# M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD v. UNION OF INDIA THROUGH SECRETARY MINISTRY OF ENVIRONMENT AND FORESTS & ORS

- **Citation:** [2018] 10 S.C.R. 1005
- **Court:** Supreme Court of India
- **Decided:** 2018-08-10
- **Case number:** Civil Appeal No. 10854 of 2016
- **Bench:** Madan B. Lokur, Deepak Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-goel-ganga-developers-india-pvt-ltd-v-union-of-india-through-secretary-32537
- **Pages:** 34

## Headnote

National Green Tribunal Act, 2010 - s.19(4)(f) - National
Green Tribunal (Practices and Procedure) Rules, 2011 - r.22(2) -
Application for review - Original applicant claimed that the project
proponent had raised construction in violation of the Environmental
Clearance granted for the project and also in violation of the
various municipal laws - NGT directed the project proponent to
pay environment compensation cost - Appeal against the order -
Meanwhile, Project Proponent filed a review application against
the order of the NGT, which was decided by a different Bench -
Original applicant contended that certain arguments raised by him
were not heard by the original Bench - Held: A review petition
should not be heard by any other Bench unless it is impossible or
totally impracticable for earlier Bench to hear the matter - If a
party urges that some of the contentions urged by it were not taken
into consideration then it filed a review application, then the
application should be heard by the same Bench which had originally
heard the matter - According to sub-rule(2) the matter should
ordinarily be heard at the same place of sitting where it was
originally decided - However, this is not a mandatory direction
because sub-rule(2) itself contemplates that the matter shall
ordinarily be heard at the same place - In tribunals like NGT where
members may be transferred from one Bench to another, these issues
could be resolved by resorting to the latest technology and if
necessary the arguments in such cases can be heard by video
conferencing - Thus, the normal rule is that the same Bench should
hear the review application and it should not be disturbed - Besides,
Project Proponent had violated law with impunity by raising
constructions, and by manipulating the officials and authorities -
Supreme Court in number of cases awarded 5% of the project cost
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[2018] 10 S.C.R. 1005
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as damages and this is followed as a general law - However, in the
instant case, project proponent directed to pay damages of Rs.100
crores or 10% of the Project - Code of Civil Procedure, 1908 -
Or.XLVII.
Disposing of the appeals, the Court
HELD: 1. A review petition should normally be heard by
the same Bench which originally decided the matter. A review
petition should not be heard by any other Bench unless it is
impossible or totally impracticable for the earlier Bench to hear
the matter. In a review petition, like in the present case, where
the review petitioner contends that certain arguments raised by
him have not been considered then it is only the judges who
originally heard the matter who can decide whether such point
was urged or not. [Para 33] [1025-C-D]
2. It is well known that parties raise various contentions in
their pleadings or in their evidence. On many occasions when
arguments are heard many of the pleas are not urged. Any judicial
authority including the NGT which is presided over by a judicial
member who may be a retired judge of this Court or of a High
Court is expected to deal with all contentions raised before it.
There is a presumption that judicial authorities must have dealt
with all the contentions raised before them. If a party urges that
some of the contentions urged by it have not been taken into
consideration then it has to file a review application and it is but
obvious that such review application should be heard by the same
Bench which had originally heard the matter. [Para 34] [1025-EF]
3. Sub-rule (3) of Rule 22 of the National Green Tribunal
(Practices and Procedure) Rules, 2011 clearly lays down that a
review application shall be disposed of by circulation. If the review
application is to be disposed of by circulation then there is no
problem in the matter being circulated before the very same
Bench which had earlier heard the matter. This can be done
even at a place which may be different from the original place of
hearing. It is only if the Bench decides

## Text

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M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD.
v.
UNION OF INDIA THROUGH SECRETARY MINISTRY OF
ENVIRONMENT AND FORESTS & ORS.
(Civil Appeal No. 10854 of 2016)
AUGUST 10, 2018
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
National Green Tribunal Act, 2010 - s.19(4)(f) - National
Green Tribunal (Practices and Procedure) Rules, 2011 - r.22(2) -
Application for review - Original applicant claimed that the project
proponent had raised construction in violation of the Environmental
Clearance granted for the project and also in violation of the
various municipal laws - NGT directed the project proponent to
pay environment compensation cost - Appeal against the order -
Meanwhile, Project Proponent filed a review application against
the order of the NGT, which was decided by a different Bench -
Original applicant contended that certain arguments raised by him
were not heard by the original Bench - Held: A review petition
should not be heard by any other Bench unless it is impossible or
totally impracticable for earlier Bench to hear the matter - If a
party urges that some of the contentions urged by it were not taken
into consideration then it filed a review application, then the
application should be heard by the same Bench which had originally
heard the matter - According to sub-rule(2) the matter should
ordinarily be heard at the same place of sitting where it was
originally decided - However, this is not a mandatory direction
because sub-rule(2) itself contemplates that the matter shall
ordinarily be heard at the same place - In tribunals like NGT where
members may be transferred from one Bench to another, these issues
could be resolved by resorting to the latest technology and if
necessary the arguments in such cases can be heard by video
conferencing - Thus, the normal rule is that the same Bench should
hear the review application and it should not be disturbed - Besides,
Project Proponent had violated law with impunity by raising
constructions, and by manipulating the officials and authorities -
Supreme Court in number of cases awarded 5% of the project cost
1005
[2018] 10 S.C.R. 1005
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as damages and this is followed as a general law - However, in the
instant case, project proponent directed to pay damages of Rs.100
crores or 10% of the Project - Code of Civil Procedure, 1908 -
Or.XLVII.
Disposing of the appeals, the Court
HELD: 1. A review petition should normally be heard by
the same Bench which originally decided the matter. A review
petition should not be heard by any other Bench unless it is
impossible or totally impracticable for the earlier Bench to hear
the matter. In a review petition, like in the present case, where
the review petitioner contends that certain arguments raised by
him have not been considered then it is only the judges who
originally heard the matter who can decide whether such point
was urged or not. [Para 33] [1025-C-D]
2. It is well known that parties raise various contentions in
their pleadings or in their evidence. On many occasions when
arguments are heard many of the pleas are not urged. Any judicial
authority including the NGT which is presided over by a judicial
member who may be a retired judge of this Court or of a High
Court is expected to deal with all contentions raised before it.
There is a presumption that judicial authorities must have dealt
with all the contentions raised before them. If a party urges that
some of the contentions urged by it have not been taken into
consideration then it has to file a review application and it is but
obvious that such review application should be heard by the same
Bench which had originally heard the matter. [Para 34] [1025-EF]
3. Sub-rule (3) of Rule 22 of the National Green Tribunal
(Practices and Procedure) Rules, 2011 clearly lays down that a
review application shall be disposed of by circulation. If the review
application is to be disposed of by circulation then there is no
problem in the matter being circulated before the very same
Bench which had earlier heard the matter. This can be done
even at a place which may be different from the original place of
hearing. It is only if the Bench decides to give oral hearing in
the review application and notice is issued to the opposite party
that sub-rule(2) of Rule 22 will come into operation. According
to sub-rule(2) the matter should ordinarily be heard at the same
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place of sitting where it was originally decided. However, this is
not a mandatory direction because sub-rule(2) itself contemplates
that the matter shall 'ordinarily' be heard at the same place. In
tribunals like the NGT where members may be transferred from
one Bench to another or may be attending a Bench on circuit
then problems can sometimes arise. These issues can be easily
resolved by resorting to the latest technology and if necessary
the arguments in such cases can be heard by video conferencing.
The normal rule that the same Bench should hear the review
application should not be disturbed unless it is virtually impossible
for the original Bench to hear the matter or the members of the
Bench themselves opt not to hear the matter. [Para 35] [1025G-H; 1026-A-C]
4. The power of review is not like appellate power. It is to
be exercised only when there is an error apparent on the face of
the record. Therefore, judicial discipline requires that a review
application should be heard by the same Bench. Otherwise, it
will become an intra court appeal to another Bench before the
same court or tribunal. This would totally undermine judicial
discipline and judicial consistency. [Para 36] [1026-D-E]
5. In terms of Order XLVII Rule 5 of CPC, a review should
normally be heard by the same Bench which passed the original
order. The reasons are:
1) The judges who heard the matter originally have applied their
mind and would know best the facts and legal position;
2) They will be in the best position to appreciate the matter in
issue when a review is filed;
3) If the matter goes before another Bench that Bench will have
to virtually hear the matter afresh;
4) Most importantly, when the matter goes to a new Bench the
members of the new Bench may go by their own perspective and
philosophy which may be totally different to that of the Bench
which originally heard the matter.
Further, judicial discipline, judicial traditions and consistency in
pronouncements require that the Bench which heard the matter
originally should hear the review petition unless it is virtually
M/S. GOEL GANGA DEVELOPERS v. U.O.I.THR. SECY.
MINISTRY OF ENVIRONMENT
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impractical for the original Bench to hear the matter, or where
the 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.
Common Cause v. Union of India (2017) 9 SCC 499;
Northern India Caterers India Ltd. v. Lt. Governor Of
Delhi (1980) 2 SCC 167 : [1980] 2 SCR 650 -
referred to.
Case Law Reference
(2017) 9 SCC 499
referred to
Para 20
[1980] 2 SCR 650
referred to
Para 36
[2011] 11 SCR 870
relied on
Para 37
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10854
of 2016
From the Judgment and Order dated 27.09.2016 of the National
Green Tribunal (Western Zone) Bench, Pune in Application No. 184 of
2015 (WZ).
WITH
C.A. Nos. 10901/2016, 5157-5158/2018
A.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. Kriti
Sondhi, Shriram P. Pingle, Ms. Rashmi Dhongde, Nitin Lonkar, Ms. Sonali
Suryavanshi, Nilesh Bhandari, Ashok Jain, Gurmeet Singh Makker, Divya
Prakash 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, Shriram
P. Pingle, Ms. Rashmi Dhongde, Nitin Lonkar, Ms. Sonali Suryavanshi,
Nilesh Bhandari, Ashok Jain, Kunal Cheema, Nishant Ramakantrao
Katneshwarkar, Ninad Laud, Kush Chaturvedi, Ms. Anshula Grover,
Anjuman Tripathy, Somay Kapoor, Ms. Priyashree Sharma, Parth Singh
Chaudhry, 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 of
appeal in Civil Appeal No.10854 of 2016 allowed.
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2. These matters are being decided by one judgment since they
all arise out of one original application filed by Shri Tanaji Balasaheb
Gambhire (hereinafter referred to as 'the original applicant') before the
National Green Tribunal ('the NGT' for short) being Application No.
184 of 2015.
3. The original applicant filed an application before the NGT
claiming that the project proponent i.e. M/s. Goel Ganga Developers
India Pvt. Ltd., had raised construction in violation of the Environmental
Clearance ('EC' for short) granted for the project and also in violation
of the various municipal laws. It was prayed that the illegal structures
be demolished; the State Level Environment Impact Assessment
Authority (SEIAA) and the Maharashtra State Pollution Control Board
be directed to initiate appropriate action against the project proponent
for violation of the Environment Impact Assessment (EIA) Notification,
2006; the Union of India be directed to take action against the SEIAA;
and lastly it was prayed that the project proponent be directed to pay/
deposit a heavy amount of compensation in the environment relief fund.
The NGT vide its order dated 27.09.2016 allowed the application in the
following terms:
"54. For the aforesaid reasons, the Applicant succeeds in his
legal pursuit to challenge the noncompliance of EC conditions by
the Respondent-9 and obtain certain directions. Hence the
Application is allowed and we issue following directions:
1. The Respondent No.9-PP shall pay environmental
compensation cost of Rs. 100 crores or 5% (Five percent) of
the total cost of project to be assessed by SEAC whichever is
less for restoration and restitution of environment damages
and degradation caused by the project proponent by carrying
out the construction activities without the necessary prior
environmental clearance within a period of one month. In
addition to this, it shall also pay a sum of Rs. 5 crores for
contravening mandatory provision of several Environmental
Laws in carrying out the construction activities in addition to
and exceeding limit of the available environment clearance and
for not obtaining the consent from the Board.
2. In view of our finding that there has been manifest, deliberate
or otherwise suppression of facts of illegality in the project
activity of Respondent No. 9-PP by the officer of PMC, we
M/S. GOEL GANGA DEVELOPERS v. U.O.I.THR. SECY.
MINISTRY OF ENVIRONMENT [DEEPAK GUPTA, J.]
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impose fine of Rs. 5 Lakhs upon the PMC and direct
Commissioner PMC to take appropriate action against the
erring officers. The amount of Rs. 5 Lakh shall be paid within
one month.
3. We direct the Chief Secretary, State of Maharashtra and the
competent authority to take notice of the conduct of the officers
concerned who have misled the Department of Environment
in the matter relating to interpretation of F.S.I and BUA in
terms of which order dated 31st May, 2016 has been issued in
particular the Principal Secretary, Department of Environment
who has authored the order dated 31st May, 2016.
4. PMC, DoE and SEIAA are directed to pay cost of Rs. 1 lakh
each to the Applicant within 4 weeks."
4. Aggrieved by the aforesaid order of the NGT, the project
proponent filed Civil Appeal No. 10854 of 2016. The Pune Municipal
Corporation ('PMC' for short) also challenged the said order in so far as
it adversely affects the PMC by filing Civil Appeal No. 10901 of 2016.
5. Review application being Application No. 35 of 2016 was filed
by the original applicant before the NGT. This application was partly
allowed on 08.01.2018 and direction No. 1 in the original order dated
27.09.2016 was modified and substituted as under:
"1. The Respondent No.9-PP shall pay environmental
compensation cost of Rs.190 crores or 5% (Five percent) of the
total cost of project to be assessed by SEAC, whichever is more,
for restoration and restitution of environment damage and
degradation caused by the project proponent by carrying out the
construction activities without the necessary prior environmental
clearance within a period of one month. In addition to this, it
shall also pay a sum of Rs. 5 crores for contravening mandatory
provision of several Environment Laws in carrying out the
construction activities in addition to and exceeding limit of the
available environment clearance and for not obtaining the consent
from the Board."
6. Thereafter, the project proponent filed I.A. No. 8000 of 2018
for permission to amend its appeal permitting it to challenge the order
passed 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 original
applicant challenging the original order dated 27.09.2016 as well as the
order dated 08.01.2018 passed in review application praying that
demolition of the illegal structures be ordered and the compensation be
enhanced to Rs.500 crores.
The Factual Matrix
8. The facts briefly stated are that the project proponent purchased
79,100 sq. mtrs. or 7.91 hectare of land comprised in six Survey Nos.
35, 36, 37, 38 39 and 40 in Vadgaon, Pune. These survey numbers were
amalgamated in accordance with the rules and the plot became one plot
of 79,100 sq. mtrs. From the documents placed on record it is apparent
that as per the Development Control Plan for the city of Pune, 3 roads
of the width of 36 mtrs., 30 mtrs. and 18 mtrs. bisected this plot into two
which for the sake of convenience were referred to as Plot No. 1 and
Plot No. 2. As per the Development Plan, there are certain statutory
reservations in addition to the roads and some land has to be left out or
reserved for schools, cultural centres, open areas etc.. The remaining
area is referred to as the 'Balance Plot Area' which in this case works
out to 46,993.79 sq. mtrs.. Out of this 'Balance Plot Area' 15% is to be
reserved for amenity space and another 10% area is to be compulsorily
left out as open space leaving 'Net Plot Area' of 41,455.21 sq. mtrs..
Prima facie these calculations do not appear to be correct. However,
this will not impact the merits of the case. Be that as it may, the undisputed
fact is that FSI has to be calculated on the 'Net Plot Area'. We may, at
this stage, point out that the aforesaid figures are based on the written
submissions submitted on behalf of the Union of India by the learned
Additional Solicitor General and these figures have not been disputed
before us.
9. On 12.03.2007, the project proponent applied for sanction of
lay out and building proposal plan on an area of 15,141.70 sq. mtrs.,
originally depicted as Plot No. 3 and the sanctioned FSI was 15313.16
sq. mtrs.. Thereafter, on 05.09.2007, revised lay out plan was submitted
for an area measuring 28,233.23 sq. mtrs. and the sanctioned FSI was
39,526.54 sq. mtrs.. The project proponent applied for EC for the project
and in the proposal dated 27.06.2007, he had shown that he would be
erecting/constructing 12 buildings having 552 flats, 50 shops and 34
offices. The 12 buildings were to have stilts with basement and 11
floors. The total built up area was indicated as 57,658.42 sq. mtrs.. The
M/S. GOEL GANGA DEVELOPERS v. U.O.I.THR. SECY.
MINISTRY OF ENVIRONMENT [DEEPAK GUPTA, J.]
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EC was granted to the project proponent on 04.04.2008. Paras 2 and 3
of the communication granting EC read as under:
"2. The project proponent is proposing for construction of group
housing project at S.No.35 to 40, village Vadgaon Budruk, Singhad
Road, Pune, Maharashtra at a cost of Rs. 10,737.14 lakh. The
project involves construction of 12 Building with Stilt, Basement
plus 11 floors for 552 flats, 50 shops and 34 offices. The total
plot area is 79,100.00 sq. m. Total built up area as indicated is
57,658.42 sq. m. Total water requirement will be 745 KLD and
400 KLD of waste water will be generated from the buildings
which will be treated in sewage treatment plant. The treated
waste water will be used for landscaping, DG set cooling and
Horticulture purpose. The solid waste generated from the
buildings will be 1500 Kg/day and disposed as per the MSW
Rules, 2000. The parking space is proposed for parking of 1072
cars.
"3.
The EAC after due consideration of the relevant
documents submitted by the project proponent and additional
clarifications furnished in response to its observations have
recommended the grant of environmental clearance for the project
mentioned above subject to compliance with the EMP and other
stipulated conditions. Accordingly, the Ministry hereby accords
necessary environmental clearance for the project under category
8 (a) of EIA Notification 2006 subject to the strict compliance
with the specific and general conditions mentioned below:"
10. The EC was granted subject to certain conditions. We may
refer to certain relevant conditions which read as under:
 "PART A- SPECIFIC CONDITIONS
I. Construction Phase
xxx
xxx
xxx
v. sPermission to draw and use ground water for construction
work shall be obtained from competent authority prior to
construction/operation of the project."
 "5. In the case of any change(s) in the scope of the project, the
project would require a fresh appraisal by this Ministry."
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Concept of 'Built up Area' under the notification dated
14.09.2006:
11. It is not disputed that the EC was granted for built up area of
57,658.42 sq. mtrs.. The main dispute is with regard to the interpretation
of the term 'built-up area'. The case of the project proponent is that the
term 'built up area' is synonymous with 'Floor Space Index' or FSI and
that the constructed area, which is exempted from FSI area or is a nonFSI area is not a part of the 'built up area'. On the other hand, the
submission made by the original applicant as well as by the learned
Additional Solicitor General appearing for the Ministry of Environment,
Forest and Climate Change is that the built up area will cover all
constructed area and the concept of FSI area or non-FSI area is totally
alien to environmental laws. Learned senior counsel for the project
proponent has drawn our attention to the Development Control Rules
for Pune Municipal Corporation, Pune, 1982 ('DCR' for short). Under
the DCR, no building can be constructed without grant of building
permission/commencement certificate by the Pune Municipal
Corporation. There is a detailed procedure for obtaining the building
permission/commencement certificate wherein lay out plans, building
plans etc. have to be submitted. The main emphasis was on Rule 2.13
of the DCR, which defines built up area as follows:-
"2.13 Built-up Area - Area covered immediately above the
plinth level by the building or external area of any upper floor
whichever is more excepting the areas covered by Rule No.
15.4.2."
Rule 2.39 defines Floor Area Ratio as follows:-
"2.39 Floor Area Ratio (F.A.R.) - The quotient obtained by
dividing the total covered area (plinth area) on all floors excluding
exempted areas as given in Rule No. 15.4.2 by the area of the
plot.
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.)"
M/S. GOEL GANGA DEVELOPERS v. U.O.I.THR. SECY.
MINISTRY OF ENVIRONMENT [DEEPAK GUPTA, J.]
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Strong reliance is placed on Rule 15.4.2 which reads as under:-
"15.4.2 In addition to Rule No. 15.4.1.1 (a) (b) and (c) and 17.7.3
the following shall not be included in covered area or F.A.R. and
Built-up Area calculations."
(a)
A basement or cellar space under a building constructed on
stilts and used as parking space, and air-conditioning plant
rooms used as accessory to the principal use;
(b)
Electric cabin or substation, watchman's booth of maximum
size of 1.6 sq.m. with minimum width or diameter of 1.2 m,
pump house, garage shaft, space required for location of
fire hydrants, electric fittings and water tanks;
(c)
Projections as specifically exempted under these rules.
(d)
Stair case room and/or lift rooms above the top most storey,
architectural features, chimneys, elevated tanks of
dimensions as permissible under these rules.
Note:The shaft provided for lift shall be taken for covered area
calculations only on one floor upto the minimum required
as per these rules.
(e)
One room admeasuring 2m x 3m on the ground floor of cooperative housing societies or apartment owners/cooperative societies buildings and other multistoreyed building
as office-cum-letter box room.
(f)
Rockery, well and well structures, plant, nursery, waterpool, swimming pool, (if uncovered) platform round a tree,
tank fountain, bench, chabutra with open top and unenclosed
sides by walls, ramps, compound wall, gate, slide, swing,
overhead water tank on top buildings;
(g)
Deleted.
(h)
Sanitary block subject to provision of rules no. 15.4.1 (a)
and Built-up area not more than 4 sq. m."
12. The contention of learned senior counsel appearing for the
project proponent is that while calculating the built up area the
constructions mentioned in Rules 15.4.1.1 (a), (b) and (c) and Rule 17.7.3
in addition to the areas specifically exempted under Rule 15.4.2 are to
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be excluded. He submits that if the built up area is calculated in
accordance with the DCR then the project proponent has till date not
constructed the built up area of 57,658.42 sq. mtrs., which it was permitted
to construct under the EC granted to it on 04.04.2008. On the other
hand, the stand of the Union of India and the original applicant is that
built up area means all area which is covered regardless of the area
being FSI or non FSI in terms of the EIA Notification of 2006. The
Building/Construction projects are covered by Item No. 8 of the Schedule
to the EIA Notification dated 14.09.2006. Construction of a project
which is covered under the schedule can be commenced only after
obtaining EC in terms of Para 2 of the said notification. The schedule
itself categorises the various projects and activities into two categories
being 'Category A' and 'Category B'. 'Category A' projects require
clearance by the Central Government in the Ministry of Environment,
Forest and Climate Change on the recommendation of the Expert
Appraisal Committee to be constituted by the Central Government
whereas those activities which form 'Category B' of the schedule
including modernization and expansion of such projects require EC from
the State/Union Territory Environment Impact Assessment Authority
(SEIAA) and such authority is required to base its decision on the
recommendation of the State/Union Territory Level Expert Appraisal
Committee (SEAC). There is further division of 'Category B' into B1
and B2. B1 projects require Environmental Impact Assessment (EIA)
report to be prepared and scoping to be done whereas B2 projects do
not require any Environmental Impact Assessment report. Item No. 8
of the Schedule, with which we are concerned, reads as follows:
(1)
(2)
(3)
(4)
(5)
8
Building/Construction
projects/Area
Development projects and Townships
8(a)
Building and
Construction
projects

>20000
sq.
mtrs.
And
<1,50,000 sq.
mtrs. Of builtup area#
#(built up area for
covered
construction; in the
case of facilities
open to the sky, it
will be the activity
area)
8(b)
Townships
and
Area
Developmen
t projects

Covering an
area >50 ha
and or built
up
area
>1,50,000 sq.
mtrs. ++
++All
projects
under
Item 8(b)
shall be appraised
as Category B1.
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13. From a bare perusal of the two hash tags (#) in Column 4 and
5 of Item 8(a), it is apparent that what is shown under Column 5 is
actually a continuation of Column 4 and basically it describes or defines
'built up area' to mean covered construction and if the facilities are open
to the sky, it will be taken to be the activity area. This by itself clearly
shows that under the notification of 2006, all constructed area, which is
covered and not open to the sky has to be treated as 'built up area'.
There is no exception for non-FSI area.
14. Indeed, the concept of FSI or non-FSI has no concern or
connection with grant of EC. The same may be relevant for the purposes
of building plans under municipal laws and regulations but it has no linkage
or connectivity with the grant of EC. When EC is to be granted, the
authority which has to grant such clearance is only required to ensure
that the project does not violate environmental norms. While projects
and activities, as mentioned in the notification, may be allowed to go on,
the authority while granting permission should ensure that the adverse
impact on the environment is kept to the minimum. Therefore, the authority
granting EC may lay down conditions which the project proponent must
comply with. While doing so, such authority is not concerned whether
the area to be constructed is FSI area or non-FSI area. Both will have
an equally deleterious effect on the environment. Construction implies
usage of a lot of materials like sand, gravel, steel, glass, marble etc., all
of which will impact the environment. Merely because under the municipal
laws some of this construction is excluded while calculating the FSI is
no ground to exclude it while granting the EC. Therefore, when EC is
granted for a particular construction it includes both FSI and non-FSI
areas. As far as environmental laws are concerned, all covered
construction, which is not open to the sky is to be treated as built up area
in terms of the EIA Notification dated 14.09.2006.
Notification of 04.04.2011
15. Our attention has been drawn to the notification dated
04.04.2011 issued by the Ministry of Environment and Forests. By means
of this notification, the words of Column 5 against Item 8(a) have been
replaced and substituted as under:
"The built up area for the purpose of this Notification is defined
as "the built up or covered area on all the floors put together
including basement(s) and other service areas, which are
proposed in the building/construction projects"."
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This notification clearly defines built up area as all constructed area
including basement and service areas without any exception.
16. Learned senior counsel appearing for the project proponent
has submitted that this notification is only prospective in nature and,
therefore, will not affect the notification of 2006. On the other hand, it
has been submitted by the original applicant that this is only a clarificatory
notification and as such it will come into force with effect from 2006. In
our opinion, it is not at all necessary to decide whether this notification is
clarificatory or is in substitution of the original notification of 2006. We
say this because as held by us above, there is no ambiguity with regard
to the definition of 'built up area' even under the notification of 2006 and
it covers all constructed area not open to the sky. The notification of
2011 only provides that the built up area or covered area shall be the
area of all floors put together including basement(s) and other service
areas. We may again re-emphasize that this definition also is in
consonance with the concept of grant of EC for construction as explained
above and it is obvious that the concept of FSI or non-FSI area is alien to
environmental laws.
Clarification dated 07.07.2017
17.Strong reliance has been placed by the project proponent on
the office memorandum dated 07.07.2017 issued by Dr. Ashish Kumar,
Joint Director, Ministry of Environment, Forest and Climate Change.
The said office memorandum reads as follows:-
F.No. 22-35/2017-IA.III
Government of India
Ministry of Environment, Forest and Climate Change
(Impact Assessment Division)
******
Indira Paryavaran Bhawan
Jor Bag Road, Aliganj,
New Delhi-110 003
Dated 7th July, 2017
OFFICE MEMORANDUM
Sub: Clarification on the date of applicability of
notification S.O.(E) 695 dated 04.04.2011 issued by
MoEF & CC defining 'Built Up Area' of the project
M/S. GOEL GANGA DEVELOPERS v. U.O.I.THR. SECY.
MINISTRY OF ENVIRONMENT [DEEPAK GUPTA, J.]
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 The Ministry is in receipt of a reference dated 03.04.2017
from Confederation of Real Estate Developers Association of
India (CREDAI) seeking clarification on above mentioned
subject. The CREDAI has requested that the definition of Built
Up Area (BUA) given vide notification S.O.695(E) dated
04.04.2011 should have prospective effect.
2. The matter has been examined in the Ministry. The BUA
defined in the notification S.O. 1533 (E) dated 14th September,
2006 mentions at Item 8 (a) columns 4 and 5 "built up area for
covered construction, in the case of facilities open to sky, it will
be the activity area".
3. The Ministry has further defined BUA vide its notification
S.O.695 (E) dated 04.04.2011 which reads as, "the built up or
covered area on all the floors put together including its basement
and other service areas, which are proposed in the building or
construction project."
4. The definition provided in the Ministry's notification will have
its effect from the prospective date of the notification only. The
projects which are not covered in the period of above notifications
should be assessed as per the definition of built up area provided
in the building bye-laws or Development Control Regulation
(DCR) of the local authorities in the States.
5. This issues with approval of Competent Authority.
 Sd/-
(Dr. Ashish Kumar)
Joint Director
Ph:011-24695474
Email:ashish.k@nic.in
All States/UTs/SIEAAs/MoEF & CC Divisions
It is urged on the basis of the aforesaid memorandum that prior to the
notification dated 04.04.2011, the built up area had to be calculated and
assessed as per the building bye-laws or the Development Control
Regulations of the local authorities in the States. On behalf of the original
applicant it has been urged that this memorandum is meaningless and
that it has been issued when the matter was pending before the NGT, at
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the instance of one of the Directors of the project proponent, Shri Atul
Goel, who was Joint Secretary of Confederation of Real Estate
Developers Association of India (CREDAI), Pune.
18. Without going into this aspect of the matter, we are clearly of
the view that such an office memorandum could not and should not have
been issued. The notification dated 14.09.2006 is a statutory notification
issued in terms of Rule 5(3) of the Environment (Protection) Rules, 1986
which provides that before such a notification is issued the Central
Government has to give notice of its intention of issuing a notification
and objections to the same are invited. No doubt the Central Government
is empowered in public interest to dispense with the requirement of notice
but this obviously has to be done in exceptional cases. The notification
dated 14.09.2006 was issued by the Central Government and published
in the gazette after inviting objections from the public. The first
clarification with regard to this notification was issued on 04.04.2011 to
which we have adverted above. These two decisions of the Central
Government which were notified as per the provisions of law could not
have been set at naught by the Joint Director even if it was issued with
the approval of a higher authority. We are of the view that since such
decision has not been notified in the gazette the statutory notification
dated 14.09.2006 and its subsequent clarification dated 04.04.2011 could
not have been virtually set aside by this office memorandum.
19. We are also of the view that the so called office memorandum
is not at all clarificatory in nature. As held by us above the notification of
2006 with regard to 'built up area' was absolutely clear and needed no
clarification. We fail to understand how the concept of built up area as
understood in the building bye-laws or DCR could be introduced into the
notification of 2006 by this office memorandum which virtually made
the notification of 2006 totally redundant. Therefore, we quash the office
memorandum dated 07.07.2017.
20. This is not the first time that we have noticed such clarificatory
communications being issued by the officials of the Ministry of
Environment, Forest and Climate Change, which virtually have the effect
of nullifying the statutory provisions and notifications. We have adverted
to some of these communications in our judgment in Common Cause
vs. Union of India1. We expect the officials of the Ministry of
1 (2017) 9 SCC 499
M/S. GOEL GANGA DEVELOPERS v. U.O.I.THR. SECY.
MINISTRY OF ENVIRONMENT [DEEPAK GUPTA, J.]
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Environment, Forest and Climate Change to take a stand which prevents
the environment and ecology from being damaged, rather than issuing
clarifications which actually help the project proponents to flout the law
and harm the environment.
21. In view of the above, we are clearly of the view that the EC
granted to the project proponent on 04.04.2008 was for constructing a
total built up area of 57,658.42 sq.mtrs. and this would include all covered
construction not open to the sky. No artificial division on the basis of
FSI and non-FSI area can be made. Therefore, the NGT was fully
justified in coming to the conclusion that the construction raised by the
project proponent was in total violation of the EC granted to it.
Environmental Clearance dated 20.11.2017
22. The project proponent has drawn our attention to the EC for
expansion of the project in question granted to it by the State Level
Environment Impact Assessment Authority (SEIAA) on 20.11.2017.
We may note that this clearance indicates that the existing construction
comprises of 738 flats and 115 shops which have been completed, 69
flats and 2 shops which are under construction, meaning thereby that
807 flats and 117 shops are already in existence and in addition thereto
454 more flats and cultural centre are sought to be constructed. This
will take the total number of flats to 1261 and number of shops to 117.
We may also notice that the SEIAA has laid down general conditions for
pre-construction phase and the first condition is as follows :-
"(1)
This environmental clearance (EC) is issued for total
built up area of 147219.45 m2 as approved by local planning
authority. It is noted that the total proposed construction area is
147219.45 m2 which includes the area of previous EC (dated
04.04.2008) 57,658.42 m2 and the proposed expansion area of
89,561.03 sq.m. However the above area of 147219.45 sq.m. is
notional as the NON FSI area component of the previous EC is
not included in 1,47,219.45 m2. After considering the NON FSI
area of the previous EC the total built up area becomes
1,81,230.94 m2. SEIAA has also taken note of the clarification
issued by MOEF and CC vide office memorandum dated 7th
July, 2017, stating the definition of built up area will be assessed
as per the building bye-laws or DCR of the local authorities in
the states."
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The aforementioned condition itself clearly shows that the non-FSI area
constructed by the project proponent under first EC of 04.04.2008 has
not been taken into consideration. The project proponent has raised
construction in Plot No. 1 of an FSI area measuring 48,424.66 sq. mtrs.,
and non-FSI area measuring 46,088.47 sq. mtrs.. Therefore, the total
construction raised in Plot No. 1 is 94,513.13 sq. mtrs.. In Plot No. 2 the
construction raised on an FSI area is 630.55 sq. mtrs. and on the nonFSI area is 4,858.57 sq. mtrs. and, therefore, the total construction already
raised in Plot No. 2 is 5,489.12 sq. mtrs.. The total construction raised
by the project proponent is 1,00,002.25 sq. mtrs. against the built up area
of 57,658.42 sq. mtrs. mentioned in the EC of 04.04.2008. This could
not have been ignored by the SEIAA.
23. In case the total construction raised by the project proponent
is taken as 1,00,002.25 sq. mtrs. and if the area of the proposed
construction is added then the project will fall in B1 category and, therefore,
the SEIAA had no authority to grant EC by treating the project as
falling under Category B2. Furthermore, the EC dated 20.11.2017 is
also illegal as the same has been granted on the presumption of the
order dated 31.05.2016 passed by the Principal Secretary, Environment
Department, State of Maharashtra holding that the construction of 18
buildings instead of 12 buildings is permissible. The EC completely lost
sight of the fact that the order dated 31.05.2016 was quashed and set
aside by the NGT in its order dated 27.09.2016. We may note that the
official who passed the order on 31.05.2016 was the same official, who
held the office of Member Secretary of SEIAA, which granted
environmental clearance on 20.11.2017. Therefore, the EC dated
20.11.2017 was beyond the authority of SEIAA and was granted under
a totally false assumption and the same is therefore quashed and set
aside.
Allegations made by the original applicant against various officials
24. The NGT in its order dated 27.09.2016, has found that there
was suppression of facts by the officers of PMC. The NGT also directed
the Chief Secretary to the State of Maharashtra to take notice of the
conduct of the officers who were misleading the Department of
Environment. Costs were imposed on the PMC, Department of
Environment and the SEIAA. This has been challenged before us by
the PMC.
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MINISTRY OF ENVIRONMENT [DEEPAK GUPTA, J.]
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25. The original applicant both in his original application filed before
the NGT and in appeal filed before us as well as in other proceedings
has made serious allegations against individual officers of the PMC as
well as the SEIAA and specially the Principal Secretary, Environment
Department, Govt. of Maharashtra. However, for reasons best known
to the original applicant none of these individuals has been made a party
in personal capacity in these proceedings. The law is well settled that
no person can be condemned unheard. It would, therefore, not be fair
on our part, to deal with allegations made against individuals who are not
parties to the petition and who have had no chance to reply to the
allegations levelled against them. Therefore, we refrain from commenting
on the conduct of the officials in their individual capacity.
26. However, as far as their official capacity is concerned, we
are of the view that the NGT was fully justified in coming to the conclusion
that certain officials of PMC were going out of their way to help the
project proponent and we, therefore, uphold the directions given by the
NGT in its order dated 27.09.2016 in this regard. In view of what we
have discussed above, it is more than apparent that despite notifications
of 2006 and 2011 being clear and unambiguous, the officials of PMC
have given an interpretation which was tailor-made to suit the project
proponent. This was being done even before the clarification of
07.07.2017 was issued.