Summary
A Pune developer exceeded the built-up area authorised by its environmental clearance. The Supreme Court rejected exclusion of non-FSI construction, quashed a contrary office memorandum and later clearance, and set aside an improperly heard NGT review. Protecting existing buyers in the peculiar circumstances, it limited completion to specified buildings and imposed substantial damages with enforcement directions.
Issues
- Whether non-FSI construction could be excluded from environmental built-up area.
- Whether the later memorandum and clearance were valid.
- Whether the NGT review was properly heard and maintainable during the pending appeal.
- What construction limits, damages and enforcement measures were appropriate.
Provisions considered
- Schedule, Item 8(a) and 8(b), Environment Impact Assessment Notification dated 14 September 2006Built-up area included all covered construction not open to the sky; municipal FSI exclusions did not reduce the environmental assessment area. The later project was wrongly treated as Category B2. (¶¶ 12, 13, 14, 21, 22, 23)
- Built-up-area definition, Notification dated 4 April 2011 amending the EIA NotificationThe definition included covered area on all floors, basements and service areas. Whether the amendment was clarificatory or substitutive was unnecessary to decide. (¶¶ 15, 16)
- Order XLVII Rules 1(2) and 5, Code of Civil Procedure, 1908Review principles required consideration by the original Bench when available and prevented this review from proceeding on issues already before the Supreme Court in the statutory appeal. (¶¶ 29, 31, 33, 35, 36, 37, 38, 39, 41, 46)
Held
- For environmental clearance, all covered construction not open to the sky counted as built-up area, including municipal non-FSI areas. The office memorandum of 7 July 2017 could not displace the statutory notification and was quashed. The 20 November 2017 clearance was also quashed for excluding relevant constructed area and proceeding on an invalid basis. (¶¶ 13, 14, 18, 19, 21, 22, 23)
- A review should ordinarily be heard by the Bench which decided the matter, unless that is impracticable or its members recuse. The original judicial member remained available; moreover, the damages issue could be raised in the pending Supreme Court appeal. The NGT review order was set aside. (¶¶ 33, 35, 36, 38, 39, 41, 46)
- Demolition was declined in the peculiar circumstances to protect innocent buyers. Completion was limited to 807 flats, 117 shops or offices, and the cultural centre including clubhouse. The two proposed buildings containing 454 tenements were prohibited, with investors in them entitled to refunds carrying nine per cent annual interest. PMC and SEIAA were to ensure permanent blocking of the basements. (¶¶ 47, 48, 49, 59(x), 59(xi))
- Carbon-footprint damages were unsupported by reliable expert evidence or empirical material here. The Court did not bar that method in a properly supported case. The applicant’s private dispute did not warrant special damages to him. (¶¶ 49, 50, 52, 53, 54, 55, 56)
- The developer must pay the higher of Rs.100 crore or ten per cent of project cost, plus Rs.5 crore. Project cost included land at 2014 circle rates and construction at 2014 Maharashtra PWD rates, or corresponding CPWD rates if unavailable. Project-related TDR benefits were to be forfeited, recovered or adjusted as directed. (¶¶ 57, 59(ix))
- Damages were to be deposited in the Supreme Court Registry within six months. Default would trigger attachment and sale of developer and director assets, cancellation of development permissions and a bar on further real-estate development permissions without leave of the Court. (¶ 59(xiii))
- Only after depositing the damages could the developer seek environmental clearance for the permitted completion, subject to conditions imposed by the competent authority. This exceptional direction did not itself grant clearance. (¶¶ 58, 59(xii))
- The remaining original NGT directions, including the PMC fine and action concerning erring officials, were upheld. Personal allegations against unimpleaded individuals were not adjudicated. The Chief Secretary was to report on the concerned Principal Secretary’s conduct to the NGT within three months. (¶¶ 25, 26, 27, 59(v), 59(vi), 59(viii))
Result
Appeals disposed of with modified damages, construction limits and enforcement directions. The 2017 memorandum and clearance and the 2018 NGT review order were quashed; other specified NGT directions upheld. Matter listed for directions on use of damages.