Supreme Court of India
M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD. versus UNION OF INDIA THROUGH SECRETARY MINISTRY OF ENVIRONMENT AND FORESTS & ORS.CE F G H (I.A. NO.64665 OF 2019) IN on 11 September 2019
SUPREME COURT REPORTS
[2019] 12 S.C.R.
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M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD.
v.
UNION OF INDIA THROUGH SECRETARY MINISTRY OFENVIRONMENT AND FORESTS & ORS.
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(I.A. NO.64665 of 2019)
IN
(Civil Appeal No. 10854 of 2016)
SEPTEMBER 11, 2019
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[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Environmental Laws: Environment Impact Assessment (EIA)Notification dated 14.09.2006 – Schedule, Item No.8 – Interpretationof ‘built up area’ – In the instant application, the issue involvedDwas whether non-consideration of judgment delivered by a three-Judge Bench in *NOIDA Park case led to wrong conclusions bythis Court with regard to the interpretation of built up area in termsof Item No. 8 of the Schedule of the Notification dated 14.09.2006– The contention raised on behalf of the applicant was that sincethe three-Judge Bench in Para 84 of the judgment in *NOIDA ParkEcase observed that EIA Notification dated 14.09.2006 called for acloser second look by the authorities concerned especially in respectof the projects/activities falling within the ambit of Items 8(a) and8(b) of the Schedule to the Notification which needed descriptionwith greater precision and clarity and the definition of built up areaFwith facilities open to the sky needed to be freed from its ambiguityand vagueness, the two-Judge Bench in the instant case whichdelivered the judgment was bound by the said judgment and couldnot have held that Notification dated 14.09.2006 showed that allconstructed area which is covered and not open to the sky, has toGbe treated as built up area – Held:*NOIDA Park case wasconcerning a huge park – The main dispute in *NOIDA Park casewas whether the project was a building and construction project ora township and area development project – It was held in*NOIDAPark case that it was a township and area development project –
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While considering this dispute, the Court had felt that there wassome ambiguity – However, this dispute did not arise in the case inhand – The second point urged before the Court in *NOIDA Parkcase was that the facilities open to the sky i.e. the activity areashould also be included in the built up area and it was this confusionwhich the court wanted the Central Government to settle – No partyhad raised any contention in *NOIDA Park case about the coveredarea being built up area – All the parties were ad idem that coveredconstruction was built up area and the Court also held so – ThisCourt in this judgment has only held that all covered constructionshall be deemed to be built up area and that the municipal lawsregarding Floor Space Index (FSI) or Floor Area Ratio (FAR) haveno relevance – This issue did not arise in *NOIDA Park case –Therefore, the earlier judgment will have no impact on the instantcase – Application dismissed.
*Re: Construction of Park at Noida Near Okhla BirdSanctuary & Ors.(2011) 1 SCC 744 : [2010]15 SCR 783 – referred to.
Case Law Reference
referred toPara 1
CIVIL APPELLATE JURISDICTION: Interlocutory ApplicationNo. 64665 of 2019 in Civil Appeal No. 10854 of 2016.
From the Judgment and Order dated 27.09.2016 of the NationalGreen Tribunal (Western Zone) Bench, Pune in Application No. 184 of2015.
A. N. S. Nadkarni, ASG, Mukul Rohatgi, Ranjit Kumar, Ms. SoniaMathur, Sr. Advs., Venkita Subramoniam T. R., Rahat Bansal, MehulGupta, V. Mudgal, Rohit Raj, Shankey Agrawal, Mukesh Verma, PawanKumar Shukla, Yash Pal Dhingra, Makarand D. Adkar, Vijay Kumar,Ms. Aparna Jha, Nitin Lonkar, Ms. Sonali Suryawanshi, Shankey Agrawal,D. L. Chidananda, Ms. Suhasini Sen, G. S. Makker, Dr. Nishesh Sharma,Ranjan Kumar Chaurasia, Gurmeet Singh Makker, Nishant Sharma,Nishant Ramakantrao Katneshwarkar, Aman Varma, Advs. for theappearing parties.
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AThe following Order of the Court was passed:
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AThe following Order of the Court was passed:
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1. The only issue involved in this application is whether non-consideration of a judgment delivered by a three-Judge Bench in Re:Construction of Park at Noida Near Okhla Bird Sanctuary & Ors.[1],Bhereinafter referred to as ‘NOIDA Park case’, has led to wrongconclusions by this Court with regard to the interpretation of built uparea in terms of Item No. 8 of the Schedule of the Environment ImpactAssessment (EIA) Notification dated 14.09.2006. The relevant portionof the notification reads as follows:
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F2. While interpreting this clause, one of us (Deepak Gupta, J.)held as follows:
“13. From a bare perusal of the two hash tags (#) in Column 4and 5 of Item 8(a), it is apparent that what is shown under Column5 is actually a continuation of Column 4 and basically it describesGor defines ‘built up area’ to mean covered construction and if thefacilities are open to the sky, it will be taken to be the activityarea. This by itself clearly shows that under the notification of2006, all constructed area, which is covered and not open to the H1 (2011) 1 SCC 744
M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD. v. UNION OF INDIATHR. SECRETARY MINISTRY OF ENVIRONMENT AND FORESTS & ORS.
sky has to be treated as ‘built up area’. There is no exception fornon-FSI area.
14. Indeed, the concept of FSI or non-FSI has no concern orconnection with grant of EC. The same may be relevant for thepurposes of building plans under municipal laws and regulationsbut it has no linkage or connectivity with the grant of EC. WhenEC is to be granted, the authority which has to grant such clearanceis only required to ensure that the project does not violateenvironmental norms. While projects and activities, as mentionedin the notification, may be allowed to go on, the authority whilegranting permission should ensure that the adverse impact on theenvironment is kept to the minimum. Therefore, the authoritygranting EC may lay down conditions which the project proponentmust comply with. While doing so, such authority is not concernedwhether 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 constructionis excluded while calculating the FSI is no ground to exclude itwhile granting the EC. Therefore, when EC is granted for aparticular construction it includes both FSI and non-FSI areas.As far as environmental laws are concerned, all coveredconstruction, which is not open to the sky is to be treated as builtup area in terms of the EIA Notification dated 14.09.2006.”
3. The contention raised on behalf of the applicant is that sincethe three-Judge Bench had in Para 84 of the judgment in the NOIDAPark case observed that the EIA Notification dated 14.09.2006 callsfor a close second look by the authorities concerned especially in respectof the projects/activities falling within the ambit of Items 8(a) and 8(b)of the Schedule to the Notification which need to be described withgreater precision and clarity and the definition of built up area withfacilities open to the sky needs to be freed from its present ambiguityand vagueness, the two-Judge Bench which delivered the judgment wasbound by this judgment of three-Judge Bench and could not have heldthat the Notification dated 14.09.2006 clearly shows that all constructedarea which is covered and not open to the sky, has to be treated as builtup area.
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A4. Though the observations in Para 84, at first blush, support thecontention of the applicant, one has to appreciate the factual backgroundin which these observations were made. In the NOIDA Park case, thisCourt was asked to intervene and halt a project in which a huge parkwas being constructed. As far as Item 8(a) of the Schedule to theEIANotification, 2006 is concerned, the contentions in this regard start fromBPara 38. TheMoEF took the stand that no environmental clearance wasrequired because the project area was 33.43 hectares, which was lessthan 50 hectares and the built up area was 9542 sq. mtrs., which wasless than 20,000sq. mtrs.
5. It was contended on behalf of the petitioners and the amicusCcuriae that the project would fall under Section 8(a) because though thecovered construction of the project was only 6999.50 sq. mtrs., the projectby its very nature provided facilities open to the sky and the whole ofthis open area, which was activity area, should be treated as the built uparea. The park consisted of certain constructed structures like pathways,Dwalkways, statues, fountains, etc. which were open to the sky and treatedas activity area. The contention of the amicus curiae and the petitionerswho were objecting to the project was that the construction which wasopen to the sky and was to be treated as activity area should also beconsidered as part of the built up area.
E6. The main dispute in the NOIDA Park case was whether theproject was a building and construction project or a township and areadevelopment project. This Court held that this was a township and areadevelopment project. While considering this dispute the Court felt thatthere was some ambiguity. This issue did not arise in the case in hand.The second point urged before the Court was that the facilities open toFthe sky i.e. the activity area should also be included in the built up areaand it was this confusion which the court wanted the Central Governmentto settle. No party had raised any contention in the NOIDA Parkcaseabout the covered area being built up area. All the parties were adidem that covered construction was built up area and the Court also held E
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7. This Court in this judgment has only held that all coveredconstruction shall be deemed to be built up area and that the municipallaws regarding Floor Space Index (FSI) or Floor Area Ratio (FAR) haveno relevance. This issue did not arise in the NOIDA Park case.
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M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD. v. UNION OF INDIATHR. SECRETARY MINISTRY OF ENVIRONMENT AND FORESTS & ORS.
Therefore, in our opinion, the earlier judgment will have no impacton the present case.
Reference was also made to Notification dated 04.04.2011 andthe Clarification dated 07.07.2017. These have already been dealt within the judgment dated 10.08.2018 and those were not points of issue inthe NOIDA Park case. Therefore, we find no merit in the applicationand the same is dismissed accordingly.
Devika Gujral
I.A. dismissed.
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