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CASE NO.: Writ Petition (civil)  202 of 1995

PETITIONER: T.N. Godavarman Thirumulpad

RESPONDENT: Union of India and Ors

DATE OF JUDGMENT: 17/10/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T 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, 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  inter 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

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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. (JT 1996 (7)  SC 375) 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

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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 \026 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 )

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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.

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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

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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

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provision for obtaining environmental clearance by a Central  Government (MoEF) before undertaking any new project listed  in Schedule\026I 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

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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.