Wonder Projects Development Pvt. … vs Union Of India on 11 August, 2020


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Supreme Court of India

Wonder Projects Development Pvt. … vs Union Of India on 11 August, 2020

Author: 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:

CA No.1713 of 2020
2

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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3

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.

CA No.1713 of 2020
4

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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5

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

CA No.1713 of 2020
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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:



CA No.1713 of 2020
                                                                          8

       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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9

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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10

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

CA No.1713 of 2020
11

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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