M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD. versus UNION OF INDIA THROUGH SECRETARY MINISTRY OF ENVIRONMENT AND FORESTS & ORS. on 10 August 2018

1) The judges who heard the matter originally have applied theirmind and would know best the facts and legal position;

2) They will be in the best position to appreciate the matter inissue when a review is filed;

3) If the matter goes before another Bench that Bench will haveto virtually hear the matter afresh;

4) Most importantly, when the matter goes to a new Bench themembers of the new Bench may go by their own perspective andphilosophy which may be totally different to that of the Benchwhich originally heard the matter.

Further, judicial discipline, judicial traditions and consistency inpronouncements require that the Bench which heard the matteroriginally should hear the review petition unless it is virtually A

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Aimpractical for the original Bench to hear the matter, or wherethe members of the original Bench recuse. [Para 38] [1028-E-H;1029-A]

Malthesh Gudda Pooja v. State of Karnataka and Ors.(2011) 15 SCC 330 : [2011] 11 SCR 870 – relied on.BCommon Cause v. Union of India (2017) 9 SCC 499;Northern India Caterers India Ltd. v. Lt. Governor OfDelhi (1980) 2 SCC 167 : [1980] 2 SCR 650 –referred to.

Case Law Reference

C(2017) 9 SCC 499referred toPara 20[1980] 2 SCR 650referred toPara 36[2011] 11 SCR 870 relied onPara 37

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10854

of 2016DFrom the Judgment and Order dated 27.09.2016 of the NationalGreen Tribunal (Western Zone) Bench, Pune in Application No. 184 of2015 (WZ).

WITH

C.A. Nos. 10901/2016, 5157-5158/2018EA.N.S. Nadkarni, ASG, Ranjit Kumar, R.P. Bhatt, Kavin Gulati,Jayant Bhushan, Sr. Advs., Venkita Subramoniam T.R, Rahat Bansal,Braj K. Mishra, Vijay Kumar, Rohit Gupta, Ms. Aparna Jha, Ms. KritiSondhi, Shriram P. Pingle, Ms. Rashmi Dhongde, Nitin Lonkar, Ms. SonaliSuryavanshi, Nilesh Bhandari, Ashok Jain, Gurmeet Singh Makker, DivyaFPrakash Pande, Salvador Santosh Rebello, Niraj Kumar, Rahul Garg,Ridhi Kackkar, Ranjesh Kumar Sinha, Gaurav Rawal, Mukesh Verma,Pawan Kumar Shukla, Ms. Vasudha Zutshi, Yash Pal Dhingra, ShriramP. Pingle, Ms. Rashmi Dhongde, Nitin Lonkar, Ms. Sonali Suryavanshi,Nilesh Bhandari, Ashok Jain, Kunal Cheema, Nishant RamakantraoKatneshwarkar, Ninad Laud, Kush Chaturvedi, Ms. Anshula Grover,GAnjuman Tripathy, Somay Kapoor, Ms. Priyashree Sharma, Parth SinghChaudhry, Aman Verma, Advs. for the appearing parties.

The Judgment of the Court was delivered by DEEPAK GUPTA, J. 1. Applications for intervention/impleadment are allowed. Application for amendment of grounds ofHappeal in Civil Appeal No.10854 of 2016 allowed.

2. These matters are being decided by one judgment since theyall arise out of one original application filed by Shri Tanaji BalasahebGambhire (hereinafter referred to as ‘the original applicant’) before theNational Green Tribunal (‘the NGT’ for short) being Application No.184 of 2015.

3. The original applicant filed an application before the NGTclaiming that the project proponent i.e. M/s. Goel Ganga DevelopersIndia Pvt. Ltd., had raised construction in violation of the EnvironmentalClearance (‘EC’ for short) granted for the project and also in violationof the various municipal laws. It was prayed that the illegal structuresbe demolished; the State Level Environment Impact AssessmentAuthority (SEIAA) and the Maharashtra State Pollution Control Boardbe directed to initiate appropriate action against the project proponentfor 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 vide its order dated 27.09.2016 allowed the application in thefollowing terms:

“54. For the aforesaid reasons, the Applicant succeeds in hislegal pursuit to challenge the noncompliance of EC conditions bythe Respondent-9 and obtain certain directions. Hence theApplication is allowed and we issue following directions:

1. The Respondent No.9-PP shall pay environmentalcompensation cost of Rs. 100 crores or 5% (Five percent) ofthe total cost of project to be assessed by SEAC whichever isless for restoration and restitution of environment damagesand degradation caused by the project proponent by carryingout the construction activities without the necessary priorenvironmental clearance within a period of one month. Inaddition to this, it shall also pay a sum of Rs. 5 crores forcontravening mandatory provision of several EnvironmentalLaws in carrying out the construction activities in addition toand exceeding limit of the available environment clearance andfor not obtaining the consent from the Board.

2. In view of our finding that there has been manifest, deliberateor otherwise suppression of facts of illegality in the projectactivity of Respondent No. 9-PP by the officer of PMC, we A

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1010SUPREME COURT REPORTS

Aimpose fine of Rs. 5 Lakhs upon the PMC and directCommissioner PMC to take appropriate action against theerring officers. The amount of Rs. 5 Lakh shall be paid withinone month.

3. We direct the Chief Secretary, State of Maharashtra and theBcompetent authority to take notice of the conduct of the officersconcerned who have misled the Department of Environmentin the matter relating to interpretation of F.S.I and BUA interms of which order dated 31[st] May, 2016 has been issued inparticular the Principal Secretary, Department of Environmentwho has authored the order dated 31[st] May, 2016.

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4. PMC, DoE and SEIAA are directed to pay cost of Rs. 1 lakheach to the Applicant within 4 weeks.”

4. Aggrieved by the aforesaid order of the NGT, the projectproponent filed Civil Appeal No. 10854 of 2016. The Pune MunicipalDCorporation (‘PMC’ for short) also challenged the said order in so far asit adversely affects the PMC by filing Civil Appeal No. 10901 of 2016.

5. Review application being Application No. 35 of 2016 was filedby the original applicant before the NGT. This application was partlyallowed on 08.01.2018 and direction No. 1 in the original order dated27.09.2016 was modified and substituted as under:E

“1. The Respondent No.9-PP shall pay environmentalcompensation cost of Rs.190 crores or 5% (Five percent) of thetotal cost of project to be assessed by SEAC, whichever is more,for restoration and restitution of environment damage anddegradation caused by the project proponent by carrying out theFconstruction activities without the necessary prior environmentalclearance within a period of one month. In addition to this, itshall also pay a sum of Rs. 5 crores for contravening mandatoryprovision of several Environment Laws in carrying out theconstruction activities in addition to and exceeding limit of theGavailable environment clearance and for not obtaining the consentfrom the Board.”

6. Thereafter, the project proponent filed I.A. No. 8000 of 2018for permission to amend its appeal permitting it to challenge the orderpassed in review application dated 08.01.2018, which we have allowed.

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7. Appeal being Diary No. 3911 of 2018 was filed by the originalapplicant challenging the original order dated 27.09.2016 as well as theorder dated 08.01.2018 passed in review application praying thatdemolition of the illegal structures be ordered and the compensation beenhanced to Rs.500 crores.

The Factual Matrix

8. The facts briefly stated are that the project proponent purchased79,100 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 wereamalgamated in accordance with the rules and the plot became one plotof 79,100 sq. mtrs. From the documents placed on record it is apparentthat as per the Development Control Plan for the city of Pune, 3 roadsof the width of 36 mtrs., 30 mtrs. and 18 mtrs. bisected this plot into twowhich for the sake of convenience were referred to as Plot No. 1 andPlot No. 2. As per the Development Plan, there are certain statutoryreservations in addition to the roads and some land has to be left out orreserved for schools, cultural centres, open areas etc.. The remainingarea is referred to as the ‘Balance Plot Area’ which in this case worksout to 46,993.79 sq. mtrs.. Out of this ‘Balance Plot Area’ 15% is to bereserved for amenity space and another 10% area is to be compulsorilyleft 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 undisputedfact is that FSI has to be calculated on the ‘Net Plot Area’. We may, atthis stage, point out that the aforesaid figures are based on the writtensubmissions submitted on behalf of the Union of India by the learnedAdditional Solicitor General and these figures have not been disputedbefore us.

9. On 12.03.2007, the project proponent applied for sanction oflay 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 15313.16sq. mtrs.. Thereafter, on 05.09.2007, revised lay out plan was submittedfor an area measuring 28,233.23 sq. mtrs. and the sanctioned FSI was39,526.54 sq. mtrs.. The project proponent applied for EC for the projectand in the proposal dated 27.06.2007, he had shown that he would beerecting/constructing 12 buildings having 552 flats, 50 shops and 34offices. The 12 buildings were to have stilts with basement and 11floors. The total built up area was indicated as 57,658.42 sq. mtrs.. The A

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AEC was granted to the project proponent on 04.04.2008. Paras 2 and 3of the communication granting EC read as under:

“2. The project proponent is proposing for construction of grouphousing project at S.No.35 to 40, village Vadgaon Budruk, SinghadRoad, Pune, Maharashtra at a cost of Rs. 10,737.14 lakh. TheBproject involves construction of 12 Building with Stilt, Basementplus 11 floors for 552 flats, 50 shops and 34 offices. The totalplot area is 79,100.00 sq. m. Total built up area as indicated is57,658.42 sq. m. Total water requirement will be 745 KLD and400 KLD of waste water will be generated from the buildingswhich will be treated in sewage treatment plant. The treatedCwaste water will be used for landscaping, DG set cooling andHorticulture purpose. The solid waste generated from thebuildings will be 1500 Kg/day and disposed as per the MSWRules, 2000. The parking space is proposed for parking of 1072cars.

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“3.The EAC after due consideration of the relevantdocuments submitted by the project proponent and additionalclarifications furnished in response to its observations haverecommended the grant of environmental clearance for the projectmentioned above subject to compliance with the EMP and otherEstipulated conditions. Accordingly, the Ministry hereby accordsnecessary environmental clearance for the project under category8 (a) of EIA Notification 2006 subject to the strict compliance with the specific and general conditions mentioned below:”

with the specific and general conditions mentioned below:”

10. The EC was granted subject to certain conditions. We mayrefer to certain relevant conditions which read as under:F

“PART A- SPECIFIC CONDITIONS

I. Construction Phase

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v. sPermission to draw and use ground water for constructionwork shall be obtained from competent authority prior toconstruction/operation of the project.”

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“5. In the case of any change(s) in the scope of the project, theproject would require a fresh appraisal by this Ministry.”

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Concept of ‘Built up Area’ under the notification dated14.09.2006:

11. It is not disputed that the EC was granted for built up area of57,658.42 sq. mtrs.. The main dispute is with regard to the interpretationof the term ‘built-up area’. The case of the project proponent is that theterm ‘built up area’ is synonymous with ‘Floor Space Index’ or FSI andthat 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, thesubmission made by the original applicant as well as by the learnedAdditional Solicitor General appearing for the Ministry of Environment,Forest and Climate Change is that the built up area will cover allconstructed area and the concept of FSI area or non-FSI area is totallyalien to environmental laws. Learned senior counsel for the projectproponent has drawn our attention to the Development Control Rulesfor Pune Municipal Corporation, Pune, 1982 (‘DCR’ for short). Underthe DCR, no building can be constructed without grant of buildingpermission/commencement certificate by the Pune MunicipalCorporation. There is a detailed procedure for obtaining the buildingpermission/commencement certificate wherein lay out plans, buildingplans etc. have to be submitted. The main emphasis was on Rule 2.13of the DCR, which defines built up area as follows:- “2.13 Built-up Area – Area covered immediately above theplinth level by the building or external area of any upper floorwhichever 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 bydividing the total covered area (plinth area) on all floors excludingexempted areas as given in Rule No. 15.4.2 by the area of theplot.

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.)”

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AStrong 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 17.7.3the following shall not be included in covered area or F.A.R. andBuilt-up Area calculations.”

(a) A basement or cellar space under a building constructed onBstilts and used as parking space, and air-conditioning plantrooms used as accessory to the principal use; (b)Electric cabin or substation, watchman’s booth of maximumsize of 1.6 sq.m. with minimum width or diameter of 1.2 m,pump house, garage shaft, space required for location ofCfire 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 ofDdimensions as permissible under these rules.

Note:The shaft provided for lift shall be taken for covered areacalculations only on one floor upto the minimum requiredas per these rules.

(e) One room admeasuring 2m x 3m on the ground floor of co-Eoperative housing societies or apartment owners/co-operative societies buildings and other multistoreyed buildingas office-cum-letter box room.

(f) Rockery, well and well structures, plant, nursery, water-pool, swimming pool, (if uncovered) platform round a tree,Ftank fountain, bench, chabutra with open top and unenclosedsides 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)Gand Built-up area not more than 4 sq. m.”

12. The contention of learned senior counsel appearing for theproject proponent is that while calculating the built up area theconstructions mentioned in Rules 15.4.1.1 (a), (b) and (c) and Rule 17.7.3in addition to the areas specifically exempted under Rule 15.4.2 are to H

be excluded. He submits that if the built up area is calculated inaccordance with the DCR then the project proponent has till date notconstructed the built up area of 57,658.42 sq. mtrs., which it was permittedto construct under the EC granted to it on 04.04.2008. On the otherhand, the stand of the Union of India and the original applicant is thatbuilt up area means all area which is covered regardless of the areabeing FSI or non FSI in terms of the EIA Notification of 2006. TheBuilding/Construction projects are covered by Item No. 8 of the Scheduleto the EIA Notification dated 14.09.2006. Construction of a projectwhich is covered under the schedule can be commenced only afterobtaining EC in terms of Para 2 of the said notification. The scheduleitself categorises the various projects and activities into two categoriesbeing ‘Category A’ and ‘Category B’. ‘Category A’ projects requireclearance by the Central Government in the Ministry of Environment,Forest and Climate Change on the recommendation of the ExpertAppraisal Committee to be constituted by the Central Governmentwhereas those activities which form ‘Category B’ of the scheduleincluding modernization and expansion of such projects require EC fromthe State/Union Territory Environment Impact Assessment Authority(SEIAA) and such authority is required to base its decision on therecommendation of the State/Union Territory Level Expert AppraisalCommittee (SEAC). There is further division of ‘Category B’ into B1and B2. B1 projects require Environmental Impact Assessment (EIA)report to be prepared and scoping to be done whereas B2 projects donot require any Environmental Impact Assessment report. Item No. 8of the Schedule, with which we are concerned, reads as follows:

(1) (2)(3)(4)(5)8Building/Construction projects/Area Development projects and Townships8(a)Building and >20000 sq. #(built up area for Construction mtrs. And covered projects <1,50,000 sq. construction; in the mtrs. Of built-case of facilities up area# open to the sky, it will be the activity area)8(b)Townships Covering an ++All projects and Area area >50 ha under Item 8(b) Developmenand or built shall be appraised t projects up area as Category B1. >1,50,000 sq. mtrs. ++

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A13. From a bare perusal of the two hash tags (#) in Column 4 and5 of Item 8(a), it is apparent that what is shown under Column 5 isactually a continuation of Column 4 and basically it describes or defines‘built up area’ to mean covered construction and if the facilities are opento the sky, it will be taken to be the activity area. This by itself clearlyshows that under the notification of 2006, all constructed area, which isBcovered 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 orconnection with grant of EC. The same may be relevant for the purposesof building plans under municipal laws and regulations but it has no linkageCor connectivity with the grant of EC. When EC is to be granted, theauthority which has to grant such clearance is only required to ensurethat the project does not violate environmental norms. While projectsand activities, as mentioned in the notification, may be allowed to go on,the authority while granting permission should ensure that the adverseDimpact on the environment is kept to the minimum. Therefore, the authoritygranting EC may lay down conditions which the project proponent mustcomply with. While doing so, such authority is not concerned whetherthe area to be constructed is FSI area or non-FSI area. Both will havean equally deleterious effect on the environment. Construction impliesusage of a lot of materials like sand, gravel, steel, glass, marble etc., allEof which will impact the environment. Merely because under the municipallaws some of this construction is excluded while calculating the FSI isno ground to exclude it while granting the EC. Therefore, when EC isgranted for a particular construction it includes both FSI and non-FSIareas. As far as environmental laws are concerned, all coveredFconstruction, which is not open to the sky is to be treated as built up areain terms of the EIA Notification dated 14.09.2006.

Notification of 04.04.2011

15. Our attention has been drawn to the notification dated04.04.2011 issued by the Ministry of Environment and Forests. By meansGof this notification, the words of Column 5 against Item 8(a) have beenreplaced and substituted as under:

“The built up area for the purpose of this Notification is definedas “the built up or covered area on all the floors put togetherincluding basement(s) and other service areas, which areHproposed in the building/construction projects”.”

This notification clearly defines built up area as all constructed areaincluding basement and service areas without any exception.

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16. Learned senior counsel appearing for the project proponenthas submitted that this notification is only prospective in nature and,therefore, will not affect the notification of 2006. On the other hand, ithas been submitted by the original applicant that this is only a clarificatorynotification and as such it will come into force with effect from 2006. Inour opinion, it is not at all necessary to decide whether this notification isclarificatory or is in substitution of the original notification of 2006. Wesay this because as held by us above, there is no ambiguity with regardto the definition of ‘built up area’ even under the notification of 2006 andit covers all constructed area not open to the sky. The notification of2011 only provides that the built up area or covered area shall be thearea of all floors put together including basement(s) and other serviceareas. We may again re-emphasize that this definition also is inconsonance with the concept of grant of EC for construction as explainedabove and it is obvious that the concept of FSI or non-FSI area is alien toenvironmental laws.

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Clarification dated 07.07.2017

17. Strong reliance has been placed by the project proponent onthe 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:- E

F.No. 22-35/2017-IA.III

Government of India

Ministry of Environment, Forest and Climate Change(Impact Assessment Division)

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Indira Paryavaran Bhawan

Jor Bag Road, Aliganj,New Delhi-110 003

GDated 7[th] July, 2017

OFFICE MEMORANDUM

Sub: Clarification on the date of applicability ofnotification S.O.(E) 695 dated 04.04.2011 issued byMoEF & CC defining ‘Built Up Area’ of the project H

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The Ministry is in receipt of a reference dated 03.04.2017from Confederation of Real Estate Developers Association ofIndia (CREDAI) seeking clarification on above mentionedsubject. The CREDAI has requested that the definition of BuiltUp Area (BUA) given vide notification S.O.695(E) dated04.04.2011 should have prospective effect.

2. The matter has been examined in the Ministry. The BUAdefined in the notification S.O. 1533 (E) dated 14[th] September,2006 mentions at Item 8 (a) columns 4 and 5 “built up area forcovered construction, in the case of facilities open to sky, it willbe the activity area”.

3. The Ministry has further defined BUA vide its notificationS.O.695 (E) dated 04.04.2011 which reads as, “the built up orcovered area on all the floors put together including its basementand other service areas, which are proposed in the building orDconstruction project.”

4. The definition provided in the Ministry’s notification will haveits effect from the prospective date of the notification only. Theprojects which are not covered in the period of above notificationsEshould be assessed as per the definition of built up area providedin 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 DirectorPh:011-24695474

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All States/UTs/SIEAAs/MoEF & CC Divisions GIt is urged on the basis of the aforesaid memorandum that prior to thenotification dated 04.04.2011, the built up area had to be calculated andassessed as per the building bye-laws or the Development ControlRegulations of the local authorities in the States. On behalf of the originalapplicant it has been urged that this memorandum is meaningless andthat it has been issued when the matter was pending before the NGT, atH

the instance of one of the Directors of the project proponent, Shri AtulGoel, who was Joint Secretary of Confederation of Real EstateDevelopers Association of India (CREDAI), Pune.

18. Without going into this aspect of the matter, we are clearly ofthe view that such an office memorandum could not and should not havebeen issued. The notification dated 14.09.2006 is a statutory notificationissued in terms of Rule 5(3) of the Environment (Protection) Rules, 1986which provides that before such a notification is issued the CentralGovernment has to give notice of its intention of issuing a notificationand objections to the same are invited. No doubt the Central Governmentis empowered in public interest to dispense with the requirement of noticebut this obviously has to be done in exceptional cases. The notificationdated 14.09.2006 was issued by the Central Government and publishedin the gazette after inviting objections from the public. The firstclarification with regard to this notification was issued on 04.04.2011 towhich we have adverted above. These two decisions of the CentralGovernment which were notified as per the provisions of law could nothave been set at naught by the Joint Director even if it was issued withthe approval of a higher authority. We are of the view that since suchdecision has not been notified in the gazette the statutory notificationdated 14.09.2006 and its subsequent clarification dated 04.04.2011 couldnot have been virtually set aside by this office memorandum.

19. We are also of the view that the so called office memorandumis not at all clarificatory in nature. As held by us above the notification of2006 with regard to ‘built up area’ was absolutely clear and needed noclarification. We fail to understand how the concept of built up area asunderstood in the building bye-laws or DCR could be introduced into thenotification of 2006 by this office memorandum which virtually madethe notification of 2006 totally redundant. Therefore, we quash the officememorandum dated 07.07.2017.

20. This is not the first time that we have noticed such clarificatorycommunications being issued by the officials of the Ministry ofEnvironment, Forest and Climate Change, which virtually have the effectof nullifying the statutory provisions and notifications. We have advertedto some of these communications in our judgment in Common Causevs. Union of India[1]. We expect the officials of the Ministry of A

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AEnvironment, Forest and Climate Change to take a stand which preventsthe environment and ecology from being damaged, rather than issuingclarifications which actually help the project proponents to flout the lawand harm the environment.

21. In view of the above, we are clearly of the view that the ECBgranted to the project proponent on 04.04.2008 was for constructing atotal built up area of 57,658.42 sq.mtrs. and this would include all coveredconstruction not open to the sky. No artificial division on the basis ofFSI and non-FSI area can be made. Therefore, the NGT was fullyjustified in coming to the conclusion that the construction raised by theproject proponent was in total violation of the EC granted to it.C

Environmental Clearance dated 20.11.2017

22. The project proponent has drawn our attention to the EC forexpansion of the project in question granted to it by the State LevelEnvironment Impact Assessment Authority (SEIAA) on 20.11.2017.DWe may note that this clearance indicates that the existing constructioncomprises of 738 flats and 115 shops which have been completed, 69flats and 2 shops which are under construction, meaning thereby that807 flats and 117 shops are already in existence and in addition thereto454 more flats and cultural centre are sought to be constructed. Thiswill take the total number of flats to 1261 and number of shops to 117.EWe may also notice that the SEIAA has laid down general conditions forpre-construction phase and the first condition is as follows :- “(1)This environmental clearance (EC) is issued for totalbuilt up area of 147219.45 m[2] as approved by local planningauthority. It is noted that the total proposed construction area isF147219.45 m[2] which includes the area of previous EC (dated04.04.2008) 57,658.42 m[2] and the proposed expansion area of89,561.03 sq.m. However the above area of 147219.45 sq.m. isnotional as the NON FSI area component of the previous EC isnot included in 1,47,219.45 m[2. ] After considering the NON FSIGarea of the previous EC the total built up area becomes1,81,230.94 m[2]. SEIAA has also taken note of the clarificationissued by MOEF and CC vide office memorandum dated 7[th]July, 2017, stating the definition of built up area will be assessedas per the building bye-laws or DCR of the local authorities inthe states.”

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The aforementioned condition itself clearly shows that the non-FSI areaconstructed by the project proponent under first EC of 04.04.2008 hasnot been taken into consideration. The project proponent has raisedconstruction 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 totalconstruction raised in Plot No. 1 is 94,513.13 sq. mtrs.. In Plot No. 2 theconstruction 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 alreadyraised in Plot No. 2 is 5,489.12 sq. mtrs.. The total construction raisedby the project proponent is 1,00,002.25 sq. mtrs. against the built up areaof 57,658.42 sq. mtrs. mentioned in the EC of 04.04.2008. This couldnot have been ignored by the SEIAA.

23. In case the total construction raised by the project proponentis taken as 1,00,002.25 sq. mtrs. and if the area of the proposedconstruction is added then the project will fall in B1 category and, therefore,the SEIAA had no authority to grant EC by treating the project asfalling under Category B2. Furthermore, the EC dated 20.11.2017 isalso illegal as the same has been granted on the presumption of theorder dated 31.05.2016 passed by the Principal Secretary, EnvironmentDepartment, State of Maharashtra holding that the construction of 18buildings instead of 12 buildings is permissible. The EC completely lostsight of the fact that the order dated 31.05.2016 was quashed and setaside by the NGT in its order dated 27.09.2016. We may note that theofficial who passed the order on 31.05.2016 was the same official, whoheld the office of Member Secretary of SEIAA, which grantedenvironmental clearance on 20.11.2017. Therefore, the EC dated20.11.2017 was beyond the authority of SEIAA and was granted undera totally false assumption and the same is therefore quashed and setaside.

Allegations made by the original applicant against various officials

24. The NGT in its order dated 27.09.2016, has found that therewas suppression of facts by the officers of PMC. The NGT also directedthe Chief Secretary to the State of Maharashtra to take notice of theconduct of the officers who were misleading the Department ofEnvironment. Costs were imposed on the PMC, Department ofEnvironment and the SEIAA. This has been challenged before us bythe PMC.

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A25. The original applicant both in his original application filed beforethe NGT and in appeal filed before us as well as in other proceedingshas made serious allegations against individual officers of the PMC aswell as the SEIAA and specially the Principal Secretary, EnvironmentDepartment, Govt. of Maharashtra. However, for reasons best knownto the original applicant none of these individuals has been made a partyBin personal capacity in these proceedings. The law is well settled thatno person can be condemned unheard. It would, therefore, not be fairon our part, to deal with allegations made against individuals who are notparties to the petition and who have had no chance to reply to theallegations levelled against them. Therefore, we refrain from commentingCon the conduct of the officials in their individual capacity.

26. However, as far as their official capacity is concerned, weare of the view that the NGT was fully justified in coming to the conclusionthat certain officials of PMC were going out of their way to help theproject proponent and we, therefore, uphold the directions given by theDNGT 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 notificationsof 2006 and 2011 being clear and unambiguous, the officials of PMChave given an interpretation which was tailor-made to suit the projectproponent. This was being done even before the clarification of07.07.2017 was issued. This clearly indicates that some officials of theEPMC were espousing the case of the project proponent at the cost ofthe environment.

27. We may also observe that prima facie we are of the viewthat the Principal Secretary, Environment Department, Govt. ofMaharashtra has not acted in a fair and transparent manner. TheFallegations 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 31[st] May,2016 of Principal Secretary, Environment Department, it is seenthat he has declared construction of 18 buildings on the site insteadof 12 buildings is permissible which, according to him, only achanges on configuration of buildings. This opinion undoubtedlyis based on his erroneous conclusion that total BUA which isnothing but F.S.I. consumed i.e. 48617.14 sq.mts which is withinthe EC limit as against the actual construction activity which has G

exceeded over 100000 sq.mtrs BUA. Hence we set aside thatorder/communication dated 31[st] May, 2016.”

The official holding the post of Principal Secretary must have been awareof these directions because he was a party to the proceedings beforethe NGT. Despite that, while granting fresh EC on 20.11.2017, thisofficial noticed that reference to the Environment Department forverification of files was withdrawn vide letter dated 31.05.2016 and thematter has been considered afresh. When the letter dated 31.05.2016had been quashed the obvious result would be that action had to betaken in accordance with the earlier directions in the 27[th] meeting ofSEAC III (Non-MMR) held from 10[th] to 13[th] March, 2015 and the 87[th]meeting of SEIAA held on 10[th] to 12[th] August, 2015. This was not done.His actions need to be looked into and, therefore, we uphold the directiongiven by the NGT directing the Chief Secretary to the State ofMaharashtra to take notice of the conduct of the concerned officers.We further direct the Chief Secretary to file detailed report in respect ofthe conduct of the then Principal Secretary, Department of Environmentto the NGT within 3 months which will thereafter pass appropriatedirections in the matter.

Challenge to the order dated 08.01.2018 passed in ReviewApplication No.35 of 2016:

28. This order has been challenged both by the project proponentby amending the appeal and by the original applicant by filing a separateappeal.

29. Section 19(4)(f) of the National Green Tribunal Act, 2010provides that the Tribunal shall have the same powers as are vested inCivil Courts while trying a suit in respect of matters relating to review ofits decisions. Therefore, the power of review vested with the NGT isakin to the power vested with the Civil Court. As such, the principleswhich govern the exercise of review jurisdiction before a Civil Courtwill apply with equal force to the NGT.

30. Rule 22(2) of the National Green Tribunal (Practices andProcedure) Rules, 2011 provides that a review application shall ordinarilybe heard by the Tribunal at the same place of sitting which has passedthe order unless the Chairperson may, for reasons to be recorded inwriting, direct it to be heard by the Tribunal sitting at any other place.

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ASub-rule(3) of Rule 22 provides that ordinarily review application shallbe disposed of by circulation.

31. Since the powers of review which the NGT exercises areakin to those of a Civil Court it would be pertinent to refer to relevantportions of Order XLVII of Civil Procedure Code, 1908, which readBas follows:-

“1. Application for review of judgment.- (1) Any personconsidering himself aggrieved—(a) by a decree or order fromwhich an appeal is allowed, but from which no appeal has beenpreferred,(b) by a decree or order from which no appeal is allowed,Cor(c) by a decision on a reference from a Court of SmallCauses,and who, from the discovery of new and important matteror evidence which, after the exercise of due diligence was notwithin his knowledge or could not be produced by him at thetime when the decree was passed or order made, or on accountof some mistake or error apparent on the face of the record, orDfor any other sufficient reason, desires to obtain a review of thedecree passed or order made against him, may apply for a reviewof judgment to the Court which passed the decree or made theorder.(2) A party who is not appealing from a decree or ordermay apply for a review of judgment notwithstanding the pendencyEof an appeal by some other party except where the ground ofsuch appeal is common to the applicant and the appellant, orwhen, being respondent, he can present to the Appellate Courtthe case on which he applies for the review.

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5. Application for review in court consisting of two or moreJudges.- Where the Judge or Judges, or any one of the Judges,who passed the decree or made the order, a review of which isapplied for, continues or continue attached to the court at thetime when the application for a review is presented, and is not orare not precluded by absence or other cause for a period of sixmonths next after the application from considering the decree ororder to which the application refers, such Judge or Judges orany of them shall hear the application, and no other Judge orJudges of the Court shall hear the same.”

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32. The project proponent has urged various grounds to challengethe order passed in the review application. The first ground is that whereasthe original order was passed by a Bench comprising of Dr. JusticeJawad Rahim and Dr. Ajay A. Deshpande, the review application washeard and decided by a Bench comprising of Justice U.D. Salvi and Dr.Nagin Nanda. It has been urged that Dr. Justice Jawad Rahim continuesto be a Judicial Member of the NGT and, in fact, was sitting in theWestern Bench at Pune on 08.01.2018 when the impugned judgment inreview was pronounced by the NGT.

33. We are clearly of the view that a review petition shouldnormally be heard by the same Bench which originally decided the matter.A review petition should not be heard by any other Bench unless it isimpossible or totally impracticable for the earlier Bench to hear the matter.In a review petition, like in the present case, where the review petitionercontends that certain arguments raised by him have not been consideredthen it is only the judges who originally heard the matter who can decidewhether such point was urged or not. In the present case the reviewapplication was based mainly on the contention that the affidavit dated18.05.2016 was not taken into consideration by the Bench.

34. It is well known that parties raise various contentions in theirpleadings or in their evidence. On many occasions when arguments areheard many of the pleas are not urged. Any judicial authority includingthe NGT which is presided over by a judicial member who may be aretired judge of this Court or of a High Court is expected to deal with allcontentions raised before it. There is a presumption that judicial authoritiesmust have dealt with all the contentions raised before them. If a partyurges that some of the contentions urged by it have not been taken intoconsideration then it has to file a review application and it is but obviousthat such review application should be heard by the same Bench whichhad 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 reviewapplication shall be disposed of by circulation. If the review applicationis to be disposed of by circulation then there is no problem in the matterbeing circulated before the very same Bench which had earlier heardthe matter. This can be done even at a place which may be differentfrom the original place of hearing. It is only if the Bench decides to give AB

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Aoral hearing in the review application and notice is issued to the oppositeparty that sub-rule(2) of Rule 22 will come into operation. According tosub-rule(2) the matter should ordinarily be heard at the same place ofsitting where it was originally decided. However, this is not a mandatorydirection because sub-rule(2) itself contemplates that the matter shall‘ordinarily’ be heard at the same place. In tribunals like the NGT whereBmembers may be transferred from one Bench to another or may beattending a Bench on circuit then problems can sometimes arise. Theseissues can be easily resolved by resorting to the latest technology and ifnecessary the arguments in such cases can be heard by videoconferencing. The normal rule that the same Bench should hear theCreview application should not be disturbed unless it is virtually impossiblefor the original Bench to hear the matter or the members of the Benchthemselves opt not to hear the matter.

36. In this behalf, we must remind ourselves that the power ofreview is a power to be sparingly used. As pithily put by Justice V. R.DKrishna Iyer, J., “A plea for review, unless the first judicial view ismanifestly distorted, is like asking for the moon”[2]. The power of reviewis not like appellate power. It is to be exercised only when there is anerror apparent on the face of the record. Therefore, judicial disciplinerequires that a review application should be heard by the same Bench.Otherwise, it will become an intra court appeal to another Bench beforeEthe same court or tribunal. This would totally undermine judicial disciplineand judicial consistency.

37. We may refer to the judgment of this Court in Malthesh GuddaPooja vs. State of Karnataka and Ors. [3]. In that case a writ appealwas disposed of by a Division Bench comprising of Hon. V. GopalaFGowda and L. Narayana Swamy, JJ., at the Dharwad Circuit Bench ofthe Karnataka High Court. Thereafter, a review petition was filed beforea Bench comprising of Hon. K. Sreedhar Rao and Ravi Malimath, JJ..An objection was raised that the review petition should be heard by thesame judges who had originally heard the matter but this objection wasGoverruled and the review petition was allowed and the appeal was orderedto be listed afresh before the Division Bench. This appeal was listedbefore the Dharwad Circuit Bench consisting of Hon. D.V. ShailendraKumar and N. Ananda, JJ.. This Bench held that the order of review 2 (1980) 2 SCC 167H3 (2011) 15 SCC 330

2 (1980) 2 SCC 167H3 (2011) 15 SCC 330

passed was a nullity since the judges who had heard the review shouldnot have heard the same especially when the judges of the original Benchwere available. The matter came to this Court and this Court afterreferring to Order XLVII Rule 5 of CPC and Rule 5 of High Court ofKarnataka Rules, 1959 and taking note of the fact that the Chief Justiceof the Karnataka High Court had passed an order that the review petitionbe listed as per roster held as follows :- “18. Order 47 Rule 5 of the Code and Chapter 3 Rule 5 of theHigh Court Rules require, and in fact mandate that if the Judgeswho made the order in regard to which review is sought continueto be the Judges of the Court, they should hear the applicationfor review and not any other Judges unless precluded by death,retirement or absence from the Court for a period of six monthsfrom the date of the application. An application for review is notan appeal or a revision to a superior court but a request to thesame court to recall or reconsider its decision on the limitedgrounds prescribed for review. The reason for requiring the sameJudges to hear the application for review is simple. Judges whodecided the matter would have heard it at length, applied theirmind and would know best, the facts and legal position in thecontext of which the decision was rendered. They will be able toappreciate the point in issue, when the grounds for review areraised. If the matter should go before another Bench, the Judgesconstituting that Bench will be looking at the matter for the firsttime and will have to familiarise themselves about the entire caseto know whether the grounds for review exist. Further, when itgoes before some other Bench, there is always a chance thatthe members of the new Bench may be influenced by their ownperspectives, which need not necessarily be that of the Benchwhich decided the case.

19. Benjamin Cardozo’s celebrated statement in The Nature ofJudicial Process, (pp. 12-13) is relevant in this context:

“There is in each of us a stream of tendency, whether youchoose to call it philosophy or not, which gives coherence tothought and action. Judges cannot escape that current any morethan other mortals. All their lives, forces which they do notrecognise and cannot name, have been tugging at them—inheritedinstincts, traditional beliefs, acquired convictions; … In this mental A

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Abackground every problem finds its setting. We may try to seethings as objectively as we please. Nonetheless, we can neversee them with any eye except our own.”

20. Necessarily therefore, when a Bench other than the Benchwhich rendered the judgment, is required to consider an applicationBfor review, there is every likelihood of some tendency on thepart of a different Bench to look at the matter slightly differentlyfrom the manner in which the authors of the judgment looked atit. Therefore the rule of consistency and finality of decisions,makes it necessary that subject to circumstances which maymake it impossible or impractical for the original Bench to hearCit, the review applications should be considered by the Judge orJudges who heard and decided the matter or if one of them isnot available, at least by a Bench consisting of the other Judge.It is only where both Judges are not available (due to the reasonsmentioned above) the applications for review will have to beDplaced before some other Bench as there is no alternative. Butwhen the Judges or at least one of them, who rendered thejudgment, continues to be members or member of the court andavailable to perform normal duties, all efforts should be made toplace it before them. The said requirement should not be routinelydispensed with.”E

38. A perusal of the above judgment leaves no manner of doubtthat this Court has held that in terms of Order XLVII Rule 5 of CPC, areview should normally be heard by the same Bench which passed theoriginal order. We may reiterate the reasons given by this Court. Theseare :-F

1) The judges who heard the matter originally have applied their mindand would know best the facts and legal position;

2) They will be in the best position to appreciate the matter in issuewhen a review is filed; G3) If the matter goes before another Bench that Bench will have tovirtually hear the matter afresh;

4) Most importantly, when the matter goes to a new Bench the membersof the new Bench may go by their own perspective and philosophy whichmay be totally different to that of the Bench which originally heard theHmatter.

We may again re-emphasize that judicial discipline, judicial traditionsand consistency in pronouncements require that the Bench which heardthe matter originally should hear the review petition unless it is virtuallyimpractical for the original Bench to hear the matter, or where themembers of the original Bench recuse.

39. Another ground raised is that the statutory appeal was alreadypending in this Court against the original order when the review applicationwas taken up for hearing. It is contended, on the basis of Order XLVIIRule 1(2) of CPC, that review application should not have been taken upfor hearing because the original applicant could have before this Courttaken 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 apparenton record and as such the power of review could not have been exercised.As far as the facts of this case are concerned we are clearly of the viewthat the original applicant could have raised all issues which he raised inreview application even by filing a counter affidavit in the appeal filed bythe project proponent or by challenging the original order in this Court ashe has done now. In this context, once this Court was seized of thematter and all issues were being urged, the NGT should not haveproceeded to hear the review application.

40. We may add that on 21.12.2016, the review application itselfwas listed before the Bench of Dr. Justice Jawad Rahim and Dr. AjayA. Deshpande, which adjourned the matter to 25.01.2017 to hear itregarding maintainability of the review application in view of the statutoryappeal provided under the National Green Tribunal Act, 2010. However,the matter got listed before the other Bench and on 25.07.2017, the saidBench considered this objection raised by the project proponent in termsof Order XLVII Rule 1 of the CPC and the Bench held as follows:

“Having perused the record, we find that the Appellant is seekingquashing of the order of compensation in totality and the ReviewApplicant is seeking enhancement of the compensation grantedby the Tribunal. We do not see any commonality in the groundsresorted to by the Applicant and Appellant in the said Appeal.Exception to Sub-clause 2 of Order 47 Rule 1 of Code of CivilProcedure, therefore, does not come to the help of RespondentNo.9. We are, therefore, of the considered opinion that theReview Application is maintainable. Plea of non-maintainabilityof the Review Application is rejected.”

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A41. We are of the view that the aforesaid finding is incorrect.The project proponent had not only challenged the original order of theNGT on the ground that he had not violated the EC but also on theground that the damages awarded were highly excessive. Therefore,the question that what should be the extent of damages was specificallybefore this Court. We are therefore, clearly of the opinion that theBBench hearing the review application erred in holding that the reviewapplication was maintainable despite the appeal pending before this Court.

42. We may also note that the Bench which heard the review hasrejected all other grounds of review mainly on the ground that there is noerror apparent on the face of the record but has only dealt with the issueCof enhancement of damages to be imposed on the basis of ‘CarbonFootprint’ relying on the affidavit dated 18.05.2016. The Bench notedthat this affidavit had not been taken into consideration by the earlierBench. How could the latter Bench hearing the review application knowwhether any reference was made to this affidavit at the time of originalDhearing or not? In fact, the project proponent urges that this affidavitwas never filed on 18.05.2016.

43. Here, it would be pertinent to mention that according to theoriginal applicant he was given oral permission by the Bench to file suchan affidavit on 23.02.2016. We have perused the order dated 23.02.2016Eand find that it makes no mention of any such request being made. Ifthere is no such request then the question of issuing an oral direction tofile such an affidavit does not arise. We may also add that after23.02.2016, 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 beforethe NGT. In none of the orders there is any reference to Carbon FootprintFor to any affidavit to be filed by the original applicant. If an oral permissionhad been given, obviously the original applicant would have either filedan application or would have made a request that he wants to file suchan affidavit.

44. The affidavit in question is dated 18.05.2016 and it is allegedGthat it was filed on 18.05.2016. The matter was listed for hearing on19.05.2016 on which date also there is no reference to any such affidavit.It would be pertinent to note that in between the project proponent hadfiled an M.A. No. 389 of 2016 before the Principal Bench stating that aninterim order dated 23.12.2015 had been passed against it and the matterHwas not being heard and, therefore, it may be heard by a Bench presided over by Dr. Justice Jawad Rahim, who apparently was holding Court inthe Pune Bench at that time and the Principal Bench allowed the sameon 02.05.2016 directing that the matter be listed before the Bench presidedover by Dr. Justice Jawad Rahim. On 19.05.2016, the original applicantsought time stating that he had filed review application against the orderdated 02.05.2016 before the Principal Bench praying that the mattershould be heard by the earlier Bench presided over by Justice U.D.Salvi and, therefore, the matter could not be heard by Dr. Justice JawadRahim on that day and was further adjourned to 23.05.2016. There isno reference to Carbon Footprint in the order dated 19.05.2016. On23.05.2016, the matter was heard by the Bench presided over by Dr.Justice Jawad Rahim and the orders reserved. In this order also there isno reference to the affidavit with regard to Carbon Footprint. If thefiling 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 beenfiled. Subsequently, the project proponent, who is the contestingrespondent, filed an application on 20.07.2016 praying that in themeantime he had obtained permission of the Environment Departmentand 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 samefrom reserved list since there were subsequent developments. On28.07.2016 the matter was got adjourned to 02.08.2016 on which datesome execution application for implementation of the interim orders wastaken up and direction was issued to the PMC. The matter was againtaken up on 08.08.2016, 19.08.2016 and 24.08.2016 when the hearingwas closed and judgment was pronounced through video conferencingon 27.09.2016. In none of these orders any mention was made forCarbon Footprint or to the affidavit on the basis of which the reviewapplication was filed. On 23.05.2016 the project proponent filed reply tothe affidavit dated 18.05.2016 filed by the original applicant in whichthey raised objections that such affidavit was not filed on 18.05.2016and the copy of the same was handed over to them on 20.05.2016 andthe original applicant had no permission to file such an affidavit. Allthese disputed issues as to whether such an affidavit was filed with thepermission of the Court or it was referred to in the first hearing or in thesecond hearing could only be decided by the Bench which had heard thematter on 23.05.2016 or on 24.08.2016 on which dates the originalapplication was reserved for orders.

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46. We are of the considered view that the review applicationshould have been heard by a Bench headed by Dr. Justice Jawad Rahimwho was admittedly available and in fact continues to be a member ofthe NGT. Therefore, we are constrained to set aside the order passedin Review Application No.35 of 2016 dated 08.01.2018

BIs Demolition the only answer?:

47. The next issue which arises is that what we should do withthe construction. A large number of flats are already occupied and alarge number of persons have paid money for occupying these flats.Learned counsel appearing for those persons who have purchased theCflats urged that the flats should not be demolished otherwise they shallbe put to great monetary loss. As pointed out above now there are 807flats 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. Theproject proponent has already taken money from these persons and alarge number of flats and shops have already been occupied and evenDwhere the remaining flats and shops are not occupied, persons belongingto the middle class have invested their life’s earnings in this project.Keeping in view the interest of these third parties who were not partiesbefore the NGT, we are of the view that in the peculiar facts andcircumstances of the case, demolition is not the answer. This would putEinnocent people at loss. Normally, this Court is loathe to legalize illegalconstructions but in the present case we have no option but to do so.

48. We hasten to clarify that the project proponent cannot bepermitted to build any more flats. What we are permitting him to do is toonly complete construction of 807 flats, 117 shops/offices and culturalFcentre including the club house. We make it clear that he shall not beallowed to build the two buildings in which he was to construct 454tenements, and will obviously have to return the money with interest atthe rate of 9% per annum to the individual(s) who have invested in thesame. There is no equity in favour of these persons since the plan toraise this construction was submitted only after 2014 when the validityGof the earlier EC had already ended. Therefore, though we uphold theorder of the NGT dated 27.09.2016 that demolition is not the answer inthe peculiar facts of the case, we also make it clear that the projectproponent cannot be permitted to build nothing more than 807 flats, 117shops/offices, cultural centre and club house.

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Whether the Original Applicant is entitled to Special Damages:

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Whether the Original Applicant is entitled to Special Damages:

49. On behalf of the original applicant various issues were raisedbefore us which had not been raised before the NGT and find no mentioneither in the original order or even in the order under review. We are notconsidering those issues. It was urged that the project proponent hasreduced the area of Cultural Centre. This averment is not correct aspointed by senior counsel appearing for the Union of India. Thedevelopment plan is not only for the area under the project but covers amuch larger area where more than one builder and projects may beinvolved. It is not the responsibility of only one builder to provide theentire community services and these have to be provided pro rata by alldevelopers of projects in the area. It was also alleged that the builderhad built 3 basements which are illegal. On the other hand it wascontended by the learned senior counsel for the project proponent thatone of the basements has already been blocked and the other twobasements shall also not be put in use and would be completely blockedoff. We make it clear that PMC and SEIAA will ensure that the projectproponent blocks the basements in such a manner that they can neverbe put to any use. Another argument raised by the original applicant wasthat the project proponent had stated that though he would not use anyground water, however it has utilized the ground water and violated thecondition of the EC. Reliance is placed on certain photographs showingwater being pumped. On the other hand on behalf of the project proponentit has been urged that this water was being pumped out from theexcavated area when the building was built and the water level hadrisen. We cannot decide this disputed question of fact in these proceedings.

50. We may also point out that in this case the original applicanthas tried to project the case as if he is filing the case in the public interestand has prayed for certain general directions. He has also claimedspecial damages for himself. The main grievance of the original applicantis with regard to the violation of the EC and according to him theseviolations started in the year 2009. The original applicant had applied fora flat in the project in question and had issued notice to the projectproponent on 21.10.2011 about deficiency in service. This notice wasreplied to on 17.11.2011. Thereafter, the original applicant filed ConsumerComplaint No. 95 of 2012 on 22.02.2012. This complaint was decidedon 20.11.2014. Thereafter, the order of the District Consumer DisputesRedressal Forum was challenged before the State Consumer Redressal A

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ACommission both by the project proponent and original applicant inFebruary, 2015. It appears that thereafter there were complaints andcounter complaints filed by the parties against each other and the projectproponent filed a civil suit for defamation against the original applicanton 02.12.2015 and it was only thereafter on 07.12.2015 an applicationwas filed in the NGT by the original applicant. We are highlighting theseBfacts only to emphasize the fact that this litigation is obviously not aPublic Interest Litigation. Therefore, the claim of the original applicantto award him special damages cannot be accepted.

Quantification of damages:

C51. We need to decide and re-assess the issue of damages sincethe 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 commencedafter issuance of consent to establish dated 20.06.2009 and the EC wouldDbe valid for a period of 5 years from the date of such consent, i.e. upto19.06.2014;

2) The EC dated 04.04.2008 was granted for construction of built uparea 57,658.42 sq.mtrs., whereas admittedly, as of now the constructedbuilt up area is 1,00,002.25 sq. mtrs.. Therefore, there is clear-cut violationEof the terms of the EC;

3) Any construction raised after 19.06.2014 is without any EC especiallysince 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 damagesFshould be assessed on a scientific basis by calculating the damage causedto the environment by the project proponent on the basis of ‘CarbonFootprint’. In the absence of detailed submissions, we find ourselvestotally unequipped to go into this aspect of the matter.

53. In the original application filed by the original applicant beforeGthe NGT, there is no reference to Carbon Footprint. Even when evidencewas initially led, no reference was made to the same. The concept ofCarbon Footprint was introduced by the original applicant only in hisaffidavit dated 18.05.2016. In fact, according to the project proponentthis affidavit was not even filed on 18.05.2016. It appears to us thatHthere is no order of the NGT specifically permitting the original applicant to file such an affidavit. The submission of original applicant is that hewas orally permitted to file the same. These disputed questions wouldhave been only decided by the Original Bench and, therefore, we havealready set aside the order passed in the review application dated08.01.2018.

54. Courts cannot introduce a new concept of assessing andlevying damages unless expert evidence in this behalf is led or there aresome well established principles. We find that no such principles havebeen accepted or established in the present case. When there are nopleadings in this regard we fail to understand how the concept of CarbonFootprint can be introduced after evidence has been closed, at the stageof arguments. We cannot assess the impact in actual terms and, therefore,we can only impose damages or costs on principles which have beenwell settled by law.

55. We may also note that the method to which the originalapplicant referred to is not part of any law, rule or executive instructions.This method is no doubt used to compensate and impose damages onnations but we cannot apply this method while imposing damages on aperson who violates the EC. We may also add that the calculation madeby the original applicant in his affidavit dated 18.05.2016 filed before theNGT are based on assumptions some of which we have not found to becorrect namely – (1) use of ground water; (2) reduction of CulturalCentre space; (3) construction of basements etc..

56. We may make it clear that we are not laying down the lawthat damages cannot be assessed on the basis of Carbon Footprint. In acase where expert evidence in this behalf is led or on the basis of empiricaldata it is established that by applying the principles of Carbon Footprintdamages can be assessed, the Court may, in the facts and circumstancesof the case, rely upon such data but, in the present case, there is no suchreliable material.

57. Having held so we are definitely of the view that the projectproponent who has violated law with impunity cannot be allowed to goscot-free. This Court has in a number of cases awarded 5% of theproject cost as damages. This is the general law. However, in the presentcase we feel that damages should be higher keeping in view the totallyintransigent and unapologetic behaviour of the project proponent. Hehas maneuvered and manipulated officials and authorities. Instead of 12buildings, he has constructed 18; from 552 flats the number of flats has A

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Agone 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 donethis without getting fresh EC. With the increase in the number of flatsthe number of persons, residing therein is bound to increase. This willimpact the amount of water requirement, the amount of parking space,Bthe amount of open area etc.. Therefore, in the present case, we areclearly of the view that the project proponent should be and is directedto pay damages of Rs.100 crores or 10% of the project cost whicheveris more. We also make it clear that while calculating the project cost theentire cost of the land based on the circle rate of the area in the yearC2014 shall be added. The cost of construction shall be calculated on thebasis of the schedule of rates approved by the Public Works Department(PWD) of the State of Maharashtra for the year 2014. In case thePWD of Maharashtra has not approved any such rates then the CentralPublic Works Department rates for similar construction shall be applicable.

We have fixed the base year as 2014 since the original EC expired inD2014 and most of the illegal construction took place after 2014. In additionthereto, if the project proponent has taken advantage of Transfer ofDevelopment Rights (for short ‘TDR’) with reference to this project oris entitled to any TDR, the benefit of the same shall be forfeited and ifhe has already taken the benefit then the same shall either be recoveredEfrom him or be adjusted against its future projects. The project proponentshall also pay a sum of Rs. 5 crores as damages, in addition to the abovefor 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 projectFproponent deposits the amount of damages as directed by us then theproject proponent may approach the appropriate authority for grant ofEC. The authority may impose such conditions for grant of EC as itdeems necessary.

Findings and Directions:

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59. We summarise our findings and directions as follows:

(i) That built up area under the notification of 14.09.2006 meansall constructed area which is not open to the sky;

(ii) Built up area under the notification of 04.04.2011 meansall covered area including basement and service areas;H

(iii) The communication dated 07.07.2017 is totally illegal andaccordingly quashed;

(iv) The original application cannot be treated as a public interestlitigation;

(v) We are not taking note of the allegations levelled againstthe individuals who have not been arrayed as parties;

(vi) That the order dated 27.09.2016 of the NGT is upheld exceptin so far as Direction No. 1 is concerned;

(vii) The order in review application passed by the NGT on08.01.2018 is held to be totally illegal and is accordingly set aside;

(viii) We uphold the original order dated 27.09.2016 holding thatthe construction raised by the project proponent was in violationof the environmental clearance granted to it on 04.04.2008. Weuphold the fine imposed upon the PMC and the direction givento the PMC to take appropriate action against the erring officials.We also uphold the direction given to the Chief Secretary to theState of Maharashtra and in addition, direct that the ChiefSecretary to the State of Maharashtra shall look into the conductof the official holding the post of Principal Secretary(Environment) to the Government of Maharashtra on 27.09.2016and will submit his report to the NGT within three months fromtoday;

(ix) We impose damages of Rs.100 crores or 10% of the projectcost, whichever is higher on the project proponent and in additionthereto, project proponent will pay Rs.5 crores as levied by theNGT in its order dated 27.09.2016;

(x) Project proponent shall not be permitted to raise constructionof two buildings having 454 tenements;

(xi) We direct that the project proponent shall only be permittedto complete construction of a total 807 flats, 117 shops/officesand cultural centre including club house;

(xii) The project proponent will only be permitted to seekenvironmental clearance for completion of the project subject topayment of costs in the aforesaid terms and it may be grantedex post facto environmental clearance in the peculiar facts of A

B

C

DE

F

G

H

Athe case, on such terms and conditions as the environmentalauthority deems fit and proper;

(xiii) The project proponent is granted six months’ time to depositthe amount of damages imposed in terms of direction no. (ix)supra in the Registry of this Court. In case the project proponentBdoes not deposit the amount within six months then all the assetsof the project proponent i.e. M/s. Goel Ganga Developers IndiaPvt. Ltd. as well as its Directors shall be attached and the amountof damages shall be recovered by sale of those assets. It isfurther directed that in case this amount is not deposited withinthe period of six months then the licence/registration/permissionCgranted to M/s. Goel Ganga Developers India Pvt. Ltd. to developany “real estate project” within the meaning of the Real Estate(Regulation and Development) Act, 2016 shall be cancelled andthe project proponent i.e. M/s. Goel Ganga Developers IndiaPvt. Ltd. and its Directors shall not be granted permission toDdevelop any “real estate project” under the Real Estate(Regulation and Development) Act, 2016 without permission ofthis Court.

(xiv) The matter be listed on 22.10.2018 for issuing appropriatedirections as to how the amount of damages are to be utilised; E60. All the appeals are disposed of in the aforesaid terms. Pendingapplication(s) if any, shall also stand disposed of.

Ankit Gyan Appeals disposed of.

F

G

H