Keystone Realtors Pvt. Ltd. vs Anil V. Tharthare

1. The present Civil Appeal arises from an order dated 11 February 2019 of the Principal Bench of the National Green Tribunal1. In its order, the NGT held that the increase in the total construction area of the appellant‟s project was an “expansion” under a notification (bearing number S.O. 1533) dated 14 September 20062 of the Ministry of Environment and Forests. The NGT found that the appellant had undertaken an “expansion” as set out in Paragraph 2 of the EIA 1 NGT 2 EIA Notification 1 Notification without complying with the regulatory procedure prescribed. The appellant was directed to deposit an amount of Rupees one crore with the Central Pollution Control Board3. Noting that the construction at the project site had been completed, the NGT appointed a five-member expert committee to study the impact of the appellant‟s expanded project and to suggest remedial measures.

The facts

2. The appellant is the project proponent of a residential redevelopment, called „Oriana Residential Project‟ situated at CTS no 646, 646 (Pt) Gandhinagar, Bandra (East), Mumbai 400050. On 8 June 2010 the appellant received a Commencement Certificate to carry out the development and erect a building situated at the project property. The appellant began construction. When the construction commenced, the total construction area was 8,720.32 square metres. The ambit of the project was expanded, and the constructed area was increased to 32,395.17 square metres. Under the EIA Notification, an Environmental Clearance4 was necessary if the total construction area exceeded 20,000 square metres. Hence, the appellant applied for an EC under the EIA Notification.

3. The fourth respondent, the State Level Expert Appraisal Committee for Maharashtra5 recommended the grant of an EC for the project. On 2 May 2013 the third respondent, the State Level Environment Impact Assessment Authority 3 CPCB 4 EC 5 SEAC 2 for Maharashtra6, based on the recommendations of the SEAC granted an EC. It is not in dispute that at the time when the EC dated 2 May 2013 was granted, the total construction area of the project was 32,395.17 square metres. The grant of the EC was conditional on the appellant obtaining a „consent for establishment‟ from the Maharashtra Pollution Control Board under the Air (Prevention and Control of Pollution) Act 1981 and the Water (Prevention and Control of Pollution) Act 1974.

4. By a letter dated 24 September 2013, the appellant informed the Environment Department of the Government of Maharashtra, the second respondent, that the construction area was being further increased by 8,085.71 square metres, as a result of which the total construction area of the project would stand enhanced to 40,480.88 square metres. In its letter, the appellant sought an „amendment‟ to the EC dated 2 May 2013 by the third respondent to reflect the increase in the total construction area. On 13 March 2014, the third respondent granted an „amendment‟ to the EC dated 2 May 2013 on the ground that there was only a “marginal increase in built up and construction area”. The third respondent noted the changes in the specification of the project as follows:

5. The first respondent, claiming to be a resident of MIG Colony, Gandhinagar, Bandra East, Mumbai, challenged the grant of the amended EC dated 13 March 2014 before the Pune Bench of the NGT. In response, the appellant filed two applications, challenging the standing of the first respondent and contending that the challenge was barred by limitation. By an order dated 4 May 2016, the Pune Bench of the NGT rejected the applications questioning the maintainability of the proceedings and setting up the bar of limitation. The appellant filed a writ petition before the High Court of Judicature at Bombay to challenge the decision of the Pune Bench of the NGT. The Bombay High Court, allowing the writ petition held by an order dated 12 August 2016, that the appeal was not maintainable at the behest of the first respondent, and the challenge against the grant of the amended EC dated 13 March 2014 was barred by limitation. By an administrative order dated 31 July 2018, the dispute was transferred from the Pune Bench of the NGT to the Principal Bench which heard the parties and delivered the impugned order.

17. At the time of the second increase, the total construction area of the appellant‟s project was enlarged from 32,395.17 square metres to 40,480.88 square metres. As a result of the expansion, the appellant constructed sixteen additional flats which were sold at the prevailing market rate. The appellant did not comply with the procedure set out under paragraph 7(ii) of the EIA Notification but rather sought an „amendment‟ to the EC. The third respondent did not require the appellant to submit an updated Form 1 nor was the proposal processed and evaluated by the fourth respondent. The „amendment‟ to the EC dated 13 March 2014 does not discuss the potential environmental impact of the increase in construction area, but merely records that the construction area now stands at 40,480.88 square metres. The procedure set out under paragraph 7(ii) of the EIA Notification exists to ensure that where a project is expanded in size, the environmental impact on the surrounding area is evaluated holistically considering all the relevant factors including air and water availability and pollution, management of solid and wet waste and the urban carrying capacity of the area. This was not done in the case of the appellant‟s project. It was not open to the third respondent to grant an „amendment‟ to the EC without following the procedure set out in paragraph 7(ii) of the EIA Notification.

19. The appeal is dismissed. There shall be no order as to costs.

20. Pending application(s), if any, shall stands disposed of.

.……......................................................J [Dr Dhananjaya Y Chandrachud] .……......................................................J [Ajay Rastogi] New Delhi;

December 3, 2019.