SUPREME COURT OF INDIA
T.N. Godavarman Thirumulpad
Vs
Union of India and Others
Writ Petition (Civil) 202 of 1995 I.A.No. 1156 In Wp (C) No. 202 of 1995 With I.A.Nos.1192, 756, 1463, 1501 and 1532 In Wp (C) 202 of 1995
(Arijit Pasayat and S. H. Kapadia, JJ)
17.10.2006
ARIJIT PASAYAT, J.
The present IAs relate to acceptability of the report given by the Expert
Committee relating to alleged violation of the environmental norms by the
respondents.
Background facts in a nutshell are as follows:
The Delhi Development Authority (in short the 'DDA') proposed the development
of International Hotel Complex on 315 hectares of land situated in the Vasant
Kunj area after the same area was identified in the Master Plan for Delhi 2001
for urban use. According to the applicants, the said area under the earlier
Master Plan 1962 was identified as green area but there was a change of user to
urban area under the latter Master Plan i.e. Master Plan 2001. DDA planned to
develop the said area for construction of Hotels, Convention Centres etc.
Initially, by an order dated 13.9.1996 this Court directed inters alia as
follows:
"The proposal of the Delhi Development Authority (DDA) called
International Hotels Complex (Complex on 315 hectares of prime land situated in
South Delhi is before us for consideration. In the affidavit filed by Mr. Arun
Khaisalkar, Commissioner (Planning), (DDA), the details of the development in
respect of the said 315 hectares has been given. It is not disputed that the Master
Plan of Delhi 2001 was amended on June 17, 1995 whereunder out of the total
area of the complex the area assigned for residential purposes was reduced from
100 hectares to 49 hectares and for commercial purposes increased from 8
hectares to 65 hectares. Apart from that 39 hectares have been earmarked for
public and semi-public, 15 hectares for transportation and remaining 147
hectares for recreational purposes.
It is stated in the affidavit that there is an acute shortage of tourist
accommodation in Delhi and as such it is necessary to provide sites for 4/5
Star Hotels, Institutions, Hospital, Shopping Mall etc. It is further stated
that the Complex area is not a part of the Ridge. It is about 2 Km. away from
Southern & South Central Ridge.
We have heard Mr. V.B. Saharya, learned counsel for DDA and also Mr. P.C. Jain,
Consultant, Planner, DDA. We have heard Mr. Mehta, Dr. Rajiv Dhawan and other
learned counsel assisting us in this matter.
Mr. Sunder Subramanian, Member of Citizens for the South Western Lake
Wilderness & Others and of PILSARC, has filed an affidavit pursuant to this
Court's order dated September 4, 1996. It is stated in the affidavit that the
area is topographically a part of the South Ridge which is to South Delhi what
the Central Ridge is to Central Delhi. It is further stated in the affidavit
that the area is lake studded covering over 1000 acre. The affidavit indicates
that the area was kept green under the 1962 Master Plan in the Draft Zonal Plan
of 1993 (ZDP Zone 121993-Z-P/F/93-52) of the DDA 2001 Master Plan. It is
further stated that this area is the natural extension of Sanjay Van a notified
reserve forest and a part of Ridge. Along with the affidavit, various
photographs have been attached to depict the ecology of the area.
This Court in Vellore Citizens Welfare Forum v. Union of India and Ors. 5 has observed that the development and environment
protection must go together. There should be balance between development and
environment protection. It is, therefore, necessary that before the proposed
Complex of the DDA is brought into execution, it should have environment
clearance from the authorities concerned. The whole of the area has to be
surveyed from the point of view of environment protection. In other words, the
environment impact assessment of the area has to be done by the experts. We are
of the view that the authority contemplated by Section 3(3) of the Environment (Protection) Act, 1986 ('the Act') can be the
only appropriate Authority to look into the environment protection side of the
present project or any other project which the DDA or any other Authority may
initiate in future. Needless to say that the City of Delhi is already highly
congested and has been rated by the World Heath Organization as the 4th most
polluted city so far as the air pollution is concerned. It is, therefore,
necessary that the development in the city should have environmental clearance.
We, therefore, direct the Central Government to constitute an Authority under
Section 3(3) of the Act and confer on the said authority all the powers
necessary to deal with the environmental protection issue arising out of the
project in hand or any other project which may in future come under its
consideration. The authority shall he headed by a retired Judge of a High Court
and it may have other members preferably experts in the field of pollution
control and environment protection to be appointed by the Central Government.
The Central Government shall confer on the said Authority the powers to issue
directions under Section 5 of the Act and for taking measures with respect to
the matters referred to in clauses (i), (iii), (iv), (vi), (viii), (ix), (x)
and (xii) of sub-section (2) of Section 3 of the Act. The Central Government
shall constitute the Authority before October 10, 1996. This Authority shall
have the jurisdiction over the National Capital Region as defined under the
National Capital Region Planning Act, 1985.
Needless to say that the authority so constituted shall keep in view the
'Precautionary Principle" and other principles laid down by this Court in
Vellore Citizens Welfare Forum's case (supra). The Authority shall lay down its
own procedure.
We further direct that till the time the Complex is cleared by the Authority so
constituted by the Central Government, there shall be no construction and no
development of any kind in the area by the DDA or by any other authority. The
DDA can, however, clean the area and plant trees if they so wish.
The proceedings initiated on Kuldip Nayar's letter are disposed of."
Subsequently, on an application filed, this Court by an order dated 19.8.1997
held that 92 hectares of land out of the aforesaid 315 hectares of land was a
constraint area and only in respect of the balance 223 hectares of land the
constructions have to abide by the conditions of clearance. Subsequently, a
Writ Petition was filed (W.P.No. 564/2003) which was dismissed by an order
dated 8.3.2004. Pursuant to the directions of this Court the Committee
constituted has given its report. The recommendations made by the Committee are
as follows:
"1. The project site has topographical features similar to that of the
ridge. Various studies, including EIA documents submitted now for obtaining
environmental clearance, establish the environmental value of this area,
particularly as a zone of groundwater recharge. Therefore, DDA should have
exercised adequate environmental precaution based on a sustainable
environmental management approach. There is no evidence that the environmental
impact of the construction of malls was assessed beforehand and that the
development of this area for commercial activities is in accordance with the
Master Plan.
2. DDA's advertisement (Hindu Dec 12, 2003 ) states: "purchaser would be required
to obtain necessary clearance for the project from the EPCA and/or DPCC before
submitting the plans for sanction to the Building Dept of DDA". There is
no confirmation that this requirement was fulfilled by the allottees.
3. DDA has mentioned that FAR for the projects under reference is pegged at
1.0. However, it is seen that for all the buildings proposed in Plot no. 1 to
5, DDA has permitted a higher FAR which works out to 1.25 to 1.29.
4. In hindsight it is evident that the location of large commercial complexes
in this area was environmentally unsound. Now many proponents have constructed
very substantially and really speaking awarding clearances even with conditions
is largely a compromise with de-facto situation. The Expert Committee is of the
opinion that at this stage only damage control is possible by strict
implementation of effective EMP and resource conservation measures in the
project construction and operational stages.
5. As stated earlier in the interim report, the Committee suggests that the
Ministry of Environment & Forests and the Supreme Court may consider
imposing a penalty on the project proponents who commenced construction works
without obtaining environmental clearance in contravention to the Notification
in July 2004.
6. Existing vacant plots (no. 6 and 7) of the shopping mall complex should not
be auctioned by DDA for more malls or commercial activities. They may be kept
open as a fringe of the bio-diversity park or earmarked for development of any
common facilities that may be needed in the area.
7. Treated sewage from Vasant Kunj Sewage Treatment Plant must be utilized as
much as possible for such purposes as water cooled chillers, toilet flushing,
gardening and horticulture and floor washing. This will reduce the requirement
of fresh water.
8. The aforesaid purposes will need tertiary treatment of sewage. Since the
allottees of offices and malls have proposed to carry out entire treatment up
to tertiary level on their own, it should be possible for them to treat the treated
sewage received from Vasant Kunj sewage treatment plant to the required level.
9. While rainwater harvesting should be done, the withdrawal of ground water
should not he permitted in the shopping mall area.
10. For construction, use of ready-mix concrete (RMC) should be made compulsory
so as to reduce movement and storage of materials and generation of dust.
11. Utilization of solar energy must he maximized in all these proposals both
for heating water and generating power to light up corridors and parking.
12. A Monitoring Committee may be constituted for overseeing the project so as
to ensure effective implementation and compliance to environmental
safeguards".
In support of the applications, learned counsel has submitted that it has never
been held by this Court that 92 hectares of land are not a part of the ridge.
On the contrary, the first order itself made the position clear. The
clarification by order dated 19.8.1997 had really expressed no opinion on the
question whether the land was a part of the ridge. A report was given by the
Environmental Pollution (Prevention and Control) Authority (in short 'EPCA')
chaired by Shri Bhure Lal wherein it has been clearly stated that environmental
factors were not in favour of urban development use of land and the entire
parcel of land should be developed as green. Therefore, it is submitted that
there has been clear violation of the norms fixed on 7.7.2004.
Per contra, learned counsel for DDA and the allottees inter alia submitted that
the applicants are trying to re-open an issue which had become final about a
decade back. The order dated 19.8.1997 made the position absolutely clear that
92 hectares of land was constraint area and was not an integral part of Delhi
Ridge. Out of the said 92 hectares of land, only 19 hectares of said land are
sought to be utilized for the purpose of construction. Learned counsel for the
DDA additionally submitted that long back the 92 hectares of land have been
declared constraint area and there has never been any challenge to the
Notification. In a nutshell, DDA and allottees have prayed for dismissal of the
applications.
The first order of this Court which was relied i.e. 13.9.1996 has been quoted
above. It would be appropriate to quote the subsequent orders. They are as
follows:
Order 19.8.1997
"Having heard learned counsel for the parties and the learned
Additional Solicitor General, we are satisfied that this Court's Order dated
13.9.1996 on I.A.No.18 in WP ( C ) No.4677/85 is in effect to govern the
constructions made under the proposal of the Delhi Development Authority (DDA)
called 'The International Hotels Complex' in South Delhi and mention of the
area of 315 hectares in relation to that complex is inadvertent since the DDA's
proposal itself excluded the constraint area described at page 33 of the paper
book (page 13 of the booklet) which is a total of 92 hectares including the
shopping Mall and Hotel site of 25 hectares within which is located the site of
the petitioner's proposed Hotel under construction in an area of 4 hectares. In
other words, the proposal of the DDA called "The International Hotels
Complex" in South Delhi is to be understood as that for the area of 315-92
= 223 hectares as shown in the DDA's proposal itself. This clarification of this
Court's order dated 13.9.1996 has become necessary on account of the fact that
the concerned authorities are construing the order dated 13.9.1996 to operate
also in respect of the aforesaid constraint area of 92 hectares in addition to
some other areas which are even outside the area of 315 hectares. However, it
is made clear that the petitioner and all other similarly situated outside the
223 hectares of the area of the proposal of the DDA are required to abide by
all the conditions of clearance from the environmental authorities including
taking the measure necessary for checking pollution and other requirements of
law.
In view of the manner in which this Court's aforesaid order dated 13.9.1996 is
to be construed, the order of the Authority of 31st January, 1997 and 7th
March, 1997 do not survive.
The Special Leave Petition is disposed of in these terms".
Order dated 8.3.2004
"We are satisfied that the proposed Mall is on the area measuring 92
hectares of land, which has already been excluded by the order of this Court on
19th August, 1997. In that view of the matter, we do not find any merit in this
petition. It is accordingly dismissed. However, this order will not preclude
the petitioner from availing any remedy, which may be available to him under
law."
The order dated 19.8.1997 makes the position clear that 92 hectares of land
were kept out of consideration and in fact it was clearly declared to be a
constraint area. The expression 'constraint area' has its own connotation. As
has been pointed out by learned counsel for the DDA, a Notification in respect
of the land in question has been issued. The said Notification has never been
challenged. The EPCA's report dated 6.10.1999 nowhere indicates that the land
in question was a part of the ridge. Both the EPCA and the Expert Committee's
report under consideration refer to the land as "similar to ridge
area". Significantly, the EPCA in its report has taken note of the fact
that there is no statutory definition of "ridge". That being so, at
this juncture, it would be inappropriate to reopen the whole issue as to
whether the land in question was a constraint area or ridge land. A bare
reading of the order dated 19.8.1997 makes the position clear that this Court
had treated the land as constraint area. It has been emphasized by learned
counsel for the petitioners that the Expert Committee's report is per se
unacceptable because it has focused more on the aspects of regularizing the
unauthorized areas rather than on the consequences flowing from the non
observance of the procedure before undertaking any construction. It is stated
that this Court has taken serious view of unauthorized construction and some
times on the basis of permissions, wrongly granted. Various decisions in this
regard are relied on.
In response, learned counsel for the respondents have stated that their lands
were allotted by the DDA. As per Notification No.SO/60(E) dated 27.1.1994 for
the first time a provision for obtaining environmental clearance by a Central
Government (MoEF) before undertaking any new project listed in Schedule-I to
the Notification was introduced. The Notification did not relate to new
construction projects and as such did not apply to them is the stand of the
respondents. The auction was conducted by DDA. Having undertaken the project,
huge investments have been made and with sanction of building plans they
applied for. In some cases applications were filed before DPCC for obtaining
clearance under the Air and Water Acts. According to them prior to 7.7.2004 no
other environmental clearance was required except clearance as afore-stated.
The auction Notice of DDA dated 12.12.2003 mentions about clearance from EPCA.
According to the respondents, this referred to the draft Notification dated
7.10.2003 which proposed to include new construction projects within the ambit
of the parent Notification dated 27.1.1994. According to them, the amendment by
Notification dated 7.7.2004 postulates post facto clearance contemplated for
new construction projects undertaken.
In some cases the Expert Committee after public hearing has made the
recommendations with certain stipulations. It has been clearly stated that the
project can be recommended for environmental clearance. The confusion arose
because DDA all through gave an impression to the parties participating in
auction that all requisite clearances had been obtained. Had such parties
inkling of an idea that such clearances were not obtained by DDA, they would
not have invested such huge sums of money. The stand that wherever constructions
have been made unauthorisedly demolition is the only option cannot apply to the
present cases, more particularly, when they unlike, where some private
individuals or private limited companies or firms being allotted to have made
contraventions, are corporate bodies and institutions and the question of their
having indulged in any malpractices in getting the approval or sanction does
not arise. Some of the allottees are the National Book Trust, School of
Planning or Architecture, Shri Ram Vithala Sikha Seva Samiti, International
Centre for Alternate Dispute Resolution and Institute for Studies and
Industrial Development. In most of these cases the constructions are already
complete and have become functional.
DDA had also made some constructions at the site in question. That being so, it
is submitted that the recommendations made by the Expert Committee should be
accepted.
Learned counsel for the DDA while adopting the submissions made by the other
respondents submitted that the DDA proceeded on a bona fide impression that all
requisite clearances had been obtained by it. There was no question of it
acting in mala fide manner or irregular manner.
In view of what has been stated above, the MoEF has now to take a decision by
taking the land as constraint area. It is needless to say that even if the land
is held to be constraint area the constructions thereon have to be made after
having the requisite clearance. The MoEF shall take note of the stands
projected by the respondents. We are prima facie satisfied about the bona fides
of the respondents but at the same time it needs no emphasis that DDA should
have been more transparent in ensuring that it was not putting a site for
auction where there was scope for litigation. It had definitely created an
impression that all necessary clearances had been obtained, though it does not
appear to be so. What remains to be decided as to what remedial measures
including imposition of such amounts as costs can be taken.
Let the MoEF take a decision within a period of 2 months from today to avoid
unnecessary delay. The IAs. are accordingly disposed of.