Thirumulpad Vs. Union of India & Ors  Insc 658 (17 October 2006)
Pasayat & S.H. Kapadia
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.
facts in a nutshell are as follows:
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:
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
While rainwater harvesting should be done, the withdrawal of ground water
should not he permitted in the shopping mall area.
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.
Utilization of solar energy must he maximized in all these proposals both for
heating water and generating power to light up corridors and parking.
Monitoring Committee may be constituted for overseeing the project so as to
ensure effective implementation and compliance to environmental
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.
it is submitted that there has been clear violation of the norms fixed on
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
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
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
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
Special Leave Petition is disposed of in these terms".
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
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.
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 ScheduleI 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
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.
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.
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
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.
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.
the MoEF take a decision within a period of 2 months from today to avoid
unnecessary delay. The IAs. are accordingly disposed of.