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Supreme Court of India
Wonder Projects Development Pvt. … vs Union Of India on 11 August, 2020Author: Hon’Ble The Justice
Bench: Hon’Ble The Justice, A.S. Bopanna, V. Ramasubramanian
1
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1713 OF 2020
Wonder Projects Development Pvt. Ltd.
& Anr. ..Appellant(s)
Versus
Union of India & Ors. ..Respondent(s)
JUDGMENT
1. The appellants are before this Court claiming to be
aggrieved by the order dated 03.02.2020 passed by the
National Green Tribunal, Principal Bench, New Delhi (‘NGT’
for short) in Appeal No. 54/2018. The appellants herein
were arrayed as respondent Nos. 11 and 12 in the appeal
before the NGT. By the order impugned herein, the NGT
has set aside the Environmental Clearance (‘EC’ for short)
Signature Not Verified
issued by the State Environment Impact Assessment
Digitally signed by
DEEPAK SINGH
Date: 2020.08.11
16:33:02 IST
Reason:
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Authority (‘SEIAA’ for short), Karnataka, in favour of the
appellants through its order dated 10.01.2018.
2. The brief facts are that the appellants herein are
undertaking the construction of New High Rise Residential
Building. The project is being undertaken in Survey
Nos.61/2, 62 and 63/2 of Kasavanahalli Village, Varthur
Hobli, Bengaluru East Taluk, Bengaluru District. The
construction is proposed on a plot area of 50,382.91 sq. m.
with total built up area of 1,28,193.9 sq.m. In respect of the
said project the appellants had sought for issue of EC from
the SEIAA, Karnataka which is the Competent Authority in
that regard. The SEIAA having considered the project report
of the appellants has granted the EC through its order dated
10.01.2018. The respondent No.2 herein being aggrieved
that the construction being undertaken by the appellants
herein is in the buffer zone of the Kaikondarahalli Lake,
apart from being on the primary and secondary Rajkaluve
and, therefore, the area being ecofragile had assailed the
EC granted in favour of the appellants by filing the appeal
before the NGT. The appellants herein had appeared and
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filed their objection statements denying the allegations
made in the appeal. In addition to the appellants being
respondents in the said appeal, the Bruhat Bengaluru
Mahangara Palike (‘BBMP’ for short) within whose
jurisdiction the proposed project is being undertaken was
also one of the respondents in the appeal. The BBMP had
filed a detailed reply dated 05.09.2019 and had in fact
contended that the project is illegal and they have also
issued the ‘stop work’ notice to the project proponent on
13.07.2018 since there is violation of these Zoning
Regulation of the Revised Master Plan – 2015.
3. Based on the pleadings since a factual determination
was required to be made by the NGT, the NGT also
constituted a Joint Committee comprising of the Central
Pollution Control Board (‘CPCB’ for short), SEIAA,
Karnataka, State Pollution Control Board (‘KSPCB’ for short)
and the Ministry of Environment, Forest and Climate
Change (‘MOEF&CC’ for short). The said Joint Committee
was required to make a spot inspection and submit a report.
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4. When this was the position the Joint Committee
submitted one of its reports dated 23.09.2019 indicating the
details of the property situate in the various Survey
Numbers, the activity carried out therein and the remarks
relating to the violation if any in the buffer zone. The NGT
on taking note of the pleadings of the parties, more
particularly the reply filed by the BBMP and the Joint
Committee Report dated 23.09.2019 has in that background
taken note of the decision rendered by this Court in the case
of Mantri Techzone Pvt. Ltd. Vs. Forward Foundation &
Ors. 2019 SCC Online SC 322 wherein it was ordered to
restore the buffer zones in terms of the zonal plan. The NGT
in that regard has also taken note that the original buffer
zone as per zonal plan is 30 mtrs. around the lake and 50
mtrs. from middle of the Rajkaluves in the case of primary
Rajkaluves and 25 mtrs. in the case of secondary
Rajkaluves and 15 mtrs. in the case of tertiary Rajkaluves.
Resultantly the NGT has arrived at the conclusion that the
EC could not have been granted so as to permit
construction in the buffer zone of the lake and drain by
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imposing conditions. The appellants are therefore
aggrieved.
5. Heard Dr. Abhishek Manu Singhvi, learned Senior
Counsel for the appellants, Mr. N. Venkatraman, learned
Additional Solicitor General, Mr. Darpan for respective
respondents and perused the appeal papers.
6. While reiterating the grounds urged in the appeal the
learned Senior Counsel for the appellants inter alia
contended that the very manner in which the NGT has
proceeded to decide the appeal is not justified. Apart from
referring to the nature of the construction being put up by
the appellants it was contended that though a Joint
Committee had been appointed by the NGT and a report was
sought, the appeal was considered and disposed of despite
the report relating to the construction in the property in
question not being available with the NGT. It was
contended that as such the consideration made based on
the report dated 23.09.2019 is not justified since the
Committee had indicated that a separate report will be
submitted in respect of the instant project. Though the
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respective learned counsel for the respondents sought to
justify the order of NGT on merits by seeking to contend
that there is violation of the zoning regulation and the
construction being put up by the appellants in the buffer
zone cannot be permitted and the learned Senior Counsel
for the appellants while seeking to controvert the said
position sought to refer to the project details, we are of the
opinion that the merits of the rival contentions relating to
the permissibility or otherwise of the project need not
engage our attention at this juncture. We are of the said
opinion for the reason that the point which requires
consideration at the outset at this juncture is as to whether
the entire material including the report of the Joint
Committee which was relevant to consider the case of the
parties herein was available before the NGT and as to
whether the NGT was justified in proceeding with the matter
in the manner as it has presently done.
7. In order to consider this aspect, a careful perusal of
the order dated 03.02.2020 impugned herein would disclose
that the reply filed by the BBMP is extensively extracted. It
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is no doubt true that contention has been urged by BBMP
with regard to the project not being permissible. In the light
of the rival pleadings since the tribunal was to render a
factual finding the report by the Joint Committee after
making a spot inspection was necessary so as to assist the
NGT in arriving at a conclusion. As indicated above, the
NGT has no doubt taken note of one of the reports
submitted by the Joint Committee dated 23.09.2019. The
said report has been extracted in the course of the
impugned order which refers to the existing properties in
Kaikondarahalli Lake buffer area and in the tabulated form
the survey number, activity and violation of buffer if any is
indicated as a remark. In respect of certain other
properties, the remarks have been made either with regard
to there being no violation or the activity not being a
permitted activity. Insofar as the property bearing Survey
No.62 of Kasavanahalli Village which is one of the survey
numbers wherein the project of the appellants is being
developed, a reference is made and in the remark; it is
recorded as hereunder:
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S.No Activity Violation of Buffer
.
62 Godrej by name “Wonder Sy No.62 and 63 falls
Projects Development Pvt. under Lake buffer area.
Ltd” have obtained As there is separate
Environmental Clearance O.A.602/2019 on this
from SEIAA and consent for project, the same will be
establishment from KSPCB inspected by the
and for establishment of committee as per the
residential apartment in Sy order dated 19.07.2019
Nos.61/2, 62 and 63/2. and separate report will
There is Nala within the be submitted by the
project area which connects committee.
Kasavanahalli tank to
Kaikondrahalli Tank.
Project under construction.
(emphasis
supplied)
8. A perusal of the remark extracted and emphasised
herein would indicate that a separate O.A. No.602/2019 is
also filed in respect of the instant project and the Committee
has indicated that a separate report will be submitted by it.
The NGT in the course of the impugned order dated
03.02.2020 at para 7 has recorded that O.A. No.281/2019
and O.A. No.602/2019 which are also raised on an identical
issue are being contemporaneously disposed of by separate
orders. The same would disclose that as on the date when
the appeal wherein the impugned order is passed was
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disposed of along with O.A. No.602/2019 the report relating
to the project of the appellant was not available on record
before the NGT if the remarks extracted above are kept in
view, since the Joint Committee was yet to complete the
inspection.
9. In this regard it is to be noted that while ordering
notice in this appeal on 02.03.2020 the parties were
permitted to file the report in O.A. No.602/2019 in the
Registry of this Court. The respondent No.7 herein along
with the affidavit has filed the report of the Joint Committee,
which at the outset indicates that it is with regard to the
project relating to the appellants herein. Further on
referring to certain aspects relating to the project the details
of the inspection carried out by the Joint Committee is
referred at Clause 6.0. It is indicated therein that in order
to finalize the report the Joint Committee comprising of the
members whose details are indicated made another round of
inspection and meeting on 05.02.2020. It is thus evident
that as on the date the impugned order was passed i.e.
03.02.2020 the final round of inspection had not been
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completed and as such the NGT did not have the benefit of
the final report by the Joint Committee for making a factual
determination, to arrive at a conclusion keeping in view the
legal position. Though the report of the Joint Committee is
presently placed before this Court, it would not be
appropriate for this Court to advert to the details of the
report and in that background take note of the rival
contentions on merits since first appellate authority, based
on the same has not made a factual determination so as to
consider the correctness or otherwise of the same in an
appeal of the present nature.
10. Presently since the report of the Joint Committee is
available in O.A. No.602/2019 relating to the same project,
the said report is required to be taken as a part of the
consideration of the Appeal No.54/2018 which is disposed
of through the impugned order by the NGT and a factual
determination in accordance with law is required to be
made. To enable the same we find it appropriate to set
aside the impugned order dated 03.02.2020 and restore
Appeal No.54/2018 to the file of the NGT so as to enable it
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to reconsider the appeal by taking into consideration the
report of the Joint Committee prepared in O.A.
No.602/2019, which shall be made available to the NGT by
respondent No.7 herein. It is made clear that in the
circumstances under which the order dated 03.02.2020 is
set aside, the validity or otherwise of the EC will remain
subject to the fresh decision that would be taken by the
NGT and the EC shall not stand revived at this juncture.
This Court has not expressed any opinion on merits and all
contentions are left open.
11. Taking note of the urgency indicated by the learned
Senior Counsel for the appellants we request the NGT to
dispose of the appeal after reconsideration within a period of
six weeks from the first date on which the parties appear
before the NGT. For the said purpose the NGT shall on
receipt of this order indicate a date for appearance which
shall be voluntarily ascertained by the parties herein
without expecting fresh notice to be issued by the NGT. The
NGT shall also provide opportunity to all the parties to put
forth any additional documents or objections if any to the
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report and thereafter consider the matter in accordance with
law.
12. In the result, the appeal is allowed in part. The order
dated 03.02.2020 is set aside and the matter is remitted to
the NGT to restore Appeal No.54/2018 and reconsider the
same in the manner indicated above. No construction shall
be put up in the meanwhile. There shall be no order as to
costs.
13. Pending applications, if any, shall stand disposed of.
……………………………CJI.
[S.A. BOBDE]
……..………………………,J.
[A.S. BOPANNA]
………….…………………,J.
[V. RAMASUBRAMANIAN]
New Delhi,
August 11, 2020
CA No.1713 of 2020
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