Case: M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD Vs. UNION OF INDIA THROUGH SECRETARY MINISTRY OF ENVIRONMENT AND FOREST

the original applicant has also challenged the original order of the NGT. While assessing the damages we may note certain facts:1) The EC was granted on 04.04.2008 but construction commenced after issuance of consent to establish dated 20.06.2009 and the EC would be valid for a period of 5 years from the date of such consent, i.e. upto 19.06.2014;2) The EC dated 04.04.2008 was granted for construction of built up area 57,658.42 sq.mtrs., whereas admittedly, as of now the constructed built up area is 1,00,002.25 sq. mtrs.. Therefore, there is clear-cut violation of the terms of the EC;3) Any construction raised after 19.06.2014 is without any EC especially since we have held that EC granted on 20.11.2017 is invalid.Carbon Footprint:52. The main case of the original applicant is that the damages should be assessed on a scientific basis by calculating the damage caused to the environment by the project proponent on the basis of Carbon Footprint. In the absence of detailed submissions, we find ourselves totally unequipped to go into this aspect of the matter.53. In the original application filed by the original applicant before the NGT, there is no reference to Carbon Footprint. Even when evidence was initially led, no reference was made to the same. The concept of Carbon Footprint was introduced by the original applicant only in his affidavit dated 18.05.2016. In fact, according to the project proponent this affidavit was not even filed on 18.05.2016. It appears to us that there is no order of the NGT specifically permitting the original applicant to file such an affidavit. The submission of original applicant is that he was orally permitted to file the same. These disputed questions would have been only decided by the Original Bench and, therefore, we have already set aside the order passed in the review application dated 08.01.2018.54. Courts cannot introduce a new concept of assessing and levying damages unless expert evidence in this behalf is led or there are some well established principles. We find that no such principles have been accepted or established in the present case. When there are no pleadings in this regard we fail to understand how the concept of Carbon Footprint can be introduced after evidence has been closed, at the stage of arguments. We cannot assess the impact in actual terms and, therefore, we can only impose damages or costs on principles which have been well settled by law.55. We may also note that the method to which the original applicant referred to is not part of any law, Rule or executive instructions. This method is no doubt used to compensate and impose damages on nations but we cannot apply this method while imposing damages on a person who violates the EC. We may also add that the calculation made by the original applicant in his affidavit dated 18.05.2016 filed before the NGT are based on assumptions some of which we have not found to be correct namely - (1) use of ground water; (2) reduction of Cultural Centre space; (3) construction of basements etc..56. We may make it clear that we are not laying down the law that damages cannot be assessed on the basis of Carbon Footprint. In a case where expert evidence in this behalf is led or on the basis of empirical data it is established that by applying the principles of Carbon Footprint damages can be assessed, the Court may, in the facts and circumstances of the case, rely upon such data but, in the present case, there is no such reliable material.57. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has maneuvered and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone upto 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons, residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area etc.. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs. 100 crores or 10% of the project cost whichever is more. We also make it clear that while calculating the project cost the entire cost of the land based on the circle rate of the area in the year 2014 shall be added. The cost of construction shall be calculated on the basis of the Schedule of rates approved by the Public Works Department (PWD) of the State of Maharashtra for the year 2014. In case the PWD of Maharashtra has not approved any such rates then the Central Public Works Department rates for similar construction shall be applicable. We have fixed the base year as 2014 since the original EC expired in 2014 and most of the illegal construction took place after 2014. In addition thereto, if the project proponent has taken advantage of Transfer of Development Rights (for short TDR) with reference to this project or is entitled to any TDR, the benefit of the same shall be forfeited and if he has already taken the benefit then the same shall either be recovered from him or be adjusted against its future projects. The project proponent shall also pay a sum of Rs. 5 crores as damages, in addition to the above for contravening mandatory provisions of environmental laws.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We say this because as held by us above, there is no ambiguity with regard to the definition ofeven under the notification of 2006 and it covers all constructed area not open to the sky. The notification of 2011 only provides that theor covered areahe area of all floors put together including basement(s)ce areas. We may againthat this definition also is in consonance with the concept of grant of EC for construction as explained above and it is obvious that the concept of FSI orarea is alien to environmental laws.8. Without going into this aspectr, we are clearlyew that such an office memorandum could not and should not have been issued. The notification dated 14.09.2006 is a statutory notification issuedin terms ofnt (Protection) Rules, 1986 which provides that before such a notification is issued the Central Government has to give notice of its intention of issuing a notification and objections to the same are invited. No doubt the Central Government is empowered in public interest to dispense with the requirement of notice but this obviously has to be done in exceptional cases. The notification dated 14.09.2006 was issued by the Central Government and published in the gazette after inviting objections from the public. The first clarification with regard to this notification was issuedto which we have adverted above. These two decisionsthe Central Governmentwhich were notified as per the provisions of law could not have been set at naught by the Joint Director even if it was issued with the approval of a higher authority. We areew that since such decision has not been notified in the gazette the statutory notification dated 14.09.2006 and its subsequent clarification dated 04.04.2011 could not have been virtually set aside by this office memorandum.19. We are alsoew that the so called office memorandum is not at all clarificatory in nature. As held by us above the notification of 2006 with regard towas absolutely clear and needed no clarification. We fail to understand how the concept ofas understood in the buildingor DCR could be introduced into the notification of 2006 by this office memorandum which virtually made the notification of 2006 totally redundant. Therefore, we quash the office memorandum dated 07.07.2017.20. This is not the first time that we have noticed such clarificatory communications being issued by the officialsthe Ministry ofEnvironment, Forest and Climatewhich virtually have the effect of nullifying the statutorys. We have adverted to somee communications in our judgment in Common CauseUnion of India. We expect the officialsthe Ministry ofEnvironment, Forest and Climateto take a stand which prevents the environment and ecology from being damaged, rather than issuing clarifications which actually help the project proponents to flout the law and harm the environment.21. In viewe, we are clearlyew that the EC granted to the project proponent on 04.04.2008 was for constructing a totalof 57,658.42 sq.mtrs. and this would include all covered construction not open to the sky. No artificial division on the basis of FSI andarea can be made. Therefore, the NGT was fully justified in coming to the conclusion that the construction raised by the project proponent was in total violationthe EC granted to7) 9 SCC 499  Environmental Clearance dated 20.11.201722. The project proponent has drawn our attention to the EC for expansionthe project in questiongranted to it by the State Level Environment Impact Assessment Authority (SEIAA) on 20.11.2017. We may note that this clearance indicates that the existing construction comprises of 73815 shops which have been completed, 692 shops which are under construction, meaning thereby that 80717 shops are already in existence and in addition thereto 454 moreal centre are sought to be constructed. This will take the total number of flats to 1261 and number of shops to 117. We may also notice that the SEIAA has laid down general conditions forphase and the first condition is as followsThis environmental clearance (EC) is issued for totalarea of 147219.452 as approved by local planning authority. It is noted that the total proposed construction area is 147219.45 m2 which includes the area of previous EC (dated 04.04.2008) 57,658.42 m2 and the proposed expansion area of 89,561.03 sq.m. However the abovesq.m. is notional as the NON FSI area componentus EC is not included in 1,47,219.45 m2. After considering the NON FSI areaus EC the totales 1,81,230.94 m. SEIAA has also taken noteon issued by MOEF and CC vide office memorandumth July,stating the definition ofll be assessed as per the buildingof thelocal authorities in theaforementioned condition itself clearly shows that thearea constructed by the project proponent under first EChas not been taken into consideration. The project proponent has raised construction in Plot No. 1 of an FSI area measuring 48,424.66 sq. mtrs., andarea measuring 46,088.47 sq. mtrs.. Therefore, the total construction raised in Plot No. 1 is 94,513.13 sq. mtrs.. In Plot No. 2 the construction raised on an FSI area is 630.55 sq. mtrs. and on thearea is 4,858.57 sq. mtrs. and, therefore, the total construction already raised in Plot No. 2 is 5,489.12 sq. mtrs.. The total construction raised by the project proponent is 1,00,002.25 sq. mtrs. against theThis could not have been ignored by the SEIAA.23. In case the total construction raised by the project proponent is taken as 1,00,002.25 sq. mtrs. and if the areaed construction is added then the project will fall in B1 category and, therefore, the SEIAA had no authority to grant EC by treating the project as falling under Category B2. Furthermore, the ECis also illegal as the same has been granted on the presumptionthe order dated 31.05.2016passed by the Principal Secretary, Environment Department, State of Maharashtra holding that the construction of 18 buildings instead of 12 buildings is permissible. The EC completely lost sightthe fact thatthe order dated 31.05.2016was quashed and set aside by the NGT in its order dated 27.09.2016. We may note that the official who passed the order on 31.05.2016 was the same official, who held the office of Member Secretary of SEIAA, which granted environmental clearance on 20.11.2017. Therefore, the EC dated 20.11.2017 was beyond the authority of SEIAA and was granted under a totally false assumption and the same is therefore quashed and set aside.Allegations made bythe original applicantagainst various officials24. The NGT in its order dated 27.09.2016, has found that there was suppression of facts by theC. The NGT also directed the Chief Secretary to the State of Maharashtra to take noticers who were misleading the Department of Environment. Costs were imposed on the PMC, Department of Environment and the SEIAA. This has been challenged before us by the PMC.25. The original applicant both in his original application filed before the NGT and in appeal filed before us as well as in other proceedings has made serious allegations against individual officersMC as well as the SEIAA and specially the Principal Secretary, Environment Department, Govt. of Maharashtra. However, for reasons best known tothe original applicantse individuals has been made a party in personal capacity in these proceedings. The law is well settled that no person can be condemned unheard. It would, therefore, not be fair on our part, to deal with allegations made against individuals who are not parties to the petition and who have had no chance to reply to the allegations levelled against them. Therefore, we refrain from commenting on the conductls in their individual capacity.26. However, as far as their official capacity is concerned, we areew that the NGT was fully justified in coming to the conclusion that certain officials of PMC were going outr way to help the project proponent and we, therefore, uphold the directions given by the NGT in its order dated 27.09.2016 in this regard. In view of what we have discussed above, it is more than apparent that despite notifications of 2006 and 2011 being clear and unambiguous, the officials of PMC have given an interpretation which wasto suit the project proponent. This was being done even before the clarification of 07.07.2017 was issued. This clearly indicates that some officialsMC were espousing the casethe project proponentat the cost7. We may also observe that prima facie we areew that the Principal Secretary, Environment Department, Govt. of Maharashtra has not acted in a fair and transparent manner. The allegations made bythe original applicantcannot be lightly brushed aside. In the original order dated 27.09.2016, the NGT held as followsFrom the extracted portionthe order dated 31st May, 2016 of Principal Secretary, Environment Department, it is seen that he has declared construction of 18 buildings on the site instead of 12 buildings is permissible which, according to him, only a changes on configuration of buildings. This opinion undoubtedly is based on his erroneous conclusion that total BUA which is nothing but F.S.I. consumed i.e. 48617.14which is within the EC limit as against the actual construction activity which has exceeded over 100000 sq.mtrs BUA. Hence we set aside that order/communication dated 31he official holding the post of Principal Secretary must have been awaree directions because he was a party to the proceedings before the NGT. Despite that, while granting fresh EC on 20.11.2017, this official noticed that reference to the Environment Department for verification of files was withdrawn vide letter