The only issue involved in this application is whether non
consideration of a judgment delivered by a three-Judge Bench in
1 (2011) 1 SCC 744
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:
8 Building/Construction projects/Area
Development projects and Townships
8(a) Building and >20000 sq. #(built up area
Construction mtrs. And for covered
projects <1,50,000 sq. construction;
mtrs. Of built- in the case of
up area# facilities open
to the sky, it
will be the
activity area)
8(b) Townships Covering an ++All projects
and Area area >50 ha under Item
Development and or built 8(b) shall be
projects up area appraised as
>1,50,000 sq. Category B1.
mtrs. ++
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
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 non-FSI area.
14. Indeed, the concept of FSI or non-FSI 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 non-FSI
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 non-FSI 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 three-Judge 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
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
two-Judge Bench which delivered the judgment was bound by this
judgment of three-Judge 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
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
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
issue in the NOIDA Park case. Therefore, we find no merit in the
application and the same is dismissed accordingly.
(Deepak Gupta)
(Aniruddha Bose)
New Delhi September 11, 2019