National Green Tribunal 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 10.01.2018. = remanded – It is thus evident that as on the date the impugned order was passed i.e. 03.02.2020 the final round of inspection had not been completed and as such the 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 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.

1
NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1713 OF 2020
Wonder Projects Development Pvt. Ltd.
& Anr. ..Appellant(s)
Versus
Union of India & Ors. ..Respondent(s)
J U D G M E N T

  1. The appellants are before this Court claiming to be
    aggrieved by the order dated 03.02.2020 passed by the
    National Green Tribunal, Principal Bench, New Delhi (‘NGT’
    for short) in Appeal No. 54/2018. The appellants herein
    were arrayed as respondent Nos. 11 and 12 in the appeal
    before the NGT. By the order impugned herein, the NGT
    has set aside the Environmental Clearance (‘EC’ for short)
    issued by the State Environment Impact Assessment
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    2
    Authority (‘SEIAA’ for short), Karnataka, in favour of the
    appellants through its order dated 10.01.2018.
  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 Survey
    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
    the SEIAA, Karnataka which is the Competent Authority in
    that regard. The SEIAA having considered the project report
    of the appellants has granted the EC through its order dated
    10.01.2018. The respondent No.2 herein being aggrieved
    that the construction being undertaken by the appellants
    herein is in the buffer zone of the Kaikondarahalli Lake,
    apart from being on the primary and secondary Rajkaluve
    and, therefore, the area being eco­fragile had assailed the
    EC granted in favour of the appellants by filing the appeal
    before the NGT. The appellants herein had appeared and
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    3
    filed their objection statements denying the allegations
    made in the appeal. 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. The BBMP had
    filed a detailed reply dated 05.09.2019 and had in fact
    contended that the project is illegal and they have also
    issued the ‘stop work’ notice to the project proponent on
    13.07.2018 since there is violation of these Zoning
    Regulation of the Revised Master Plan – 2015.
  3. Based on the pleadings since a factual determination
    was required to be made by the NGT, the 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.
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    4
  4. When this was the position the Joint Committee
    submitted one of its reports dated 23.09.2019 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. The NGT
    on taking note of the pleadings of the parties, more
    particularly the reply filed by the BBMP and the Joint
    Committee Report dated 23.09.2019 has in that background
    taken note of the decision rendered by this Court in the case
    of Mantri Techzone Pvt. Ltd. Vs. Forward Foundation &
    Ors. 2019 SCC Online SC 322 wherein it was ordered to
    restore the buffer zones in terms of the zonal plan. The NGT
    in that regard has also taken note that the original buffer
    zone as per zonal plan is 30 mtrs. around the lake and 50
    mtrs. from middle of the Rajkaluves in the case of primary
    Rajkaluves and 25 mtrs. in the case of secondary
    Rajkaluves and 15 mtrs. in the case of tertiary Rajkaluves.
    Resultantly the NGT has arrived at the conclusion that the
    EC could not have been granted so as to permit
    construction in the buffer zone of the lake and drain by
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    5
    imposing conditions. The appellants are therefore
    aggrieved.
  5. Heard Dr. Abhishek Manu Singhvi, learned Senior
    Counsel for the appellants, Mr. N. Venkatraman, learned
    Additional Solicitor General, Mr. Darpan for respective
    respondents and perused the appeal papers.
  6. While reiterating the grounds urged in the appeal the
    learned Senior Counsel for the appellants inter alia
    contended that the very manner in which the 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 the 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 the NGT. It was
    contended that as such the consideration made based on
    the report dated 23.09.2019 is not justified since the
    Committee had indicated that a separate report will be
    submitted in respect of the instant project. Though the
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    respective learned counsel for the respondents sought to
    justify the order 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 the NGT and as to
    whether the NGT was justified in proceeding with the matter
    in the manner as it has presently done.
  7. In order to consider this aspect, a careful perusal of
    the order dated 03.02.2020 impugned herein would disclose
    that the reply filed by the BBMP is extensively extracted. It
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    7
    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 the
    NGT in arriving at a conclusion. As indicated above, the
    NGT has no doubt taken note of one of the reports
    submitted by the Joint Committee dated 23.09.2019. The
    said report has been extracted in the course of the
    impugned order 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:
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    S.No
    .
    Activity Violation of Buffer
    62 Godrej by name “Wonder
    Projects Development Pvt.
    Ltd” have obtained
    Environmental Clearance
    from SEIAA and consent for
    establishment from KSPCB
    and for establishment of
    residential apartment in Sy
    Nos.61/2, 62 and 63/2.
    There is Nala within the
    project area which connects
    Kasavanahalli tank to
    Kaikondrahalli Tank.
    Project under construction.
    Sy No.62 and 63 falls
    under Lake buffer area.
    As there is separate
    O.A.602/2019 on this
    project, the same will be
    inspected by the
    committee as per the
    order dated 19.07.2019
    and separate report will
    be submitted by the
    committee. (emphasis supplied)
  8. A perusal of the remark extracted and emphasised
    herein would indicate that a separate O.A. No.602/2019 is
    also filed in respect of the instant project and the Committee
    has indicated that a separate report will be submitted by it.
    The NGT in the course of the impugned order dated
    03.02.2020 at para 7 has recorded that O.A. No.281/2019
    and O.A. No.602/2019 which are also raised on an identical
    issue are being contemporaneously disposed of by separate
    orders. The same would disclose that as on the date when
    the appeal wherein the impugned order is passed was
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    9
    disposed of along with O.A. No.602/2019 the report relating
    to the project of the appellant was not available on record
    before the NGT if the remarks extracted above are kept in
    view, since the Joint Committee was yet to complete the
    inspection.
  9. In this regard it is to be noted that while ordering
    notice in this appeal on 02.03.2020 the parties were
    permitted to file the report in O.A. No.602/2019 in the
    Registry of this Court. The respondent No.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 is
    referred at Clause 6.0. It is indicated therein that in order
    to finalize the report the Joint Committee comprising of the
    members whose details are indicated made another round of
    inspection and meeting on 05.02.2020. It is thus evident
    that as on the date the impugned order was passed i.e.
    03.02.2020 the final round of inspection had not been
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    10
    completed and as such the 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 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.
  10. Presently since the report of the Joint Committee is
    available in O.A. No.602/2019 relating to the same project,
    the said report is required to be taken as a part of the
    consideration of the Appeal No.54/2018 which is disposed
    of through the impugned order by the 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 03.02.2020 and restore
    Appeal No.54/2018 to the file of the NGT so as to enable it
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    11
    to reconsider the appeal by taking into consideration the
    report of the Joint Committee prepared in O.A.
    No.602/2019, which shall be made available to the NGT by
    respondent No.7 herein. It is made clear that in the
    circumstances under which the order dated 03.02.2020 is
    set aside, the validity or otherwise of the EC will remain
    subject to the fresh decision that would be taken by the
    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.
  11. Taking note of the urgency indicated by the learned
    Senior Counsel for the appellants we request the NGT to
    dispose of the appeal after reconsideration within a period of
    six weeks from the first date on which the parties appear
    before the NGT. For the said purpose the 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 the NGT. The
    NGT shall also provide opportunity to all the parties to put
    forth any additional documents or objections if any to the
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    12
    report and thereafter consider the matter in accordance with
    law.
  12. In the result, the appeal is allowed in part. The order
    dated 03.02.2020 is set aside and the matter is remitted to
    the NGT to restore Appeal No.54/2018 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.
  13. Pending applications, if any, shall stand disposed of.
    ……………………………CJI.
    [S.A. BOBDE]
    ……..………………………,J.
    [A.S. BOPANNA]
    ………….…………………,J.
    [V. RAMASUBRAMANIAN]
    New Delhi,
    August 11, 2020
    CA No.1713 of 2020