Judgment
1. The appellants are before this Court claiming to be aggrieved by the order dated 3-2-2020 passed by the National Green Tribunal, Principal Bench, New Delhi (“NGT” for short) in H.P. Ranjanna v. Union of India 2020 SCC OnLine NGT 226. The appellants herein were arrayed as Respondents 11 and 12 in the appeal before NGT. By the order impugned herein, NGT has set aside the environmental clearance (“EC” for short) issued by the State Environment Impact Assessment Authority (“Seiaa” for short), Karnataka, in favour of the appellants through its order dated 10-1-2018.
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 Surveys 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 Seiaa, Karnataka, which is the competent authority in that regard. Seiaa having considered the project report of the appellants has granted the EC through its order dated 10-1-2018.
3. Respondent 2 herein being aggrieved that the construction being undertaken by the appellants herein is in the buffer zone of Kaikondarahalli Lake, apart from being on the primary and secondary rajakaluve and, therefore, the area being eco-fragile had assailed the EC granted in favour of the appellants by filing the appeal before NGT. The appellants herein had appeared and filed their objection statements denying the allegations made in the appeal.
4. 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. BBMP had filed a detailed reply dated 5-9-2019, and had, in fact, contended that the project is illegal and they have also issued the “stop work” notice to the project proponent on 13-7-2018 since there is violation of these zoning regulations of the Revised Master Plan — 2015.
5. Based on the pleadings since a factual determination was required to be made by NGT, 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.
6. When this was the position, the Joint Committee submitted one of its reports dated 23-9-2019 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. NGT on taking note of the pleadings of the parties, more particularly the reply filed by BBMP and the Joint Committee Report dated 23-9-2019 has in that background taken note of the decision rendered by this Court in Mantri Techzone (P) Ltd. v. Forward Foundation (2019) 18 SCC 494 wherein it was ordered to restore the buffer zones in terms of the zonal plan. NGT in that regard has also taken note that the original buffer zone as per zonal plan is 30 m around the lake and 50 m from middle of the rajkaluves in the case of primary rajkaluves and 25 m in the case of secondary rajkaluves and 15 m in the case of tertiary rajkaluves. Resultantly, NGT has arrived at the conclusion 2020 SCC OnLine NGT 226 that the EC could not have been granted so as to permit construction in the buffer zone of the lake and drain by imposing conditions. The appellants are, therefore, aggrieved.
7. Heard Dr Abhishek Manu Singhvi, learned Senior Counsel for the appellants, Mr N. Venkataraman, learned Additional Solicitor General, Mr Darpan for respective respondents and perused the appeal papers.
8. While reiterating the grounds urged in the appeal, the learned Senior Counsel for the appellants inter alia contended that the very manner in which 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 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 NGT. It was contended that as such the consideration made based on the report dated 23-9-2019 is not justified since the Committee had indicated that a separate report will be submitted in respect of the instant project. Though the respective learned counsel for the respondents sought to justify the order 2020 SCC OnLine NGT 226 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 NGT and as to whether NGT was justified in proceeding with the matter in the manner as it has presently done.
9. In order to consider this aspect, a careful perusal of the order dated 3-2-2020 2020 SCC OnLine NGT 226 impugned herein would disclose that the reply filed by BBMP is extensively extracted. It 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 NGT in arriving at a conclusion. As indicated above, NGT has no doubt taken note of one of the reports submitted by the Joint Committee dated 23-9-2019. The said report has been extracted in the course of the impugned order 2020 SCC OnLine NGT 226 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:
Sl. No.
Activity
Violation of Buffer
62.
Godrej by name “Wonder Projects Development (P) Ltd.” have obtained Environmental Clearance from Seiaa and consent for establishment from Kspcb and for establishment of residential apartment in Surveys Nos. 61/2, 62 and 63/2. There is Nala within the project area which connects Kasavanahalli tank to Kaikondrahalli Tank. Project under construction.
Surveys Nos. 62 and 63 fall under Lake buffer area. As there is separate OA No. 602 of 2019 on this project, the same will be inspected by the committee as per the order dated 19-7-20193 and separate report will be submitted by the committee.
(emphasis supplied)
10. A perusal of the remark extracted and emphasised herein would indicate that a separate OA No. 602 of 2019 is also filed in respect of the instant project and the Committee has indicated that a separate report will be submitted by it. NGT in the course of the impugned order dated 3-2-2020 2020 SCC OnLine NGT 226 at para 7 has recorded that OA No. 281 of 2019 and OA No. 602 of 2019 which are also raised on an identical issue are being contemporaneously disposed of by separate orders 2019 SCC OnLine NGT 1304 2019 SCC OnLine NGT 1748. The same would disclose that as on the date when the appeal wherein the impugned order 2020 SCC OnLine NGT 226 is passed was disposed of along with OA No. 602 of 2019 the report relating to the project of the appellant was not available on record before NGT if the remarks extracted above are kept in view, since the Joint Committee was yet to complete the inspection.
11. In this regard it is to be noted that while ordering notice in this appeal on 2-3-2020 the parties were permitted to file the report in OA No. 602 of 2019 in the Registry of this Court. Respondent 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 are referred at Clause 6.0. It is indicated therein that in order to finalise the report the Joint Committee comprising of the members whose details are indicated made another round of inspection and meeting on 5-2-2020. It is thus evident that as on the date the impugned order was passed i.e. 3-2-2020 2020 SCC OnLine NGT 226 the final round of inspection had not been completed and as such 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 the 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.
12. Presently, since the report of the Joint Committee is available in OA No. 602 of 2019 relating to the same project, the said report is required to be taken as a part of the consideration of Appeal No. 54 of 2018 which is disposed of through the impugned order 2020 SCC OnLine NGT 226 by 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 3-2-2020 2020 SCC OnLine NGT 226 and restore Appeal No. 54 of 2018 to the file of NGT so as to enable it to reconsider the appeal by taking into consideration the report of the Joint Committee prepared in OA No. 602 of 2019, which shall be made available to NGT by Respondent 7 herein. It is made clear that in the circumstances under which the order dated 3-2-2020 2020 SCC OnLine NGT 226 is set aside, the validity or otherwise of the EC will remain subject to the fresh decision that would be taken by 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.
13. Taking note of the urgency indicated by the learned Senior Counsel for the appellants we request NGT to dispose of the appeal after reconsideration within a period of six weeks from the first date on which the parties appear before NGT. For the said purpose 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 NGT. NGT shall also provide opportunity to all the parties to put forth any additional documents or objections if any to the report, and thereafter, consider the matter in accordance with law.
14. In the result, the appeal is allowed in part. The order dated 3-2-2020 2020 SCC OnLine NGT 226 is set aside and the matter is remitted to NGT to restore Appeal No. 54 of 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.
15. Pending applications, if any, shall stand disposed of.