPCC for obtaining clearance under the Air
and Water Acts. According to them prior to 7.7.2004 no other
environmental clearance was required except clearance as
afore-stated. The auction Notice of DDA dated 12.12.2003
mentions about clearance from EPCA. According to the
respondents, this referred to the draft Notification dated
7.10.2003 which proposed to include new construction
projects within the ambit of the parent Notification dated
27.1.1994. According to them, the amendment by Notification
dated 7.7.2004 postulates post facto clearance contemplated
for new construction projects undertaken.

In some cases the Expert Committee after public hearing
has made the recommendations with certain stipulations. It
has been clearly stated that the project can be recommended
for environmental clearance. The confusion arose because
DDA all through gave an impression to the parties
participating in auction that all requisite clearances had been
obtained. Had such parties inkling of an idea that such
clearances were not obtained by DDA, they would not have
invested such huge sums of money. The stand that wherever
constructions have been made unauthorisedly demolition is
the only option cannot apply to the present cases, more
particularly, when they unlike, where some private individuals
or private limited companies or firms being allotted to have
made contraventions, are corporate bodies and institutions
and the question of their having indulged in any malpractices
in getting the approval or sanction does not arise. Some of the
allottees are the National Book Trust, School of Planning or
Architecture, Shri Ram Vithala Sikha Seva Samiti,
International Centre for Alternate Dispute Resolution and
Institute for Studies and Industrial Development. In most of
these cases the constructions are already complete and have
become functional.

DDA had also made some constructions at the site in
question. That being so, it is submitted that the
recommendations made by the Expert Committee should be
accepted.

Learned counsel for the DDA while adopting the
submissions made by the other respondents submitted that
the DDA proceeded on a bona fide impression that all requisite
clearances had been obtained by it. There was no question of
it acting in mala fide manner or irregular manner.

In view of what has been stated above, the MoEF has now
to take a decision by taking the land as constraint area. It is
needless to say that even if the land is held to be constraint
area the constructions thereon have to be made after having
the requisite clearance. The MoEF shall take note of the
stands projected by the respondents. We are prima facie
satisfied about the bona fides of the respondents but at the
same time it needs no emphasis that DDA should have been
more transparent in ensuring that it was not putting a site for
auction where there was scope for litigation. It had definitely
created an impression that all necessary clearances had been
obtained, though it does not appear to be so. What remains to
be decided as to what remedial measures including imposition
of such amounts as costs can be taken.

Let the MoEF take a decision within a period of 2 months
from today to avoid unnecessary delay. The IAs. are
accordingly disposed of.



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