2018 Supreme(SC) 799

SUPREME COURT OF INDIA
Madan B. Lokur, Deepak Gupta, JJ.
M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD. – Appellant(s)
Versus
UNION OF INDIA THROUGH SECRETARY MINISTRY OF ENVIRONMENT AND FORESTS & ORS. – Respondent(s)
CIVIL APPEAL NO. 10854 OF 2016 With CIVIL APPEAL NO. 10901 OF 2016 CIVIL APPEAL NO. 5157-5158 OF 2018
Decided On : 10-08-2018

IMPORTANT POINTS
The built up area means all constructed area which is not open to the sky and all covered area including basement and service areas;
The construction raised by the project proponent was in violation of the environmental clearance granted to it on 04.04.2008. Fine imposed upon the PMC and the direction given to the PMC to take appropriate action against the erring officials upheld.
Damages of Rs.100 crores or 10% of the project cost, whichever is higher imposed on the project proponent and in addition thereto, project proponent will pay Rs.5 crores as levied by the NGT in its order dated 27.09.2016;
Project proponent not permitted to raise construction of two buildings having 454 tenements it is only permitted to complete construction of a total 807 flats, 117 shops/offices and cultural centre including club house.

Headnote:(a) Development Control Rules for Pune Municipal Corporation, Pune, 1982 – Rule 2.13 and Rule 2.39 – Built-up Area and Floor Area Ratio (F.A.R.) or Floor Space Index (F.S.I.) – All constructed area, covered and not open to the sky, has to be treated as ‘built up area’ – No exception for non-FSI area. (Para 13)

       (b) Environmental law – Environment clearance (EC) – Grant of – No connection with FSI or non-FSI – EC granted for a particular construction includes both FSI and non-FSI areas – All covered construction, not open to sky, is built up area – EIA Notification dated 14.09.2006 and dated 04.04.2011 – a (Para 14, 15)

       © Environment (Protection) Rules, 1986 – Rule 5(3) – Notification dated 14.09.2006 – Statutory notification issued in terms of Rule 5(3) – first clarification thereto issued on 04.04.2011 – these two notifications could not be nullified by Joint Director through OM dated 07.07.2017 that too being not clarificatory. (Para 18, 19, 21)

       (2017) 9 SCC 499 – Referred

       (d) Environmental law – Environment clearance (EC) dated 20.11.2017 – Given by State Level Environment Impact Assessment Authority (SEIAA) – Not taking into consideration the non-FSI area declaring the project in B2 category for which SEIAA is competent to issue EC – As built up area includes non-FSI area also, the project will fall in B1 category for which SEIAA is not competent to issue EC – Held, EC dated 20.11.2017 is without jurisdiction. (Para 22, 23)

       (e) Administration of justice – Natural justice – Original applicant making allegations against certain officials of PMC – Not naming the officials – Court refraining from commenting on conduct of those officials in their personal capacity as this would amount to condemning a person without giving him an opportunity to be heard – However, NGT was right in concluding that some officials of PMC were espousing the case of the project proponent at the cost of environment – Direction of NGT directing the Chief Secretary to State of Maharashtra to take notice of the conduct of the concerned officers upheld – Further, Chief Secretary directed to file detailed report in respect of the conduct of then Principal Secretary, Department of Environment to the NGT within 3 months for passing appropriate directions in the matter. (Para 25, 26, 27)

       (f) National Green Tribunal Act, 2010 – Section 19(4)(f) r/w Rule 22(2), National Green Tribunal (Practices and Procedure) Rules, 2011 – NGT having power of review akin to civil courts – Therefore principles governing exercise of review jurisdiction before a Civil Court will apply to NGT – Review application ordinarily heard by the Tribunal at the same place of sitting which has passed the order – Review application before NGT ordinarily disposed of by circulation – Order XLVII Rule 5, Civil Procedure Code, 1908 – Review petition should normally be heard by the same Bench which originally decided the matter – Order passed in Review Application No.35 of 2016 dated 08.01.2018 set aside. (Para 30, 33, 38, 46)

       (g) Administration of justice – Judicial propriety and judicial discipline – Review petition by original applicant – Appeal filed by project proponent pending before Supreme Court – When Supreme Court was seized with the matter NGT should not have proceeded to hear the review application – Order XLVII Rule 1, CPC. (Para 39, 40, 41)

       (h) Environmental law – Assessment and levy of damages – Court cannot introduce a new concept of assessing and levying damages without expert evidence – Held, in absence of any pleading, rule or law, concept of Carbon Footprint cannot be introduced after evidence has been closed, at the stage of arguments. (Para 54, 55)

       Facts of the case:

       The original applicant filed an application before the NGT claiming that the project proponent i.e. M/s. Goel Ganga Developers India Pvt. Ltd., had raised construction in violation of the Environmental Clearance granted for the project and also in violation of the various municipal laws. It was prayed that the illegal structures be demolished; the State Level Environment Impact Assessment Authority (SEIAA) and the Maharashtra State Pollution Control Board be directed to initiate appropriate action against the project proponent for violation of the Environment Impact Assessment (EIA) Notification, 2006; the Union of India be directed to take action against the SEIAA; and lastly it was prayed that the project proponent be directed to pay/deposit a heavy amount of compensation in the environment relief fund.

       The NGT allowed the application.

       The project proponent and the Pune Municipal Corporation challenged the said order in Civil Appeals.

       Review application was filed by the original applicant before the NGT. This application was partly allowed

       Thereafter, the project proponent filed I.A. for permission to amend its appeal permitting it to challenge the order passed in review application dated 08.01.2018, which has been allowed.

       Appeal was filed by the original applicant challenging the original order as well as the order passed in review application praying that demolition of the illegal structures be ordered and the compensation be enhanced to Rs.500 crores.

       Finding of the Court:

       The EC dated 20.11.2017 was beyond the authority of SEIAA.

       Project proponent permitted to complete the 807 flats and 117 shops/offices already under construction but not permitted to anything more than that.

       Result: Appeals disposed of. Damages imposed on Project proponent.