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Judgment
This original application No. 04 of 2015 has gained access to this Tribunal under provision of Section 18(1) read with section 14 and 15 of the NGT Act, 2010 (herein after referred to the Act). The applicant Society for protection for culture, heritage, Environment Traditions and promotion of National Awareness (for short CHETNA) is represented by executive officer. The same applicant has also preferred an Appeal No. 97/2015 under provision of Section No. 18 (1) read with section 16 of the National Green Tribunal Act, 2010.
As both these cases are directed against same project activity undertaken by Respondent No. 3 - Central Industrial Security Force and Respondent No. 4 - Bureau of Police Research & Development. The application and the appeal are clubbed together for consideration and we are disposing by this common order.
In both the cases the Applicant and the Appellant have brought the Union of India represented by Ministry of Environment and Forest & CC (for short MoEF) as Respondent No. 1; Delhi Pollution Control Committee (for short as DPCC) as Respondent No. 2; Central Industrial Security Force (for short, "CISF") as Respondent No. 3; Bureau of Police Research & Development (for short, "BPRD") as Respondent No. 4; National Crimes Records Bureau (for short, "NCRB") as Respondent No. 5 and Sub-Divisional Magistrate, Dwarka (South West) (for short as CISF) as Respondent No. 6.
The Original Application No. 4/2015 was filed in the first instance and in response to the notice issued the above respondents have entered appearance. Subsequently, in Appeal no. 97/2015 upon notice by this Tribunal the above referred respondents have entered appearance. Service is complete and each of the respondents have filed their replies to the averments in O.A. NO. 4/2015 and grounds in appeal No. 97/2017.
We have heard substantially the learned Counsel Mr. Anil Sood representing applicant/appellant CHETNA and leaned Counsel representing respondents in supplementation to material on record.
Before we averred the factual and legal issues raised by the contesting parties reference to the factual matrix is necessary. It is:
The applicant in O.A. No. 4/2015 claims to be Society for, Environment protection and has raised a dispute before this Tribunal relating to Environmental protection. They have averred that the area of Delhi Ridge is being devastated due to construction of Respondent No. 6 and Respondent No. 2 through Respondent No. 5 in this green area resulting in depletion of forest cover at an alarming rate. It is alleged such activity, if allowed to continue, will have a appalling consequences to the lung space of Delhi, affecting lives of residents. To support this contention it is averred that the Delhi Ridge, the lungs of the city of Delhi forms an important ecological area of environmental importance to the national capital territory of Delhi. The Delhi Ridge Consists of a total area of 7,784 Hectares and is divided mainly in 5 separates zones namely-Northern Ridge, Central Ridge, South-Central Ridge, Southern Ridge and Nanakpura South-Central Ridge The Delhi Ridge is home to various flora and fauna as of great ecological importance. The Ecological sensitive area is also known as Asola Bhatti Wildlife Sanctuary, Aravali Biodiversity park are integral part of this zone. It serves as natural habitat for variety of flora and fauna of great significances in global endeavour for protection from extinction.
The applicant/appellant have averred that it is reserved forest as notified vide F.10 (42)-1/PA/DCF/93/2012-17 issued by Government of NCT in 1994 under Section 4 of the Indian Forest Act 1927 and forms part of the Draft MPD "Master Plan for Delhi" 2021 put on the website of Respondent No. 2, copy of the same is at annexure 1.
The applicant/appellant is non-governmental non- profit organization working for protection of Couture, Heritage, environment, tradition and promotion of national awareness which has its main objective to ensure pollution free atmosphere and unexploited environment. It has initiated action seeking the following relief from the Tribunal:-
1) Highlighted rampant deforestation causing 'Global Warming';
2) Highlighted impact of missing public transport on Environment
3) Exposed the fact of complete collapsed drainage system of Delhi and corrupt practices in de-silting of drains:
4) Protection of ridge in and around Delhi'
5) Suggested modification in Master Plan for Delhi Vision 2021(MPD 2021)
6) Wastage of fuel etc and similar actions.
They further rely on notification F.10 (42)-1/PA/DCF/93/2012-17 issue under section 4 of Indian Forest Act 1927 by the Lt. Governor of NCT of Delhi which mandates as follows:-
a. "northern Ridge in the National Capital Territory of Delhi Surrounded By.....;
b. Central Ridge in the NCT of Delhi, Surrounded by.....;
c. South Central Ridge in the NCT of Delhi, Surrounded on:
i. North by Qutub Institutional Area,
ii. South by Vasant Kunj, Kishan Ganj,
iii. East by Aurobindo Marg, Nazarika Bagh,
iv. West by Jawahar Lal Univeristy Road, Vasant Kunj, Mehrauli, (Approx. Area-626 ha)
d. Southern Ridge in the NCT of Delhi, Surrounded on:
i. North by Power Line from Mahipalpur to Sultan Gauri Tomb, Telephone line from Sultanpur Gauri Tomb to crossing of Main Power line & Road...........,
ii. South by State of Haryana,
iii. East by Surajkund Road and State of Haryana,
iv. West by State of Haryana.......(Approx. area 6200 Ha.)"
That, it is submitted that the area surrounding the Mehrauli-Mahipalpur road was duly declared as reserved forest by the GNCT of Delhi, the Respondent No. 3 herein.
That, it is further used even the Respondent No. 2 has also recognized the 'Reserved Nature' of the said land as is reflected in the Public Notice issued by the Respondent No. 2 for Suggestions and Objections from the public preparatory to the Master Plan for Delhi 2021. The relevant text of the said notice is as under:
" under Notification, dated 2.4.1996 under section 154 of Delhi Land Reforms Act, 1954, a total of 4,207 Ha of Gram Sabha land has been notified. The Forest Department, GNCTD has set up a Special Task Force to reconcile the land categorization and consolidate the area under the Southern Ridge consisting of 21 villages namely - Aayanagar, Satbari, Chhatarpur, Ghitorni, Deramandi, Rajokri, Devli, Rangpuri, Jaunapur, Mahipalpur, Mehrauli, Asola, Nebsarai, Tuglakabad, Pulpehladpur, Saidulajab, Rajpurkhurd, Bhatti, Sahoorpur, Maidangarhi, FatehpurBeri. The area commonly known as the Ridge which is proposed as Reserve Forest is under management control of different agencies. The area has not been demarcated or delineated on ground"
Besides, they rely on the judgment of the Hon'ble Supreme Court dated 17.10.2006 in the case of T. N.Godavarman Thirumulpad Vs. Union of India & Ors in W.P. (Civil) No. 202 of 1995. A brief extract of the judgment is as follows:-
" In other words, the proposal of the DDA called "The International Hotels Complex" in South Delhi is to be understood as that for the area of 315-92=223 hectares as shown in the DDA's Proposal itself. This clarification of this Court's order dated 13.9.1996 has become necessary on account of the fact that the concerned authorities are construing the order dated 13.9.1996 to operate also in respect of the aforesaid constraint area of 92 hectares in addition to some other areas which are even outside the area of 315 hectares. However, it is made clear that the petitioner and all other similarly situated outside the 223 hectares of the area of the proposal of the DDA are required to abide by all the conditions of clearance from the environmental authorities including taking the measure necessary for checking pollution and other requirements of law"
With above set of facts the applicant and appellant contend that on 14th March, 2014 the applicant/appellant noticed massive construction and approached the Respondent No. 2 DDA with an application under Section 6 of RTI seeking relevant information about allotment of land to CISF and BPRT-Respondent No. 6 & 7 in O.A. No. 4/2015. There grievance is that the RTI application was not answered by the concerned authority and information furnished was too insufficient and against the request so made. They further filed application under RTI but the authority continued to avoid furnishing of the information by transferring application from one officer to another thereby defeating the purpose and failing to furnishing the required information for obvious reasons to avoid disclosure of true facts. Alleging that the inaction on the part of the concerned respondents lead to non-availability of the required information however they have presented the application for action by this Tribunal.
However, they contend on the basis of further information gathered from BPRT and the reply of RTI application dated 23rd December, 2014 that the Respondent No. 7 had approached the DDA on 21st November, 2008 seeking transfer of land measuring 3.03 Hectare which according to the applicant is part of Ridge as mentioned in para 8 of the application, for setting up of BPRT Headquarter action is initiated. That, the possession of land was taken over by BPRT on 16th June, 2009.
In view of the information the applicant sought answer from the Respondent No. 2, 6 & 7 about the grant or receipt of environmental clearance from the MoEF Respondent No. 1 in terms of the direction of the Hon'ble Supreme Court in the case of T. N. Godavarman Thirumulpad Vs. Union of India & Ors in W.P. (Civil) No. 202 of 1995 dated 17th October, 2006. Relating to para 12 of the judgment which reads as follows:
"However, it is made clear that the petitioner and all other similarly situated outside the 223 hectares of the area of the proposal of the DDA are required to abide by all the conditions of clearance from the environmental authorities including taking the measure necessary for checking pollution and other requirements of law"
On the basis of above said facts it is alleged that allotment of land to CISF and BPRD is otherwise illegal since it is a protected forest as held by Hon'ble Supreme Court in the case citied supra and in view of the applicability of the provisions of the Forest Conservation Act, 1980. Coming to the specific allegations that land allotted to Respondent No. 6 & 7 is around the Mehrauli-Mahipalpur Road as a notified Ridge, it is urged that it is a protected forest under Notification of 1994. The Area in question is part of 'landing funnel' owing to its proximity to the Indira Gandhi International Airport. The Airport Authority of India (AAI) has violated all direction of the Supreme Court and has to answer about the construction activity in the IGI Airport.
Thus, they contend that project and construction activity of the Respondent No. 6 & 7 is illegal and it has to be restrained. According to them the Respondent No. 2 had not demarcated geographical boundaries of the Southern Ridge as well as Central Ridge despite numerous directions of the Hon'ble Apex Court in that regard. They rely on the letter of the conservator of Forest dated 03.12.2003 which confirms this opinion. It is further alleged that Respondent No. 5, 6& 7 have commenced construction without required permission under Environmental Protection Act, 1986 and also Municipal Laws. They have not obtained structural stability certificate from the SDMC as required under Section 3 of Part 2 of the National Building Code of India 2005. They have not obtained Environmental Clearance from the MoEF/State Environment Impact Assessment Authority in view of the judgment of Hon'ble Supreme Court in the case of T. N. Godavarman Thirumulpad Vs. Union of India & Ors in W.P. (Civil) No. 202 of 1995. There are no study reports with regard to adverse impact on environment and MPD 2021 has been modified by Respondent No. 2 drastically by changing rationale of a public document without complying with the mandate of Section 11A of DDA Act, 1957. Since, MPD 2021 was prepared taking note of the direction of Hon'ble Supreme Court it should not have been modified or altered. Respondent No. 2 has failed to follow the procedure laid down under Section 11-A of the DDA Act, 1957, thus the original draft MPD 2021 has to prevail.
Several other factual aspects have been urged in the Application which need not be incorporated in this judgment as substance of case projected by the Applicant is that the project building activity of Respondent No. 6 and 7, through Respondent No. 5, is without legal sanction. It's project is without obtaining environmental clearance and a project without requisite sanction from the authorities. Its project has commenced on the land which is protected forest and a ridge. That the DDA has allotted land in contravention to provision of Section 4 of the Forest Act and other Environmental laws and has unjustifiably modified MPD 2021.
It is a case of the applicant that the construction activity of the Respondents 6 & 7 through Respondent No. 5 is on Ridge and thus is impermissible the project has to be injuncted from proceeding further. The applicant also sought direction against Respondent No. 2, 3 & 4 to fix or produce geographical boundary of the Ridge in NCT Delhi. They also seek direction to declare that the Ridge is inviolable and has to be directed by all the authorities.
As regard Appeal No. 97/2015 is concerned the genesis is grant of Environmental Clearance to the Respondent No. 6 & 7 by MoEF post commencement of the construction activity and destruction of eco-sensitive zone by Respondent No. 6 & 7 through Respondent No. 5.
The factual aspect pleaded in the appeal memo are virtually the same as material proposing in O.A. No. 04/2015 except the ground assailing the ground of Environmental Clearance to the Respondent No. 6 & 7. Therefore, we may not make reference to the factual aspects in the appeal which is the same and we have already referred to it referring to the pleading in O.A. No. 04/2015.
The ground questioning Environmental Clearance is that the Environmental Clearance has been granted without following necessary procedure of public hearing. Hence, it needs to be quashed.
The objection raised by Gram Sabha of the concerned area against the grant of Environmental Clearance has been ignored rendering the Environmental Clearance to be illegal.
That, post facto environmental clearance could not be granted to a project as it comes within the mischief of the order passed by this Tribunal on 7th July, 2015 in the case of S.P. Muthuraman Vs. Union of India. The subsequent part of its decision is as follows:
"152. To obtain Environmental Clearance prior to commencement of any activity or project is the mandate of law. This language has to be given its prior and purposive meaning. It is undoubtedly mandatory. When the law mandates prior approval, it ought not to be averred as post activity approval or ex-post facto permission."
They also rely on the judgment of Hon'ble Supreme Court in the case of Intellectuals Forum Triupati V. State of A.P. AIR 2006 SC regarding states responsibility to protect environment in furtherance of safeguarding lives of the people as mandate under Article 14, 19 & 21 of the Constitution of India.
Thus, they seek quashing of EC granted to Respondent No. 3, 4 & 5 which is impugned
In the reply filed the defense taken by all the respondents is same in both cases.
The Respondent 1-MoEF has not filed its response in the Original Proceeding in O.A. No. 4/2015 nor in the appeal 97/2015.
From the reply filed by Respondent No. 3 & 4 we find the defense taken is common. Respondent No. 3 DDA admits that the property in question on which the project is being constructed by Respondent 5 for on behalf of Respondent No. 6 & 7. is under its administrative control. They also admit that despite limited resources they are taking all steps to protect "Delhi Ridge" from unauthorized activity "illegal construction". Referring to the pleadings of the applicant they have declined to comment on the averments in paragraph 2 and similarly they have chosen not to traverse the submission in paragraph 3 of the application and appeal memo. However, they contend that grant of environmental clearance is not within their realm and that, Respondent No. 6 & 7 have not contacted them in this regard. Regarding the contentions of the applicant the land in question are notified as reserve forest or Ridge they have referred to notification issued in this regard which defines physical boundary of the Ridge. Regarding averments in paragraph 4 they contend that DDA has constituted Special Task Force (for STF) for survey and demarcation of Southern Ridge. The draft report pertaining to the Mahipalpur is produced before the Tribunal. Relying on it, it is contended that the project work in question is not on the land/areas identified as proposed Reserved Forest. Similarly referring to paragraph no. 5 they have reiterated that constructing activity is not on the area identified as Reserved Forest and again relied on the report of the STF. Coming to the submission in paragraph 6 they admit that the Hon'ble Supreme Court vide its judgment referred to in that paragraph has issued direction to be complied by them. The submission made by Respondent No. 3 & 4 in the paragraph 8 is very relevant they have taken stand that work of construction that is going on in the area in question has no clearance or permission granted by the Forest Department. However, they hasten to add that it is not on the reserved forest as reported by the STF. Regarding the averments in Paragraph 8 it is averted that no land in village Mahipalpur has been acquired by Respondent No. 3 & 4.
Regarding the applicant's allegation that the information sought for by him through RTI application has not been answered, they contended that the letter sent by the STF to the applicant was received and he is guilty of avoiding the reply sent.
Submission made in paragraph 13, 14, 15, 16, 17 & 18 of the application are not traversed. From the substance of the defense taken by the Respondent No. 3 and 4 it could be gathered that the Respondent No. 3 & 4 have not categorical stated that the project activity is either legal or illegal accept that the project activity is on the land notified as Reserved Forest on the Delhi Ridge.
The applicant has filed a rejoinder to the counter by Respondent No. 3 & 4 in which the applications have reiterated that the relief sought by him is against respondents who are Statutory Authority required to fulfill the mandate of Article No. 51 (A) (G)of the Constitution of India who are responsible for deforestation of the Reserved Forest and allowing construction of complex in the ecological sensitive area contrary to the order of the Hon'ble Supreme Court. The NCT is rendered most polluted city of the world leaving 20% of the Forest Cover as against 33 % and for such a situation all the respondents are responsible. They have acquired huge portion of Delhi Ridge for construction of residential complex of Respondent No. 6 & 7 without being sensitive to the devastation caused to the Delhi Ridge and Reserve Forest. The applicant has reiterated averments in the application in Paragraph 6 of the rejoinder to contend that the project activity of the Respondent No. 6 & 7 is without obtaining Environmental Clearance required as per notification of MoEF Dated 14.09.2006. According to the applicant soon after he raised this issue Respondent No. 6 & 7 has been granted Environmental Clearance in hasten breaching all norms and procedural requirements for grant of such Environmental Clearance. He has relied on Section 23 and 24 of Indian Forest Act, 1927 to bring home the point that no right acquired or reserved forest except provided in the Act.
He further denied the truth of the submission in the reply of the Respondent No. 4 that the project activity of Respondent No. 6 and 7 is not on the Southern Ridge of the notified forest. Several other issued are raised in the rejoinder which we feel may not be incorporated here but some has not been denied or traversed by Respondent No. 3 & 4 we shall consider this fact while analyzing the grounds.
The Respondent No. 5 in its counter affidavit has raised a preliminary ground to question maintainability of the application, on the question of jurisdiction and limitation. The averments in paragraphs 4 are relevant. The respondent no. 5 has averred that the land in question was granted by Respondent NO. 2 DDA comprising khasra Nos at Mahipalpur to CISF (R-6) for construction of infrastructure. Similarly land was granted to Government Building Security (GBS) and other office for the Bureau of Police Research and Development (BPRO) Headquarter in the year 1999 itself that that, the land in question is meant for Government Use (undetermined) and partly commercial land as per the MPD 2021. The Respondent No. 6 CISF has entered into Memorandum of Understanding with them i.e. Respondent No. 5 on 27.09.2012 for construction of the structure. Respondent No. 5 claims to be Government of India undertaking who has been granted administrative approval cum expenditure sanction for the project in the sum of Rs. 99.72 crores for construction of infrastructure for residential and non residential building at CISF Campus as also Government Building Security (GBS). They contend that Respondent No. 5 National Building Construction Corporation (NBCC) is executing agency. As per the MoEF the 36 month time stipulated i.e. till March, 2016 is fixed and in term thereof the construction commenced in April, 2013. They claim the construction approach completion to a stage of 75% of the project. 8 building meant for accommodating CISF staff one building is to house Dog Kennel is complete and handed over to CISF. They further admit that Respondent No. 2 has allotted 3.063 hac. of land in Mahipalpur on 16.06.2009 to the BPRD for construction of BPRD headquarter and NCRB. They contented the land allotted was meant for Government use (undetermined) as per MPD 2021. Thus Respondent No. 7 entered into MoU with them on 27.09.2012 to construct building as part project at the cost of Rs. 117.34. Thus, they justify construction of building for these two entities in terms of MoU referred to above and denied all allegations. On the contrary that the project activity undertaken by the Respondent no. 5 is illegal and impermissible in law.
In the subsequent paragraph of the report they have reiterated the same contentions by way of para-wise reply to which we feel is in detail and reference need not be made. However, the substance of their defense is the land/area on which project activity relating to construction of infrastructure for CISF and building complex for BPRD and NCRB is on Khasra No. 976/1, 976/2, 976/2, 977/1, 977/2, 978, 979, 999, 1003, 1004/1, 1005/1, 1006 and 991/2/1, 1002, 1004/2, 1007/1/2 are not part of reserve forest or Delhi Ridge. They gain support to their contention relying on the letter issued by the Forest Department and wildlife, Govt. of NCT of Delhi dated 05.02.2015 in answer to queries raised by CISL unit GBS (Respondent No. 6 & 7). From such contention it is brought on record that some part of Khasra No. 1007/1/2 falls under the Morphological Ridge which requires approval of the Ridge management Board for Non Forestry activity. However, they add to the contention that there is no construction activity on that part of the khasra No. 1007/1/2 thus letters dated 02.02.2015, 5.02.2015 marked as annexure R-5/2 to R-5/3 respectively are relied. In short they have bailed out Respondent 6 & 7 of the accusation that they are building their project on the Reserve Forest or Delhi Ridge. With this we shall now proceed to consider the stand of Respondent No. 6 & 7 about the allotment by DDA on which that instant project activity is going on.
Before we advert to their contention it is necessary to note that interest between Respondent No. 6 & 7 is not in conflict and that most of the contentions are similar and hence we will only refer to substance of their contention. We are therefore taking into consideration the reply of Respondent No. 7 as well. The averments in para 1 & 2 filed in reply of the Respondent no. 6 and similarly averments in para 1-5 of the reply of Respondent no. 7 is the same. In these paras both have chosen only to make submission admitting to the fact that they are in the process of executing the project. In subsequent paras they have questioned maintainability of O.A. No. 4/2015 on the question of jurisdiction as also the limitation but have not denied that the issue raised in the application falls within the ambit of jurisdiction of this Tribunal under Section 14 of the NCT relating to environment.
Their contentions regarding the factual aspect is that the CISF is an armed force of the Union of India and assists the task of providing security cover to Government building, Airport, Delhi Metro and other public undertakings. It also provides security duties to the VIPs and in performance of such security duty it is essential to provide them with residential facility, hence the project is undertaken. Keeping the essential services which they are rendering the Ministry of Home Affairs (MHA) vide letter dated 30.09.1996 issued approval and therefore it was approved by MHA and vide letter dad 09.01.1997 they ordered acquisition of land measuring 8.8 Hac(21.726 Acres) from DDA at Ghitorini (Vasant Kunj) the issue was taken up by DDA and at the cost of Rs. 4,35,72000/- the allotment was made. Vide provisional order dated 05.06.1996 produced at annexure R-6/2 page 23 to 26 they have then referred to exchange of communication between director (LM) HQ, DDA dated 15.09.1997 conducted survey and reporting that land comes under green belt and request cannot be accepted and they asked to suggest alternative land pursuant to which matter was taken up by MHA in February, 1999. Considering these objections so raised MHA vide its letter of sanction 03.03.1999 permitted acquisition of land measuring 12.51 at Mahipalpur, New Delhi at a cost of Rs. 5.64 crores on the terms and conditions stated above by the DDA dated 19.02.1999. Thus they have brought on record that first allotment of land to the extent of 21.726 Acres as Gitorini (Vasant Kunj) form only part of the Ridge and thus it was changed and fresh site located at Mahipalpur regarding which acquisition proceeding of 12.51 acres and allotted to them. On the set of these facts they contended that subsequent allotment was giving is within the rules and therefore the project activity is legal and permissible under law. We have already referred to para supra defence of Respondents No. 3 & 4 have denied the letter of various department dated. 05.02.1999 in which they have unequivocal terms stated that land in question is not reserve forest and it does not come within a mischief of notification issued in 1997 to define reserve forest of the Ridge.
In paragraph 5 & 6 they have referred to follow up action pursuant to the allotment of land payment of amount of sum of Rs. 5,64,20,100/- on 12.03.1999 for land measuring 8.68 acres and land allotted to research bureau. The execution of the entire land appears to be 15.51 acres in favour of CISF out to which physical possession delivered is 8.68 acres. These details will be relevant in view of the preliminary objection raised by Respondent n. 3 regarding jurisdiction of Tribunal to entertain the present application.
In para 6 they have referred to the land in question being shown in MPD 2001 as agricultural land. Since, such entry was found the project proponent vide letter dated 07.11.2000 requested for change of land use to Member (Finance), DDA to which they have received reply on 20.12.2000 that the matter was taken with the Planning Department of DDA and it was clarified that as per the approved Zonal Plan, the land is an isolated pocket in 'Government land (use undetermined) and therefore construction activity be taken up by Respondent No. 6. Copy of the reply was received on 20.12.2000 annexed at annexure R-6/8 at page 38. Thereafter DDA delivered the possession of 3.88 acre to CISF vide letter dated 14.06.2001 annexed at annexure R-6/9 at page 39. In the 3rd phase DDA vide letter dated 11.11.2002 allotted 03 acres at Mahipalpur. The said allotment letter is at annexure R-6/11. Thus, they claim they have taken physical possession and ensured on the allotted land commenced the project activity.
We need not refer to the further details which show the split allotments one after another. As the issue under consideration as to whether the project activity is on the land of reserved forest or the Ridge, the submission in rest of the paragraphs is in the nature of jurisdiction, the construction activity based on NoC, sanction for building etc granted to it by the DDA and other Competent Authority.
Respondent No. 6 has filed detailed chronology of event that followed before actual commencement of the activity and thereafter the action taken by it against several issue raised by different stakeholders. It suffices to record that whole contention is that the land in question is not part of the Delhi Ridge or the Ridge Foret which is main challenge opposed by the applicant. Since, we do not wish to refer to this chronology of event as pleadings are aplenty which is more or less repetition of the facts.
Respondent No. 7 as stated in para supra has fallen in line with Respondent no. 6 and urged similar defense except the fact that it is beneficiaries of the allotment of the land by DDA to the extent of 3.06 hac at Mahipalpur on subsequent allotment for additional piece of land on different dates. Relevant details are in para 1 to 11 of the reply which can be referred to in classification as required. However, for our purpose the substance of it is that the DDA has allotted the land which is neither Reserve Forest nor Delhi Ridge, after following required procedure and MHA has taken into consideration the urgent need of BPRD to house it in a suitable building for performance of its function and duties. The grant of administration sanction to it in the sum of Rs. 117.35 crores is detailed in para 9 in the statement of objection which is not disputed by the applicant. Regarding the nature of the land it has urged similar defense and has added to say that it has also obtained NoC from the Archaeological Survey of India for the proposed construction of Mahipalpur.
As regarding the grounds in appeal no. 97/2015 is concerned, the post facto grant of Environmental Clearance to Respondent No. 6 & 7 has been assailed. The defence taken by Respondent No. 6 & 7 is that though belatedly, yet the grant of Environmental Clearance and permission they are proceeding ahead with the project and it is not illegal or impermissible in law. Therefore we need not refer to further details in the objection stated in the appeal memo and facts related to the nature of the law as detailed in O.A. No. 4/2015.
The applicant has chosen to file a rejoinder to their replies as against reply of the respondent no. 6. The applicant has reiterated that land in question is the Delhi Ridge and that the project activity having being commenced without environmental clearance from the respondent no. 1 renders the project illegal requiring to be injucted. There is reiteration of the fact only in the report with reference to the information gathered by the applicant through RTI application dated 19.10.2014. The only new aspect urged is that the RTI information reveals change of land use was notified on 05.11.2014 till then the land was part of the land of forestation as per notification issued in 1994. Therefore, the applicant has urged to consider the malafide in the action of DDA in modifying the earlier notification issued in 1995 by the notification dated 05.11.2014 to exclude this land beyond their aforestation.
However, we notice that the copy of the notification produced by him is the preliminary notification inviting objection from the public. The other averments in the rejoinder are either reiteration of the facts or allegation in the application or denial of the pleadings of Respondent No. 6 & 7 that they have complied 75 % of the project.
ANALYSIS OF THE GROUND CONTENTIONS ON FACTUAL AND LEGAL ASPECTS:
Persuasive arguments of the Learned Counsel for the applicant and assertive contentions on behalf of respondents that the project activity against the relief sought in O.A. No. 4/2015 and appeal 97/2014 has received our serious contention. Learned Counsel for the applicant, apart from its original submission, filed brief submission note "page 438" in which para 3 he has referred to certain admission of facts regarding construction of the project. According to the tabalised submissions the project commenced in April, 2013, O.A. No. 4/2015 was filed on 7.1.2015. The issuance of notice of application and grant of interim order by the Tribunal on 26.03.2015 and post facto grant of Environmental Clearance on 19.06.2015 and vacation of interim order of stay on 13.07.2015. Referring to the above details of the pleadings, he submits that the project of the respondents was admittedly impermissible from the time of its inception. The grant of land by the DDA was much before they issued notification against aforestation in 2014 vide notification No. F. 10(42)-1/PA/DCF/93/2012-17. The second contention is that the project commenced without obtaining Environmental clearance which was mandated by MoEF notification of 2006 which is contravened by the Project Proponent or the respondents. It is admitted fact that the project activity of CISF and BPRD has no Environmental Clearance when they entered into MoU with the Respondent No. 5. Admittedly the project activity included excavation of civil work on the land in question which bears Khasra No. 976/1, 976/2, 976/3, 977/1, 977/2, 978, 984, 985, 986,987, 988, 989, 90, 991/1/1, 996/2, 991/2/1, 1002, 1004/2, 1007/1/2. So far as the project activity of Respondent No. 6 and the land allotted to Respondent No. 7, the Respondent No. 2-DDA have taken a firm stand that allotment was made not of the land which forms part of Reserve Forest or Delhi Ridge. Similar defence is found in the submission of Respondent No. 5. The project proponent who is constructing project for Respondent No. 6 &7. According to their contention the defence which the applicant did not substantiate was factually incorrect. Land in question referred to above allotted to CISF was not a reserve forest this contention is supported by the letter issued by Forest Department, NCT of Delhi dated 05.02.2015 which is actually in reply to the clarification sought by CISF that some part of Khasra No. 1007/1/2 falls under the morphological Ridge and requires approval or Ridge Management board for non-forestry activity. The land in rest of the khasra numbers as clarified are not coming within mischief of their restriction. There is no denial by applicant or Respondents to this fact. Therefore we come to the permission that accept to land "whatever its" in survey 1007/1/2 which is shown in morphological ridge requiring request approval of the competent authority. The rest of the area in different survey no. does not come under the mischief of this description.
There is a clear assertion by Respondent no. 6 & 7 that their project activity is only in the land in different survey numbers referred to above except this land Survey No. 1007/1/2. In other words this land is not included or no project activity is going on. But the fact remains it is part of the allotment made in favour of Respondent no. 6 by the DDA vide letter dated 29-04-2009.
We at this juncture shall refer to the proceedings before the Tribunal in O.A. No. 4/15 presented before this Tribunal on 14.01.2015. Notice was issued to all the respondents. In response thereto they have entered appearance on 20.01.2015. Applicant sought for interim orders on 16.02.2015 for which purpose we posted the case to hear on 20.01.2015 and then the case was called on 26.03.2015. Considering the submissions and the reply filed by Respondent No. 5 & 8 it was noticed that Respondent No. 6 &7 were proceeding with activity without obtaining Environmental clearance. The submissions of objection by Respondent No. 8 also revealed that they have not applied or obtained Environmental Clearance. However, oral submissions were made to the Tribunal that it was not a forest land and consequently forest clearance was not required. This Tribunal noticed that the documents filed by the Respondent itself shows that the project proponent, Respondent No. 5 and Respondent No. 6 & 7 had applied to the forest and wildlife Department seeking permission which has not yet been considered.
Therefore this Tribunal injuncted the project activity vide order dated 26.03.2015 which is as under:
In view of the above, we direct that no project activity would be carried on by the project proponent unless they obtain Environmental Clearance from SEIAA/MoEF as they case maybe. The learned Counsel appearing for Respondent No. 5 submits that they have already applied to MoEF for seeking Environment Clearance. The learned appearing for MoEF is directed to expedite the consideration of the said application.
Thereafter it is evident as on 26th March, 2015 also the Respondent No.6 & 7 had not obtained either permission from the Forest and Wildlife Department, NCT of Delhi or Environmental Clearance from the MoEF.
The project activity therefore was stopped and restraining orders continued. Thereafter on 13.07.2015, M.A. No. 652/2015 was filed by the Respondents seeking modification of the interim order dated 26.03.2015 they relied on Environmental Clearance certificate granted on 19th June, 2015 in favour of the Project Proponent.
Though the applicant opposed any modification of the interim order this Tribunal passed following order on 03.07.2015 permitting the project activity to carry on subject to certain conditions which are as under:-
M.A. No. 52 of 2015 & M.A. No. 650 of 2015
We have heard the learned counsel appearing for the parties. Vide our order dated 26th March, 2015 we had injuncted the Project Proponent to carry on any construction till it obtains the Environmental Clearance from State Level Environment Impact Assessment Authority/ MoEF as the case may be. The copy of the Environmental Clearance dated 19th June 2015 obtained by the Project Proponent has been placed before us.
In light of the above, to that extent order dated 26th March, 2015 stands complied. The Project Proponent can continue its activity. This however is subject to the following conditions:
That this is subject to the final decision of the main Application as even recorded in our order dated 26th March, 2015.
It is without prejudice to the rights and contentions of the Applicant to challenge the Environmental Clearance granted to the Project Proponent in accordance with law.
With the above directions, M.A. No. 52 of 2015 and M.A. No. 646 of 2015 stands disposed of
Respondent No. 6 has taken advantage of the order dated 3rd July, 2017 and have proceeded with construction. At the time of final hearing it is urged that the construction of the project had reached 75% at the time the application was filed by the applicant and has reached final stage. However, there is no clarification as to what is the stage of construction when interim order of stay was passed on 26.03.2015. Be that as it may, applicant has not disputed that as of now Respondent No. 5 has completed the project for Respondent No. 6 & 7 and it is almost at the stage of completion.
At the time of final hearing the Respondents are feeling safe to contend that the construction activity is part of the project continued by virtue of legal sanction they have obtained as also in terms of the Environmental Clearance granted on 19.06.2015 and was permitted by this Tribunal. Therefore such project activity is not amenable for questioning by the applicant and such project activity cannot be declared as illegal. Such defence needs to be discounted for the reason order passed on 03.07.2015 was subject conditions that the project proponent and Respondent No. 6& 7 will neither claim equality nor will advance any defence. Thus, this Tribunal permitted it and is subject to final decision of this case. However on the admitted facts, we have to take decision of the legality or otherwise of the project.
From the contention of the applicant and the defence taken we have noticed that applicant's main ground is that the allotment of land by the DDA for these two projects is forming part of the Delhi Ridge and is a notified forest. The applicant has admitted in the chronology of the events filed that the project activity commenced actually in the month of April, 2013 and the application was moved before the Tribunal the year 2015. During this period the construction of project was proceeding unabated and unchecked. In the light of this submission we find no reason to disbelieve that project had reached 75 % of completion even as on the date we first restricted further construction on 26.03.2015. Secondly, the reason for injunction was that the project had no Environmental Clearance and we had permitted the Project Proponent and the Respondent No. 6 & 7 to obtain such permission for such purpose directions was again issued to MoEF or Respondent No. 8 to consider such application expeditiously. In these circumstances on 03.07.2015 accepting this statement of Respondent No. 6 & 7 they have obtained Environment Clearance on 19th June, 2015, the order dated 26th March, 2015 was modified allowing the project to proceed. Now the question is whether the land in question is reserved forest of the Ridge. We have already referred in para supra to the letter issued by the Department of the Forest, NCT of Delhi on 05.02.2015 that except for the land in Khasra No. 1007/1/2 which comes under the morphological ridge the land in rest of the khasra no. were free from such statutory restriction. Therefore, no construction activity could proceed only in the khasra no. 1007/1/2 and not in other survey numbers. These being admitted facts the allotment of land by DDA in said Khasra No. has to be declared as not sustainable and accordingly the allotment of land by DDA vide order date 29-04-2009 in respect of allotment of khasra no. 1007/1/2 measuring 3.063 ha is hereby quashed. Respondent No. 6 & 7 shall handover the land in question to DDA which shall be protected and maintained as a reserved forest/morphological ridge.
Any construction activity on it or any damage caused to ecological on this area shall be restored by the Respondent No. 6 & 7 as may be determined by the Forest Activity. The Forest Department shall therefore take appropriate action accordingly.
Further it is noticed from the records that the CISF and BPRD after being allotted land by DDA addressed letter to the Forest Department in view of the initiation to these proceeding to ascertain whether the land in question in the ridge. The letter dated in 05.02.2015 by the Conservator of Forest at annexure R-3/5 is reply to the said query. It bears testimony to the opinion of the Forest Department that only land in Khasra No. 1007/1/2 of Village Mahipalpur comes under Mahipalpur Ridge and other lands in other khasra No. is not a Reserve Forest as per the notification issued by the competent authority and detailed in the map prepared by the GSDL. The opinion given by the conservator of forest and reliance placed by him on the map to show in the year 1994 and 1996 when the notification of Reserve Forest was issued, except land in khasra No. 1007/1/2 of Village Mahipalpur other areas where not coming under the mischief of the notification. Thus, the project activity is not barred in other areas. We have taken up O.A. No. 4/2015 and Appeal No. 97/2017 together as grant of environmental clearance is being assailed in appeal again under section 16(1)g of the NGT act to consider the question as to whether the Environmental Clearance is sustainable in view of the allegation by the Applicant/appellant the land in question is Morphological Ridge. The letter of the forest department is material. Be that as it may, the Competent Authority has granted permission for construction even in the Ridge which vests in the Ridge Management Board to whom the aforesaid Project Proponents had applied.
During hearing all these case we had directed State Government to file statement as whether the land in question come within the Morphological Ridge as alleged, in response to which affidavit has been filed reaffirming the factual aspects as referred to above. Further challenged imposed by the applicant in O. A. No. 4/2015 and Appeal No. 97/2015 is that the grant of EC (Clearance & Regulation) 2006 was absolutely essential to proceed with the construction activity as done by the Respondent No.5 as construction is huge. In short it was alleged that in view of the notification which obtaining of EC (Clearance & Regulation) 2006, compulsorily the Project Proponent had to obtain prior Environmental Clearance.
The contention of the Project Proponent that construction is less than 20,000 sq. mtrs. As we could see the grant of EC on 19.06.2015, it is assailed contending that there was no public hearing. We have perused the EC (Clearance & Regulation), 2006 which clearly carves out a explanation for granting exemption from public consultation in respect of building and construction project which are less than 20, 000 Sq. mtr. The project proponent have reiterated in their defence statement and during argument that the construction activity is not more than 20,000 sq.mtrs and thus prior public consultation was not necessary for grant of Environmental Clearance. It therefore comes under the provision at Sr. No. 8(a) of the EC (Clearance & Regulation) 2006. The project comes in the category of 'B' category project. Particularly when it is not disputed the project is not located within 10km of nay eco-sensitive area. This is evidence from the narration of certain factual aspects of the contesting parties and the EC itself.
Further the applicant and has questioned the project activity on the ground that they were using the Ground Water from the construction without obtaining no objection from the CGWA. In answer to such allegation the project proponent has stated that constructing agency is constructing the building fetching water from the tankers and utilizing it without sinking any borewell. From such statement what emerges is that though there may not be any sinking borewells/tubewells for extraction of groundwater the source of water supply is through tankers. Undoubtedly the water suppliers definitively must have extracted water or collected it from the available source which is not disclosed by the project proponent.
Taking into consideration all the aforesaid aspect we are of the opinion that the grant of EC by the Competent Authority to Central Industrial Security Force and Bureau of Police Research & Development for construction of project by National Buildings Construction Corporation ltd-Respondent no. 5 in respect of land bearing khasra No. 976/1, 976/2, 977/1, 977/2, 978, 979, 999, 1003, 1004/1, 1005, 1006, 991/2/1, 1002, 1004/2, 1007/1/2 is varied as it did not come within the reserved forest as notified vide notification dated 24th may, 1994. The letter of the conservator of forest dated 05.02.2015 has put all concerned to caution by asking them to approach the Ridge Management Authority for ascertainment by physical inspection only of the land in Khasra no. 1007/1/2 on which he had a doubt to be a Ridge.
Thus, reasonable conclusion would be grant of EC on 19.06.2015 by the competent authority is not in respect of land which is a reserved forest or notified forest under notification and thus EC is not impacted and it supports the validity of the project undertaken by the Project Proponent mentioned above as contented by them. Thus the grounds urged to quash EC are insufficient. However, it cannot escape out notice that project activity has commenced much prior to obtaining the EC and almost 75 % of the boiling construction had reached competition and also there is no information or details given by the Project Proponent about quantity of the water consumed for construction activity. Hence, an appropriate direction is necessary.
Taking into consideration all attending facts and circumstances, issuance of Environmental Clearance and the grounds urged for and against the project, we find the applicant has made out a case for restraining any construction activity only in respect of land in khasra no. 1007/1/2 of village Mahipalpur and also case for passing appropriate order against CISF and BPRD to pay environment compensation for commencement of the project without EC and for utilization of water which is not accounted for. However, we find no sufficient ground for declaring the entire project illegal or direct demolition of the structure.
In the conclusion, we allow O.A. 4/2015 partly by restraining the CISF and BPRD from utilizing land in khasra no. 1007/1/2 for building or any other project activity.
The CISF is directed to pay a sum of Rs 10 lakhs or 5 % of the project cost whichever is higher toward Environmental compensation to be deposited with the DPCC.
The BPRD is also directed to pay a sum of Rs. 10 lakhs or 5 % of the project cost whichever is higher for commencing construction without Environmental Clearance.
Both the project proponents are directed to pay sum of Rs. 1 lakh as fine for utilizing the water for commercial construction activity without valid NoC from the CGWA.
We find no sufficient ground to quash Environmental Clearance dated 19.06.2015 but the Appeal 97/2015 is allowed in part with the following directions.
Respondent Nos. 6 & 7 are directed to comply with following conditions.
I. They shall demarcate the land in khasra No. 976/1, 976/2, 977/1, 977/2, 978, 979, 999, 1003, 1004/1, 1005, 1006, 991/2/1, 1002, 1004/2 in their possession and carry out physical measurement in the presence of senior most officer to be nominated by Chairman/Vice Chairman of DDA and senior most officer to be nominated by the Chairman of DPCC.
II. CISF shall demarcate the area/land in Khasra No. 1007/1/2 and remove all structure put up therein and make it free of occupation and deliver the possession to DDA.
III. The DDA shall forthwith take possession of the said land and manage the ridge and segregate it from other land.
IV. The CISF and BPRD shall give details of the number of tubewell/borewell in their premises and extent of water drawn there from.
V. They shall forthwith install the meter for recording extraction of ground water from these borewells/tubewells and submit details to CGWA.
VI. The CGWA shall conduct physical inspection of the land and submit report within two weeks within receipt of such information and in case they find the information furnished is incorrect they may submit a report to this Tribunal.
VII. The CGWA shall file its statement as to whether the CISF have obtained any NoC for extraction of groundwater or applied for such permission from any other competent authority in view of the Notification issued by the Lt. Government under Section 5 of EC Act dated 24th May, 2004.
VIII. The DPCC shall get the buildings/structure forming part of the CISF and BPRD physically inspected and to record the total measurement and submit its report to this Tribunal within 2 months from the date of receipt of this order.
IX. DPCC shall also conduct inspection of the project for ascertainment as to whether the project is provided with STPs and provisions for MSW Collection, Segregation and disposal in the premises.
The above directions be complied spuriously and any non-compliance shall be viewed seriously.
Upon filing of the report registered as separate original Tribunal for appropriate orders. as directed, the same shall be application and placed before the
Hence, O.A. No.4/2015 is allowed partly in terms of this order and Appeal No. 97/2015 is dismissed.