The only issue involved in this application is whether non consideration of a judgment delivered by a threeJudge Bench in Re: Construction of Park at Noida Near Okhla Bird Sanctuary Signature Not Verified Digitally signed by ARJUN BISHT Date: 2019.09.11 16:51:16 IST & Ors.1, hereinafter referred to as ‘NOIDA Park case’, has led to Reason:
1 (2011) 1 SCC 744 2 wrong conclusions by this Court with regard to the interpretation of built up area in terms of Item No. 8 of the Schedule of the Environment Impact Assessment (EIA) Notification dated 14.09.2006. The relevant portion of the notification reads as follows:
While interpreting this clause, one of us (Deepak Gupta, J.) held as follows:
“13. From a bare perusal of the two hash tags (#) in Column 4 and 5 of Item 8(a), it is apparent that what is shown under Column 5 is actually a continuation of Column 4 and basically it describes or defines ‘built up area’ to mean covered construction and if the facilities are open to the sky, it will be taken to be the activity area. This by itself clearly shows that 3 under the notification of 2006, all constructed area, which is covered and not open to the sky has to be treated as ‘built up area’. There is no exception for nonFSI area.
14. Indeed, the concept of FSI or nonFSI has no concern or connection with grant of EC. The same may be relevant for the purposes of building plans under municipal laws and regulations but it has no linkage or connectivity with the grant of EC. When EC is to be granted, the authority which has to grant such clearance is only required to ensure that the project does not violate environmental norms. While projects and activities, as mentioned in the notification, may be allowed to go on, the authority while granting permission should ensure that the adverse impact on the environment is kept to the minimum. Therefore, the authority granting EC may lay down conditions which the project proponent must comply with. While doing so, such authority is not concerned whether the area to be constructed is FSI area or nonFSI area. Both will have an equally deleterious effect on the environment. Construction implies usage of a lot of materials like sand, gravel, steel, glass, marble etc., all of which will impact the environment. Merely because under the municipal laws some of this construction is excluded while calculating the FSI is no ground to exclude it while granting the EC.
Therefore, when EC is granted for a particular construction it includes both FSI and nonFSI areas. As far as environmental laws are concerned, all covered construction, which is not open to the sky is to be treated as built up area in terms of the EIA Notification dated 14.09.2006.” The contention raised on behalf of the applicant is that since the threeJudge Bench had in Para 84 of the judgment in the NOIDA Park case observed that the EIA Notification dated 14.09.2006 calls for a close second look by the authorities concerned especially in respect of the projects/activities falling 4 within the ambit of Items 8(a) and 8(b) of the Schedule to the Notification which need to be described with greater precision and clarity and the definition of built up area with facilities open to the sky needs to be freed from its present ambiguity and vagueness, the twoJudge Bench which delivered the judgment was bound by this judgment of threeJudge Bench and could not have held that the Notification dated 14.09.2006 clearly shows that all constructed area which is covered and not open to the sky, has to be treated as built up area.
Though the observations in Para 84, at first blush, support the contention of the applicant, one has to appreciate the factual background in which these observations were made. In the NOIDA Park case, this Court was asked to intervene and halt a project in which a huge park was being constructed. As far as Item 8(a) of the Schedule to the EIA Notification, 2006 is concerned, the contentions in this regard start from Para 38. The MoEF took the stand that no environmental clearance was required because the project area was 33.43 hectares, which was less than 50 hectares 5 and the built up area was 9542 sq. mtrs., which was less than 20,000 sq. mtrs.
It was contended on behalf of the petitioners and the amicus curiae that the project would fall under Section 8(a) because though the covered construction of the project was only 6999.50 sq. mtrs., the project by its very nature provided facilities open to the sky and the whole of this open area, which was activity area, should be treated as the built up area. The park consisted of certain constructed structures like pathways, walkways, statues, fountains, etc. which were open to the sky and treated as activity area. The contention of the amicus curiae and the petitioners who were objecting to the project was that the construction which was open to the sky and was to be treated as activity area should also be considered as part of the built up area.
The main dispute in the NOIDA Park case was whether the project was a building and construction project or a township and area development project. This Court held that this was a township and area development project. While considering this dispute the 6 Court felt that there was some ambiguity. This issue did not arise in the case in hand. The second point urged before the Court was that the facilities open to the sky i.e. the activity area should also be included in the built up area and it was this confusion which the court wanted the Central Government to settle. No party had raised any contention in the NOIDA Park case about the covered area being built up area. All the parties were ad idem that covered construction was built up area and the Court also held so.
This Court in this judgment has only held that all covered construction shall be deemed to be built up area and that the municipal laws regarding Floor Space Index (FSI) or Floor Area Ratio (FAR) have no relevance. This issue did not arise in the NOIDA Park case.
Therefore, in our opinion, the earlier judgment will have no impact on the present case.
Reference was also made to Notification dated 04.04.2011 and the Clarification dated 07.07.2017. These have already been dealt with in the judgment dated 10.08.2018 and those were not points of 7 issue in the NOIDA Park case. Therefore, we find no merit in the application and the same is dismissed accordingly.
…………………………………J.
(Deepak Gupta) ………………………………..J.
(Aniruddha Bose) New Delhi September 11, 2019